I'm reading a book promoting a libertarian understanding of our Constitution, one which relies primarily on text and original understanding. The book provides the usual interesting details and case citations, but also the at some level aggravating misstatements and confusions of history and simple reality. The "I told you so" crowd will note this is fairly normal for originalism, but the erroneous nature of the whole thing does annoy me. The woman is after all makes her living teaching. She did study this stuff, right?
For instance, let's take her discussion of Barron v. Baltimore, which held that the Bill of Rights does not apply to the states, written by Chief Justice Marshall in 1833. Marshall was part of the ratification of the Constitution, so is a pretty good "originalist" source. The book does not really remind us of the fact, suggesting that selective citations of sentiments of the time (or citations at some high level of idealism) is a problematic enterprise. Simply put, his argument that the Bill of Rights was not thought at the time to have been applicable to the states is a fair reading of general thought.
Madison wanted a clear listing of some limits for the states, but his amendment proposal on the matter did not pass. We would not know this from the description of the case in the book. The book is correct to say that some did think the Bill of Rights applied to the states, including some state court decisions. Why exactly is probably up to debate. For instance, perhaps, since the listing did not create rights, just enumerated a few of them (with two catch-all provisions), the listing of a certain right would be a good judge of natural rights the states had an obligation to follow. Surely, the author would agree that the rights were not created by the Bill of Rights!
The book also notes an unfortunate result of the ruling was that it helped the deprivation of rights for slaves. Sure. But, are we to believe the original understanding -- not a possible "living constitution" view of the text (which she opposes, though her stance suggests it didn't start sometime around the New Deal, which is her implication ... after all Barron violated it too!) -- was that they applied to slaves?! It is rather surprising slave states ratified amendments that by their force could be easily used to attack slavery.
[Oh, and the states gave rights to "the people" etc. and was able to avoid the issue of slavery by assuming slaves were not part of the political class who had rights. Taney in Dred Scott had somewhat of the right idea at least on that front. Again, the book doesn't seem to understand the point.]
The book also wants a clear acceptance of the Ninth Amendment, not alone in arguing that the use of substantive due process is a poor substitute. But, how exactly things would be that different -- without a different overall philosophy of rights that rises above mere words -- is unclear. If, for instance, the courts were wary about "finding" rights not clearly expressed in the Constitution, doing so via the Ninth Amendment would not likely suddenly limit their wariness. The courts have always in some fashion recognized unenumerated rights, using different language and reasoning. They in effect were loyal to the Ninth Amendment.
[BTW, the Supremes also in a few cases -- including the Casey abortion decision -- expressly referenced the amendment while interpreting rights applied to the states. So, they basically incorporated it, even if they failed to bluntly say so.]
Finally, it is unclear why we should now be so concerned about the overly intrusive state while thinking there was ever some era of nirvana. Surely, the modern state ... which brings different things to the table than 18th Century America, including the need for more regulation ... is more protective of many rights than those of past eras? How can one cite limits on what we say and do without noting the age when you can get arrested for mailing contraception literature in the mail? Or, for cohabitation and so forth, divorce often nearly impossible?
Works of this nature are useful since they provide another point of view along with historical evidence that our basic constitutional values can promote such a view while staying loyal to original principles we hold dear. The view often is one that is copacetic to my own, but I manage to be more realistic and less over the top in promoting it. There is a tendency, often seen in court opinions, of avoiding the complexity of the situation. This only convinces the convinced, and in the process, skewers the facts in various cases.
I honestly find this a less interesting path in some ways while being annoyed at the cheating. But, people more successful than moi appear to find it a better path. Oh well.