Christopher R. Green (Ohio State University (OSU)) has posted Euclidean Traditionalism (Forthcoming, Notre Dame Law Review) on SSRN. Here is the abstract:
In Bruen in 2022, the Supreme Court noted an “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government),” as Akhil Amar and Kurt Lash have suggested. The difference between the traditions of 1791 and 1868 did not matter in Bruen nor in Rahimi two years later, but the issue is definitely on the Court’s radar and will surely recur. Neither 1791 nor 1868, however, should be the temporal key for tradition-based readings of the application of Bill-of-Rights liberties to states. The relevant text of the Fourteenth Amendment-“the privileges or immunities of citizens of the United States”-is tied neither to the Bill of Rights, and thus 1791, nor to 1868. Modern technology sometimes requires the curtailment of liberties-the right to move slowly on a public road, for instance-universally recognized in a simpler time. Such an approach was most fully explained compellingly by the Court in 1926, in Justice Sutherland’s opinion in Euclid v. Ambler Realty.
This paper explains five problems each for both “1791ism” (the view that the Fourteenth Amendment requires states to abide by traditions of civil liberty prevalent 77 years before the Fourteenth Amendment’s adoption) and “1868ism” (the view that the Fourteenth Amendment requires states to abide by the meanings ascribed to the text of the Bill of Rights 77 years after that text was adopted as a restriction on the federal government). 1791ism (1) would be a very odd policy to adopt, (2) ignores the difference in responsibilities between the federal and state governments that make different rights appropriate, (3) relies too heavily on a First Congress too busy to comprehensively survey civil liberty, (4) lacks support during Reconstruction among proponents of the Fourteenth Amendment, and (5) can only work textually if federally-enumerated constitutional rights are a ceiling as well as a floor, inconsistent with the right to make contracts being a privilege of citizens of the United States, as it very clearly was under the Civil Rights Act of 1866. 1868ism, on the other hand, (1) is also a bad idea, as Euclid explains, (2) is implausible with respect to the text of the Fourteenth Amendment, which lacks any temporal language like “current” or “now,” (3) is implausible with respect to the text of the Bill of Rights, which, like the rest of our Constitution, expressed its meaning at the time of its adoption, not 77 years later, (4) is inconsistent with the Reconstructors’ view that the Civil Rights Act of 1866 was merely a first step, not a final one, and (5) does not fit the acknowledgement of emergent traditions elsewhere. Rather than focusing on 1791 or 1868, the Court’s protection of nationwide civil liberties should look, as Justice Kavanaugh suggests in his Bruen concurrence, at the prevalence of rights today. Issues remain of how long a consensus on rights must last to count as privileges of Americans generally, but at a minimum, the consensus must be alive today.
Highly recommended.