El propósito del originalismo y de la autoridad frente a unenumerated rights 2

En la entrada anterior de este blog, citamos una nota de Mark Pulliam sobre "Los muchos sabores del originalismo". El debate continuó, y Mike Rappaport respondió con dos comentarios:

1- https://www.lawliberty.org/2019/03/19/mark-pulliam-and-the-old-originalism/

"The old originalism says: generally interpret the Constitution in accord with its original meaning, but do not follow the original meaning when it would confer excessive discretion on judges—that is, discretion that might allow “nonoriginalist” or “willful” judges to import their values into the Constitution. We can all understand why an originalist would be suspicious of such excessive discretion, especially in a world where such importation regularly occurs.

But that suspicion of excessive discretion, however reasonable, cannot justify an originalist ignoring the original meaning. That suspicion is a moral principle. If a “non-excessive-discretion principle” is not in the Constitution, then judges have no more right to follow it than they do to follow moral rights that are also not in the Constitution.

...He talks of “enumerated” and “unenumerated” rights. That is an important distinction, but we should not ignore that the key distinction for originalism is something else—between rights that are protected by the Constitution and those that are not. The Constitution can protect rights without those rights being enumerated.

For example, the Constitution says “No State shall... abridge the privileges or immunities of citizens of the United States.” But the Constitution does not enumerate what those privileges or immunities are. Some of them may be enumerated by the Bill of Rights (and thus allow incorporation which Pulliam decries), but I believe that the privileges and immunities of citizens extended far beyond the Bill. Judges should protect those rights, even though they are not enumerated, because they are expressly protected by the Constitution.

If one wants to treat Privileges or Immunities Clause as an inkblot, one can certainly do it. The Supreme Court has largely done that for 150 years. But that ain’t originalism."

2- Su ampliación y aclaración del comentario anterior: https://originalismblog.typepad.com/the-originalism-blog/2019/03/mark-pulliams-defense-of-slaughterhouse-a-responsemike-rappaport.html

"He could defend the courts not protecting unenumerated rights based on a supported interpretation of the Constitution rather than based on a case regarded as wrong by virtually everyone. It is true that Robert Bork argued that the Amendment could not be understood, but we have come a long way since Bork looked at these matters. Pulliam could benefit from this scholarship."

Esperemos que el debate continúe entre dos gigantes que se enfrentan, paradójicamente, en la interpretación de lo que significa el originalismo.