The Right Coast

July 22, 2005
Quibble about a Quibble
By Mike Rappaport

Larry Solum has an interesting post quibbling with three aspects of a Wall Street Journal article about originalism. As long as we're quibbling, I have a quibble about one of his quibbles. After quoting the article's statement that privacy rights, such as those in Roe, have been derived based on the living Constitution theory, Larry writes:

This is really quite awful. Most originalists agree that you can't get privacy out of the due process clause, but many originalists believe that other provisions of the constitution--the Ninth Amendment & the Privileges and Immunities Clause--do support a conception of liberty that would be functionally equivalent to an impliled right to privacy.
Larry seems to be suggesting that there are a large number -- "many" -- originalists who buy into these arguments for the functional equivalent of privacy. I doubt it. While Randy Barnett has recently published a book strongly arguing for this position, and some other law professors seem to agree (I think Glenn Reynolds is one of them), it is my strong sense that this view is held by a minority of originalists and probably a small minority.

Of course, that doesn't mean this view is wrong, or that it won't eventually gain a majority of originalists. But it does suggest that it is probably fair for an article on originalism to make the assumption that originalists would be against decisions like Roe and and Lawrence.