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Modern Cases That Violate Original Meaning

Professor Michael McConnell offers three examples of cases in the 20th century that are at odds with the original meaning of the Constitution. In Home Building and Loan Association v. Blaisdell, the Court upheld a state law that was in violation of the Contracts Clause. In Lochner v. New York and Roe v. Wade, the Court struck down state laws that were clearly within state powers under the Constitution. https://youtube.com/watch?v=DfJR6oQNBe0


I think that there are some decisions of the Supreme Court that simply cannot be right in light of the text of the Constitution understood in its original public meaning. One notorious example of this is the Blaisdell case from the New Deal era in which the court upheld state laws which prevented the collection of debts. Well, this is exactly what the contracts clause of the Constitution was written to prevent. If the courts are not going to enforce the collection of the debts, then people are not going to be able to borrow. And so I think it was actually making the, made the Depression worse rather than better. They should have stuck with the original meaning of the Constitution. Another example from the early years of the 20th century is Lochner against New York. This is a case in which the court held that a law prohibiting the bakers from working more than a certain number of hours was unconstitutional. Now this is a state law. The Supreme Court instead held that states can't legislate outside of their quote, police powers, which are powers to regulate the public health, safety, welfare, or morals. And they said that this law fell outside of the police power. Well, nothing in the U.S. Constitution limits the states to police powers. And in fact, the 10th Amendment tells us quite explicitly that states are not limited when the Constitution doesn't do so explicitly. So I think Lochner is a very difficult, if not impossible, case to square with the original understanding. And then finally, for a more modern and much more contentious example, I think Roe versus Wade is impossible to square with original understanding. At the time of Roe versus Wade, at least 45, and arguably all 50 states had restrictions on abortion greater than those that the Supreme Court held were inherent in the Constitution. But the court then reasoned that because people disagree on the question of when life begins that that necessarily meant that no state would be able to legislate on the basis of the longstanding belief that life begins at conception. I think that's just simply illogical and has nothing to do with any of the provisions of the Constitution that were invoked by the court. Whether you're looking at the due process clause, or you're looking at the privileges and immunities clause, which has to do with longstanding practices and traditions. Or the Ninth Amendment, which reserves natural rights to individuals, it's impossible, I think, to come to the conclusion that the states lack the power to treat unborn children or fetuses as protectable beings.

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