14th Amendment

Why the 14th Amendment Protects Economic Liberty

A further reply to conservative law professor Kurt Lash


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.

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  1. Slavery is at its heart a restriction on the right to contract. There is no way to end slavery without guaranteeing the right not to just compensation for your labor but also the right to contract. Without the right to contract, slave owners could have just paid their slaves some marginal wage or called room and board a “wage” and continued slavery.

    To say that the 14th Amendment was not written to guarantee economic rights is to completely misconstrue the nature of slavery and the legal protections necessary to prohibit its existence.

    1. And also to misconstrue the free labor ideology that underlay that Amendment.

    2. Not to mention that Jim Crow laws were as much about restricting blacks’ economic freedom as their political freedom.

      1. The driving force behind Jim Crow laws was to prevent skilled black workers from competing with whites for jobs. People have this idiotic idea that all slaves were unskilled labor picking cotton ever day. That is totally false. Plantations were largely self sufficient and slaves were trained in every kind of skilled labor from black smiths to carpenters and every other form of labor needed to run a successful plantation. Once freed, those blacks were real competition to whites and Jim Crow was enacted to prevent that.

  2. Why does Prof. Lash cling to this argument in light of the legislative intent? Is there some goal of his that is thwarted if he concedes that the 14th amendment protects unemumerated property rights from local/state legislation? I don’t get it.

    1. Yes. That would restrict the power of the states and localities from doing things that he believes are reserved to them by the 10th amendment. The states and localities are how “the people” can do things the federal government cannot.

      1. Ok. But what agenda is important enough to argue, in the face of evidence, that the right to contract or own property isn’t protected by the 14th amendment?

        1. I don’t really have any idea. In his original review of Root’s book, he said something like, “Libertarians wish this were the case so it would be easy for them to say rights are being violated, but the fact is they can be and you have to deal with working within federalism.”

        2. But what agenda is important enough to argue, in the face of evidence, that the right to contract or own property isn’t protected by the 14th amendment?

          Gheypizzacake, I presume.

          1. Gheypizzacake, I presume.

            Conservative constitutional originalists are really into that.

        3. The amendment doesn’t protect your right to property. It restricts the states from taking your property without due process of law or taking it from you for a reason not equally applied to everyone else.

      2. And that of course is correct. The problem is that the 14th Amendment came after the 10th. So it trumps the 10th. After the 14th Amendment, the states could no longer do certain things, namely deprive people of equal protection and due process. Since they wrote the Amendment primarily to end slavery, that restricted the states’ ability to deprive people of economic rights.

    2. He’s a small-L federalist, and he seems to elevate federalism above individual liberty.

      Nevermind the P&I Clause: the original Constitution contains the Contracts Clause and the Ninth Amendment, written in the disjunctive (“rights retained by the States or the People – I think that clearly shows that the Founders didn’t simply view the Constitution as dividing powers among the States and Fed. Gov., but also viewed the Constitution as protecting individual rights, including all the ones that couldn’t be put into such a short document).

      1. Whoops, I meant the Tenth Amendment.

      2. I don’t see that at all. Just because the recognized rights of the states and the people being different, doesn’t mean they intended the document to protect the rights of the people from the states. If they had, there would have been no reason to pass the 14th Amendment and even if it was passed, no reason to use it to apply the BOR to the states. And clearly the founders did not intend the BOR to apply to the states.

        1. You really can’t see that at all? I’ll admit it isn’t entirely plain, but I still think it is a good argument. If the people have rights that the States don’t, how could the States infringe on them?

          I think the Fourteenth clarified this instead of instituting it wholly new.

          1. It is just not consistent with the system they set up. The wrote the document to create a central government and to restrict its powers. Before the passage of the 14th Amendment, the Constitution didn’t concern the general powers of the states.

            1. Yet it did limit at least some powers of the States, such as the Contracts Clause:

              “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

              The first few items on the list relate to State powers vis-?-vis federal powers. However, the last four items seem to deal with limiting State powers vis-?-vis individual citizens.

              Preventing States from issuing bills of attainder protects individuals and their families from having to forfeit their property at the arbitrary whims of the States; prohibiting ex post facto laws stops States from retroactively applying a law to individual acts; and as to stopping States from impairing contracts, it is uncertain if that means any contract and what constitutes “impairment,” but given the prior two limitations on State power as applies to individuals, I think it is reasonable to assume this limitation applies to private contracts.

              1. The Contracts clause is mostly just telling the states to stay out of things reserved to the Feds. As far as the rest, that makes my point. The restrictions on the state exist there not in the rest of the document.

