Originalism and Fixing the Fourteenth Amendment
Heritage
23-05-19 03:31
Law professor and originalist Michael Stokes Paulsen has given a speech claiming that something is wrong with the US Supreme Court’s approach to section one of the Fourteenth Amendment, which he feels goes beyond decisions he feels are wrong. Paulsen believes that the current Supreme Court only enforces the last two clauses of section one - addressing the rights of all persons - rather than the first three clauses, which address the status and rights of citizens, and that the Court’s approach is resulting in a jurisprudence that lacks any relationship to the original meaning of the amendment’s ‘Due Process and Equal Protection Clauses.’ Paulsen suggests that “An increasing number of scholars now believe that the “Equal Protection of the Laws Clause” guarantees nothing more than the equal protection of the natural rights of life, liberty, and property—natural rights that belong to all persons regardless of citizenship,” and claims the current Supreme Court “leaves those three opening clauses unexamined and unenforced.”
Paulsen concludes by suggesting that the overall approach to the Fourteenth Amendment, focusing only on the last two clauses, has created an entity resembling “the terrible truth [that] is unavoidable when you and your grandson try to set the space shuttle upright on the table…. [A] terribly shaped creation that most likely will not work as originally intended.” Protest, civil disobedience, and appeals to the Constitutional amendment process are the only ways to redress the Supreme Court’s current trend, Paulsen advises.