Earlier this week I commented on conservative law professor Kurt Lash's 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 wrong because it argues that the Privileges or Immunities Clause of the 14th Amendment was originally understood to protect unenumerated economic rights from state infringement. As Lash sees it, the Privileges or Immunities Clause should not protect unenumerated rights under any circumstances. Instead, according to Lash, the clause should only be read to protect those rights that are specifically listed elsewhere in the Constitution, such as the rights spelled out in the first eight amendments.
In response, I pointed out that Lash's view is directly contradicted by the words of Republican Congressman John Bingham, the author of the Privileges or Immunities Clause. "The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States," Bingham told 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." As you can see, Bingham had no problem including unenumerated economic liberties under the heading of constitutional rights, privileges, and immunities protected against state abuse by the 14th Amendment.
In addition, I pointed out that the Republican-controlled 39th Congress, which framed the 14th Amendment, also passed the Civil Rights Act of 1866, which specifically included federal protections for unenumerated economic rights, such as "the right to make contracts." This legislative action matters because in the eyes of those same Republicans, the 14th Amendment constitutionalized the provisions of the Civil Rights Act. 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 included federal protections for unenumerated economic rights.
At that point in the debate, we could have probably called it a day. But Professor Lash is nothing if not persistent, and he has now published a third attempt to disprove my book. "Root is right to say that unenumerated economic rights are protected by the Civil Rights Act and the Fourteenth Amendment," Lash now says. "Root is wrong, however, about how Congress chose to protect economic liberty. Neither the Act nor the Amendment requires states to protect substantive unenumerated economic rights." According to Lash, "local majorities" retain exclusive control over "the substance of local economic regulation." The Civil Rights Act and the Privileges or Immunities Clause "require nothing more than non-discriminatory local economic policy."
Is Lash right this time around? No, Lash is still wrong.
Let's return to the Civil Rights Act of 1866. It says that all persons born on American soil are 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, as is enjoyed by white citizens."
In Lash's view, this law is nothing more than an equal-protection measure. "Yes," he writes, "economic rights were protected—equally. But, no, they were not protected absolutely in the manner proposed by Root and the libertarians."
In other words, according to Lash, if a local government passed a law forbidding both blacks and whites from exercising their right to contract, such a law would be perfectly acceptable because it would not violate Lash's equality-only reading of the Civil Rights Act.
But that result would be absurd and the framers of the Civil Rights Act intended no such absurdity. The framers of the Civil Rights Act understood their legislation to serve a dual function, one that (A) protected fundamental rights from state abuse, and (B) required the states to guarantee equal treatment under the law to all citizens. In the words of Congressman James Wilson of Iowa, who sponsored and managed the Civil Rights Act in the House of Representatives, "citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law." (Emphasis added.)
So yes, the Civil Rights Act compelled the states to treat citizens equally regardless of race. But the act also compelled the states to respect "the great fundamental civil rights" mentioned or acknowledged in the act itself, such as the unenumerated economic right to make contracts.
Furthermore, as the historical record shows, the framers of the Civil Rights Act repeatedly described the act as a broad charter of substantive rights, not merely as an anti-discrimination measure. For example, according to Illinois Senator Lyman Trumbull, the Republican leader who managed the bill in the Senate, the Civil Rights Act protects "those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights enumerated in this bill, and they belong to them in all the states of the union." Among the "inherent, fundamental rights…enumerated in this bill," of course, was the economic right to make contracts, a fundamental right that is enumerated nowhere in the U.S. Constitution.
Republican Congressman William Lawrence of Ohio made the same point when he told the House of Representatives that the Civil Rights Act stood for the proposition that, "There are certain absolute rights which pertain to every citizen, which are inherent, and of which a state cannot constitutionally deprive him." What are these absolute rights protected from state abuse by the Civil Rights Act? Lawrence gave the following explanation:
Every citizen, therefore, has the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property. These are rights of citizenship. As necessary incidents of these absolute rights, there are others, as the right to make and enforce contracts, to purchase, hold, enjoy property, and to share the benefit of all laws for the security of person and property.
The Republican framers of the Civil Rights Act did not speak in the narrow language of non-discrimination. They spoke in the broad language of absolute, fundamental, substantive rights.
Now recall Professor Lash's claim that economic rights "were not protected absolutely in the manner proposed by Root and the libertarians." As the historical record shows, Lash is wrong.
I've focused here on the meaning of the Civil Rights Act of 1866 because it is impossible to properly understand the 14th Amendment without first understanding that law. That is because the 14th Amendment absorbed and constitutionalized the provisions of the Civil Rights Act (no serious scholar disputes this). What that means is that if the Civil Rights Act protected a fundamental right to economic liberty (which it did) then that fundamental right to economic liberty was enshrined in the Constitution and placed beyond the grasp of local majorities via the 14th Amendment (which it was). No amount of tendentious pleading by Professor Lash can change these facts.