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What About Rights Didn't the Founders Recognize?

What does an Originalist do when forced to evaluate concepts that the Founders couldn’t have anticipated? Professor Michael McConnell discusses unenumerated rights that are not specified in the Constitution. In particular, he explains how the Privileges and Immunities Clause was designed to bring about national consensus on issues with a longstanding history of interpretation. Rather than giving courts the power to find and enforce novel rights, the Clause is supposed to bring varying state interpretations into alignment with well-established practices. https://youtube.com/watch?v=86e7uYS8MmE


So I think the most important objection to originalism is that there are new things under the sun, that is, there are issues that confront us today that could not have confronted, never did confront the Framers and I mean, obviously, things like plane travel were not things that the Founders knew anything about. Some of the more contentious examples of this have to do with unenumerated rights, say, the right to abortion or to protection against punitive damages, or rights that are not listed in the Constitution. How are we supposed to think about those? Well, I think that the Privileges or Immunities Clause, which is the clause which seems most directed at that question, had a history to it which tells us that privileges and immunities are determined by long-standing legal practices of the country. Thus, it's not a question of abstract moral philosophy, but rather a question of longstanding custom and tradition. And then what the Privileges and Immunities Clause was designed to do was to prevent individual states from being outliers from a longstanding national moral consensus. This is the Supreme Court's logic in Griswold against Connecticut having to do with the use of birth control because at the time of Griswold, virtually every state and, for a very long period of time, had legalized use of birth control. Connecticut was an outlier. In fact, according to Justice Harlan's concurrence, it was the only state in the Union that did purport to make the use of contraceptives by married couples illegal. And so this, I think, is a perfectly classic and legitimate exercise of the interpretive power with respect to privileges and immunities to say that the right to use birth control in that case was protected. I think that when you look at other assertions of individual rights like the right to assisted suicide or the right to same-sex marriage, that there is no such consensus. There certainly is no longstanding history. And it's particularly troubling when you think about the meaning of privileges and immunities, for the Court to say that suddenly we have privileges and immunities to do things that have never been part of the American legal tradition. When the court is doing that, it's really just setting itself up as a moral superior to overrule the decisions that the representatives of the people have been making. And I don't think that that's what the Privileges and Immunities Clause means. And I don't think it would have ever been adopted if that were what the people thought it means.

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