Last week I provided links to a succession of blog posts in which Kurt Lash and Damon Root debated the meaning of the 14th Amendment’s Privileges or Immunities Clause. Some of the posts were a bit snarky, but yesterday the level of civility hit a new low when Prof. Lash suggested that, while "Root is just wrong," we shouldn’t be too hard on him because he’s "a journalist and not a Reconstruction scholar."
Despite the snark, it’s been an interesting debate, and it has elicited a good deal of interesting commentary. For example, Randy Barnett (whose scholarly credentials are beyond dispute) notes that:
If Kurt is really correct about the public meaning of "privileges or immunities" of citizens of the United States, one might have expected someone on the Supreme Court to advocate that interpretation in Slaughter-House. Obviously, the four dissenters adopted the reading Kurt calls "libertarian." But Justice Miller’s opinion for the majority enforces a narrow and somewhat weird combination of a few rights that were included in the text and others that were not.
As far as Kurt’s enumerated rights thesis goes, Miller’s biographer, historian Michael Ross in Justice of Shattered Dreams writes of the claim that the majority intended to incorporate the bill of rights: "These arguments are intriguing but inconclusive due to the fact that Miller never in any of his subsequent opinions, public speeches, or extant private correspondence said that that was what he intended in Slaughter-House." More importantly, it was not what Miller wrote. Again, if this is what everyone thought the Privileges or Immunities Clause meant at the time, one would think at least one justice would have adopted that position.
Evan Bernick (who, as Assistant Director of the Center for Judicial Engagement at the Institute for Justice, is neither a "scholar" nor a journalist) raises some other issues at the Huffington Post:
Regardless of how any particular Framer may have understood the Privileges or Immunities Clause, its language is broad and abstract. It does not simply state that the Bill of Rights shall be extended to the states — indeed, many Republicans thought that the Bill of Rights already did extend to the states…. "Privileges" and "immunities" had been used to refer to natural and common law rights since the days of Blackstone — if the Framers did not want to constitutionalize those rights, it is difficult to understand why they chose such language. Lash is incorrect that this understanding would empower the federal government "to establish the national substance of everything from local contract law to marital law to public education." It would and did, however, empower the federal government to prevent systematic violations of natural and common-law rights by the states.
Lash also does not discuss the Fourteenth Amendment’s Due Process of Law Clause in any detail — a remarkable omission, given the importance of the concept of due process of law to Republican thought. The concept can be traced back to the Magna Carta, and was understood by the Founding generation to prohibit restrictions of common law or natural rights that did not rationally further legitimate, public-spirited ends…. Due process of law clauses in state constitutions had been interpreted to provide natural law protections for property rights before the Civil War and the Supreme Court had interpreted states’ law of the land provisions to protect substantive rights. There is no reason to believe that either Bingham or any other Republican in the Thirty-Ninth Congress did not accept what influential Progressive jurists would later disparage as "substantive due process" or that the Fourteenth Amendment’s Due Process of Law clause was not designed to prevent substantive unenumerated rights from being violated by the states.
As one might expect, Lash posted a dismissive rejoinder to Bernick:
My review did not address the Due Process Clause because not even Damon Root had the courage to try and resuscitate this broadly mocked doctrine. That Mr. Bernick now tries to do so provides a telling illustration of the failure of libertarian constitutionalism.
For decades, libertarians have insisted that the Supreme Court has wrongly relied on the Due Process Clause and should instead turn its attention to the Privileges or Immunities Clause….
Perhaps now, in the face of overwhelming evidence that the Privileges or Immunities Clause does not say what they want it to say, libertarians will embrace their inner Emily Litella, say "never mind," and quietly return to Substantive Due Process.
Unfortunately, this doesn’t get us any closer to figuring out how best to interpret the 14th Amendment. What’s more, I suspect it’s the kind of thing that leads to comments like this one that a reader posted in response to Lash’s original review:
Ah, a bracing example of legal scholasticism and how many angels can dance on the head of the 14th Amendment. From the formation of the union until today, the federal, state, and local governments of the United States have routinely denied the rights of citizens, and almost always with the solemn head nodding of the judiciary. As far as I can tell, the bulk of legal scholarship is simply grist for the mill of rationalizing legal judgments.
Nevertheless, I think this disgruntled reader goes too far. Whatever their failings, our federal and state constitutions and our federal and state judiciaries do protect our rights to a significant extent, and there are plenty of opportunities for conservative and libertarian legal scholars to help them do so more effectively. I have faith that, by working together, federalists and libertarians can eventually arrive at an interpretation of the Constitution that is true to its history and its text, and I also have faith that that interpretation will provide each group with much of what it wants. For the federalists it will provide more limits on the power of the federal government. For the libertarians it will provide more protection for fundamental rights like the right to own property, the right to form contracts, and the right to make an honest living. For all of us, it will help ensure that our privileges and immunities are not abridged.
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