Nicholas Quinn Rosenkranz: Reconstructing First Principles [NSS 2018]

Some of these texts are so familiar to us
that we have stopped looking at the actual words. We are so transfixed by the Court’s doctrine
and so transfixed by uh, modern applications, that we’ve stopped looking at the actual words. And my claim is that we can actually mine
even more meaning just from the actual words of the Constitution. The Fourteenth Amendment says, “No state shall…” So that’s different from the passive voice
of many of the uh, provisions of the Bill of Rights. Also, it has this distinctive feature, different
from anything that had come before, “No state shall make or enforce…” The First Amendment says, “Congress shall
make no law…” but the Fourteenth Amendment, “No state shall make or enforce any law.” And uh, I think that is uh, a crucial uh,
textual difference.

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