So no matter how the incorporation debate shakes out, an endorsement of originalism would be a victory for conservatives who prize intellectual honesty in constitutional interpretation.
Seemingly aware of these implications, the Left is trying to preserve the contrivances of “substantive due process” in an originalist guise. They want to define “privileges” and “immunities” as broadly as possible, to include what Doug Kendall of the Constitutional Accountability Center calls “very important progressive values,” such as abortion rights and same-sex marriage. The goal is to continue expanding “individual rights” while permitting restriction of property rights and economic freedoms. So if the Supreme Court decides in McDonald’s favor, it could end the controversy over gun rights but begin a host of new battles in other areas.
Yet Robert Levy, chairman of the Cato Institute, is not afraid of opening a can of worms. He says that libertarians see McDonald as an opportunity “to resurrect economic liberties suspended by the Court under the post–New Deal version of substantive due process.” Conservatives should see this case as a rare opportunity to base any incorporation of the Bill of Rights on originalist grounds — an opportunity they should waste no time in seizing, for it may not come again.
June 08, 2009
[I find it very interesting that the phrase “conservatives who prize intellectual honesty” is used. What does this mean? Does it mean that most conservatives are not “intellectually honest” but liberals are? Or does it mean that no liberal can be considered “intellectually honest” but some conservatives are?
Regardless, there are those that have high hopes for the Chicago Gun Case to get us started on the path to liberty again. I admit to seeing a glimmer of that possibility but know that economic liberty is going to be a much tougher war than guns are and don’t have very high hopes. Even if the current system suffers a complete meltdown (and there are lots of indications that it will) there will still be strong resistance to liberty from those that will claim the collapse justifies even less freedom and a much great role for goverment to take in implementing a “planned economy” than it already has.
H/T to ubu52 for the link.–Joe]