                1. No, the bit about contracts was meant independently or anything Congress might do. It was meant to forbid states from altering terms of contracts in force between private parties. There had been agitation for debt forgiveness in many states, It was not contemplated that Congress would engage in similar interference.

      3. The real weirdness comes in when he sort of interprets the 9th via the 10th, and says (something like) that all rights retained by the people are really exercised by the people via the state (or locality).

        1. Yes, and I think there is a clear distinction in the text of the Tenth between the States and the people.

          I guess that begs the question of what “the people” means. That seemed to be a sticking point in interpreting the Second, the right of the “people” to keep and bear arms shall not be infringed. It doesn’t say the right of the “States.” Does “people” mean “individuals”? Does it mean some collective body of individuals represented by cities, towns, or other localities? Or is it simply synonymous with “States”?

          Obviously, as a libertarian I favor the first interpretation. But I don’t think that’s inaccurate, notwithstanding the need for the clearer language of the Fourteenth.

          1. Right. This is the one Lash would pick: Does it mean some collective body of individuals represented by cities, towns, or other localities?

  3. “This is what federalists really believe.”

    1. I’m a federalist and that’s not what I believe. The 14th was ratified specifically to recognise freedom of contract and equal protection under the law. For the reasons that John mentions above. That does not make the Nazgul the sole arbiter of our rights or demand that every state government recognize the same sets of rights.

    2. It’s astounding how people can be full-throated champions of liberty from a tyrannical federal gov’t, and turn right around and shrug their shoulders and pull a Bork-ian “majorities have the absolute right to do whatever they want” about-face at the local level.

      1. Not necessarily. The Constitution clearly was written to allow that until the passage of the 14th Amendment. And even the 14th wasn’t intended to subject the states to the same restrictions the federal government was subjected to.

        It is not as clear cut as you think. The states do have powers the Feds don’t have and shouldn’t have.

        1. I think I was speaking more from a philosophical standpoint. You’re right about the legal aspect.

          I don’t understand a mindset that values liberty, but only liberty from one specific level of government, but is just fine with abuses at other levels.

          1. It’s not a question of what states have the right to do, it’s a question of who has the jurisdiction to make the choice. There are countries all over the world who violate their citizens rights even worse than ours. That does not justify having a one world government to try to force them all to behave. On a somewhat smaller scale, why should I care what the law is in California? I don’t live there, and if I find the law distasteful, I can choose not to visit.

            Then there’s the inherent danger of making 9 people who live in one city the only arbiter of freedom and government power. That doesn’t get you liberty. That gets you and everyone else the liberty to do as the Nazgul think you should.

      2. Yes it is, JJ. I don’t know Lash very well, but he has had a bit of a tinge of Bork for me for sure.

  4. The logic! It burns!!!

  5. With out property rights,and that covers a wide range of economic rights,there is no freedom. Name any abuse of government and property right abuse will be in there some where.I would think a ‘conservitive’ would know this.

  6. One big step in my transition from just being disgusted by government to thinking it an active evil was how quickly the politicians let the Supreme Court gut the 14th amendment in Slaughterhouse. The decision (IIRC) claimed the only rights protected by the 14th amendment were the very few listed in the Constitution as being national rights, like right to navigable waters. This happened only 5 years after the 14th amendment was ratified, and yet those politicians just ignored it and let it go.

    What a bunch of spineless cowards.

  7. I figure it this way:

    -The Fourteenth Amendment is more vague than I would like on the subject of civil liberties BUT

    -There is a plausible interpretation which maximizes liberty

    -So why not just say, “if a pro-liberty interpretation is permissible, let’s adopt it because of a frank and avowed preference for liberty. With all due respect to alternate interpretations, they’re not the *only* interpretations, and why should we ditch a plausible pro-liberty interpretation, even in the face of a plausible anti-liberty interpretation?”

    1. That’s how I look at it. I don’t really know what the politicians meant by their words in that amendment or the prior bill; usu. they just want to use words that sound good to the greatest number of their bosses (the people they represent) while avoiding being pinned down to anything that might offend a large # of them. Both the politicians & their constituents weren’t likely to have been thinking at the time about anything other than former slaves, but they like to use broad language to sound inclusive & hence somewhat flattering.

      In the 1930s Congress & state legislatures sought to add coverage to diet pills to their regulatory authority on drugs, which previously covered only disease-treating products. But when it finally came time that they passed a bill (1938), instead of the narrow language that’d been discussed having to do w loss or gain of weight, with little debate (& of that more in the senate than H.R.), they put in broad wording, “affect the structure or any function of the body”, which has been a point of contention ever since. Similarly they struck proposed cosmetic-regulating language that’d clarified slightly what they meant by the exemption for “soap”, & decided to leave it as just that word. States just went along & boiler-plated the new statutory wording.

