Originalists Take Over The Nation
Many progressives are opposed to the Harriet Miers nomination. Thus, it was no surprise to see an article in The Nation suggesting that she be quizzed about her beliefs, and that she be pressed not to extend the rights of corporations. What was surprising was the fact that the article, by Morton Mintz, relied on the bizarre adoption of a originalist interpretation of the Constitution. Mintz’s argument — which was mostly a plain-vanilla critique of corporate rights — contains (and relies on) this gem:
Who was the “person” whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect? (The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868–soon after the end of the Civil War–proves this.)
From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.
Yes, that’s right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868. This is the interpretive methodology known as originalism — a school of thought more likely to be associated with the National Review than The Nation.
If the amendment is read in an originalist way, Mintz is right that it would probably not cover corporations. The original understanding of the Fourteenth Amendment was that it was to help slaves; that’s more or less where the original understanding ends.
Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.
Originalist arguments, similar to that Mintz employs in his article, are nothing new. A nearly identical argument — that the Fourteenth Amendment was meant to protect freed slaves, no one else, and that no further rights should be drawn from it — was made by Robert Bork in The Tempting of America. Advocates like Bork, taking the originalist methodology to its logical conclusion, have argued that originalism invalidates a whole host of civil rights and liberties.
Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?