At the Library of Law & Liberty, conservative law professor Kurt Lash of the University of Illinois has published a lengthy, two–part negative review of my recent book Overruled: The Long War for Control of the U.S. Supreme Court. According to Lash, Overruled "is not a serious investigation of either the Constitution or contemporary legal theory."
I must say I was sorry to hear he didn't like it. But at least I can take comfort in the knowledge that a tenured professor of law felt compelled to use so many pixels trying to disprove my unserious little book.
Lash's complaint boils down to this: "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." According to Lash, the 14th Amendment offers no such protection. State and local officials, in his view, should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.
The problem with Lash's view is that he's wrong on the history and wrong on the law. Lash's slipshod take on the 14th Amendment falls apart under scrutiny.
Let's start with Lash's claim that "the views and political make-up of the Congress that produced the Fourteenth Amendment made it extremely unlikely that they would produce a clause nationalizing the general subject of unenumerated civil rights in the states." According to Lash, the Republicans of the 39th Congress, who passed the legislation that became the 14th Amendment, went to great efforts "to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights."
But that's absurd. None other than Republican Congressman John Bingham of Ohio, the author of the 14th Amendment's Privileges or Immunities Clause, openly stated that the 14th Amendment protects unenumerated economic rights against infringement by the states. "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 your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."
To fully appreciate why protecting economic liberty mattered to the framers and ratifiers of the 14th Amendment, it's necessary to first understand the historical context that led to the amendment's creation. Here's the story in brief.
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." In Overruled I examine this historical period in some detail; for our purposes here, it's sufficient to say that, among other things, the Black Codes 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.
The Republicans of the 39th Congress first took action in the form of the Civil Rights Act of 1866. In the words of Illinois Senator Lyman Trumbull, the moderate Republican leader who managed the act in the Senate, this legislation "declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness." Notice Trumbull's emphasis on federal protection for unenumerated economic rights, such as the unenumerated right to make contracts and the unenumerated right to enjoy the fruits of your labor (the very same unenumerated right mentioned by Rep. Bingham).
But don't just take Sen. Trumbull's word for it—read the actual text of the Civil Rights Act. It held that all persons born on U.S. soil were citizens of the United States and that all U.S. citizens "of every race and color…shall have the same right, in every state and territory…to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property." Notice, once again, the emphasis on federal protection for unenumerated economic rights, such as the unenumerated right to make contracts.
Now recall Lash's claim that the Republicans of the 39th Congress sought "to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights." As the evidence repeatedly shows, Lash's position is nonsense.
Similarly, Lash fails to grasp the crucial relationship between the Civil Rights Act and the 14th Amendment. This relationship stemmed from the fact that certain leading Republicans in 1866 feared that Congress lacked the legitimate constitutional authority to pass a federal civil rights law in the first place. Their solution was to enact the 14th Amendment, which constitutionalized the Civil Rights Act and provided a solid constitutional footing for future civil rights legislation. In the words of Republican Congressman M. Russell Thayer of Pennsylvania, the 14th Amendment "incorporat[ed] in the Constitution of the United States the principle of the civil rights bill which has lately become law." The principle of that civil rights bill, as its text makes clear, included federal protection for unenumerated economic rights, such as the right to make contracts.
Republican Senator Jacob Howard of Michigan, who introduced the 14th Amendment in the Senate and then successfully managed its passage, made a closely related point. The 14th Amendment was needed, Howard explained in a widely reprinted 1866 speech, because the "mass of privileges, immunities, and rights" secured by the Constitution "do not operate in the slightest degree as a restraint or prohibition upon State legislation." According to Howard, "the great object of the first section of this [14th] amendment is, therefore, to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."
What are the "great fundamental guarantees" and the "mass of privileges, immunities, and rights" which Howard said that the 14th Amendment was designed to protect from state abuse? For starters, Howard explained, they include the individual rights that were both mentioned and acknowledged in Justice Bushrod Washington's influential 1823 Circuit Court opinion in Corfield v. Coryell, in which Washington remarked that "it would be perhaps more tedious than difficult to enumerate" the full extent of the privileges and immunities of Americans. Despite the risk of tedium, however, Washington did specify a few, including, "Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety." In short, things that "are, in their nature, fundamental; which belong, of right, to the citizens of all free governments." Notice that Justice Washington included economic rights in his partial list.
But that was not the end of it. In addition "to these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their extent and precise nature," Howard said, after quoting extensively from Corfield, "to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution."
Which brings us back to Lash. In the professor's view, the 14th Amendment cannot be read to protect unenumerated rights. Yet Senator Jacob Howard, a leading Republican who played a crucial role in the amendment's passage, plainly discredits this view. According to Howard, the 14th Amendment compels the states to respect both "the first eight amendments" (enumerated rights) and other fundamental rights that "are not and cannot be fully defined" (unenumerated rights).
In short, the evidence all points in the same direction: The 14th Amendment was designed to protect a broad range of fundamental rights from state abuse, including the very sort of unenumerated economic rights that Professor Lash tries—and fails—to disparage.
Update: Read round two of my exchange with Professor Lash here.