David Gans and Doug Kendall over at Balkinization admit that the method by which the Supreme Court has applied parts of the Bill of Rights to the states through the Fourteenth Amendment is suspect:
For the last forty years, the Court’s fundamental rights jurisprudence developed under the Due Process Clause has been dogged by persistent claims of illegitimacy. Roe v. Wade has been the target of most of these attacks, but the claims made by Roe’s attackers go well beyond Roe or even abortion rights. Justice Scalia – the most fervent of the challengers – argues that the protection of unwritten fundamental rights is simply not lawyer’s work. “The tools of this job,” he says “are not to be found in the lawyer’s – and hence not the judge’s – workbox.” But one need not reach for tools beyond Scalia’s favorites—text and history—to see that judges properly protect substantive fundamental rights not enumerated elsewhere in the Constitution. On Scalia’s own terms, his objections fall flat when faced with the text and history of the Privileges or Immunities Clause.They start out well, but then insist that using the "Privileges or Immunities" clause of the 14th Amendment gets to the same results as Roe v. Wade (1973) and Lawrence v. Texas (2003). This is incorrect. To use the P&I clause in an honest way would require us to look at what rights were generally recognized in 1868. Was there a right to eat meat in 1868? I doubt that there was even a single state law that regulated it. But for many of the examples that Gans and Kendall, such as abortion and homosexuality, there was a consensus the other direction, that these were legitimate exercises of state power in the interests of public morality. Hence, homosexual sex was a felony in every state. Abortion, at least from "the quickening" had been a criminal offense (although infrequently prosecuted) for decades, and at least some states were beginning to criminalize it in the first trimester. There was no recognized right to homosexual marriage in 1868; indeed, I suspect that if you had argued the case in print, you would likely have been prosecuted for publishing indecent material (another reminder that freedom of speech and the press, while certainly examples of "Privileges or Immunities" did not include the broad definition that the Court has recognized).
The words of the Privileges or Immunities Clause protect the substantive fundamental rights of all Americans. As Senator Jacob Howard said in the Senate debates on the Amendment: “[i]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .” Many others said the same thing, and the Amendment’s opponents never once contradicted them.
The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.
It is important to recognize the dangers of ends-based legal theories. Originalism doesn't always give us everything we want. Was there a right to keep and bear arms? Yes, but not quite as unlimited a right as I would like there be there. The only laws that interfered with the broad exercise of that right were the ones that the drafters of the 14th Amendment clearly intended to destroy by its passage--and that opponents acknowledged would be struck down. But as much as I would like it to be otherwise, I do not think that an honest assessment of the evidence from 1868 would argue that ALL modes of bearing arms were completely protected. There was certainly no consensus that concealed carry was a protected right--and many states that clearly regarded it was a grievous evil within the authority of the state to regulate.
I'm glad to see progressives acknowledging that the Due Process clause precedents are seriously flawed, and coming back to looking at Privileges or Immunities. But an honest evaluation of the evidence doesn't give them the results that they want.