Over the course of the last two weeks, conservative legal scholar Kurt Lash and libertarian legal scholar Damon Root have treated readers to a lively online debate about how best to interpret Section 1 of the 14th Amendment, which reads:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Lash started the debate last week when he posted a two-part review of Root’s book, Overruled: The Long War for Control of the U.S. Supreme Court. In his review, Lash correctly notes that:
Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.
As a self-styled "federalist," Lash emphatically disagrees. In his view The Slaughterhouse Cases and Carolene Products were correctly decided because:
The Privileges or Immunities Clause clarified that all of the constitutionally enumerated personal rights of American citizens were now enforceable against the states — from the substantive rights listed in the first eight amendments to the equal treatment rights of Article IV’s the Comity Clause. All other matters remained under the control of the people in the states, subject only to the requirements of due process and equal protection.
Lash supports his view with numerous quotations, including this statement by the author of the 14th Amendment, John Bingham:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States as contradistinguished from citizens of a State [the language of Article IV] are chiefly defined in the first eight amendments to the Constitution of the United States…. Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article….
On Monday, Root posted a response in which he provides his own set of historical quotations, including a different one from Bingham:
"The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States," Bingham explained to the House of Representatives, include the "constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."
And he also makes a case for his view based on historical context:
The 14th Amendment was drafted in 1866 and ratified in 1868. It was added to the Constitution in response to the mounting outrages then occurring throughout the former Confederacy, where state and local officials were, among other foul deeds, attempting to restore slavery in practice — though not in name — by imposing a tangled web of laws and regulations known as the "Black Codes" [which] inflicted terrible harms on the economic freedom of the freedmen. The Black Code of Opelousas, Louisiana, for example, made it illegal for blacks "to rent or keep a house within the limits of town under any circumstances." That same ordinance required would-be black merchants and entrepreneurs to get the permission of white officials before they were permitted to "sell, barter, or exchange any articles of merchandise." Needless to say, such permission was not forthcoming from those racist white officials, who were in no hurry to see black residents enjoy any degree of economic liberty.
The Republicans of the 39th Congress watched these events unfold and determined to take action to better secure the freedmen’s imperiled civil rights. That congressional action included providing explicit federal protections for the "local economic rights" of blacks suffering under the South’s incipient Jim Crow regime.
For anyone interested in legal history and political theory all of this is good fun, but from a practical point of view it’s also rather worrying. Lash characterizes the conflict between libertarianism and federalism as "a death struggle," and — borrowing a phrase from J.K. Rowling — he says, "Either must die at the hand of the other for neither can live if the other survives."
To me this attitude seems irresponsible. Economic freedom in America continues to decline, both absolutely and compared to other countries, and if that decline continues the result will be disastrous. It’s all very well to debate whether it would be better for economic rights to be defended by the federal courts or by the state courts, but the urgent problem right now is that economic rights are seldom being defended by any courts at all. If libertarians and conservatives want to revive economic freedom, they need to resolve their doctrinal differences and start working together.
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