      1. In addition to Bingham’s speeches, there’s the amendment text, much of which is copied from elsewhere.

        “Privileges and Immunities” is copied off an earlier constitutional provision generally interpreted as protecting people from one state visiting another. But Corfield v. Coryell (sp?) listed several rights like access to courts, property rights, etc., etc., and there’s evidence that Bingham and his crew wanted to protect these rights against *any* infringement, not just against out-of-state visitors.

        The due process clause is copies out of the Fifth Amendment – that’s a fair procedure according to law.

        And “equal protection” is more or less copied out of the “equal benefit and protection of all laws for the protection of person and property” clause in the Civil Rights Act of 1866, so at minimum that would mean that it’s not enough to have laws protecting, say, your business, but that the govt can’t discriminate against you vis-a-vis other similar businesses.

  8. The heart of the problem is that the courts read the equal protection clause too broadly via substantive due process and used it to read take the place of the P&I clause and essentially read it out of the amendment.

    The text of the amendment is 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.

    There is nothing in that language that gives you any substantive rights. It only says the states cannot deprive you of your property or liberty without giving you due process and applying the laws equally. It doesn’t restrict the reasons a state can use to do that. It only says they have to apply any rule equally and give you due process before doing it.

    The substantive restriction is in the P&I clause. It says, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States There is the substantive restriction on the states. What is a privilege and immunity of a citizen of the US? It is the rights protected in the BOR. This is the clause that applied the BOR to the states not the equal protection clause. And it applied the entire thing, not just whatever the courts decided counted as “due process”.

    This idea is of course totally counter to 150+ years of court interpretation. But the courts were wrong and fundamentally wrong from the very beginning.

    1. That’s long bothered me too. For instance, there’s no sensible way of “incorporating” against states the prohibition on laws respecting an establishment of religion as a liberty, privilege, or immunity. The incorporation doctrine seems a total cop-out. Legislators know how to incorporate by reference; to maintain that the specifics in a BOR (& its associated litigation record) are the full & final, minimum & maximum, extent of liberties is a laugh.

      And if you think that’s funny, research the lynchpin current of federal & state administrative regul’n of narcotics, etc.: the word “abuse”.

      1. I think it was a case of a good number of judges being Southern sympathizers who didn’t want the Amendment applied as it was written. After that, the mistake was compounded out of inertia and because the doctrine of incorporation gave judges the power to decide which rights were important and which were not. And few judges ever turn down power.

        Here is the other thing, conrast the language of the P&I clause in Article IV with the language in the 14th Amendment.

        The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

        That is clearly saying New York can’t treat visitors from Pennsylvania differently that natives. But it doesn’t use the term “citizens of the United States”. What does the 14th Amendment’s use of the language mean if not “the states can’t deprive people of their federal rights”?

  9. ‘Government,like fire,is a dangerous servant and a fearfull master’ George Washington

    1. ‘Democracy is two wolves and a lamb voting on what to have for lunch.’ Ben Franklin

      1. “Democracy sucks, but, oy, you should see the *other* systems!” – Winston Churchill (slight paraphrase)

        1. “How’s it hanging, royal ugly dudes?” – Bill and Ted commenting on monarchy

          1. ‘Gentalmen ,We could lose our phony balony jobs’,Gov. Petimaine

        2. A representive republic with limits on the government,written in law is the best form.. On a aside,’Sir your drunk,yes madame I am,the difference being I’ll be sober in the morning’.W.C

          1. “From now on, I want you to call me Winifred.” – Winston Churchill, before passing out drunk.

  10. “…the Civil Rights Act of 1866 … says that all persons born on American soil are citizens of the United States…”

    Not exactly. It grants birthright citizenship as long as the person was “not subject to any foreign power, excluding Indians not taxed.” By longstanding convention (since at least 1866, and probably long before), children born to foreign nationals were naturally assumed to be citizens of their parents’ nations; like their parents, they were “subject” to the corresponding “foreign power.” The 14th Amendment substitutes the positively framed “and subject to the jurisdiction thereof” (i.e., of the U.S.) for the negatively framed but semantically equivalent “not subject to any foreign power.” I have never found an explanation for why the same phrasing wasn’t used in both places; I like to suppose that “not subject to any foreign power” might be used to challenge the citizenship claims of Catholics, who were viewed as being “subject” to that great “foreign power,” the Pope of Rome. Using the phrasing of the 14th Amendment, such people could at least claim to have been “subject to US jurisdiction” at birth, if they or their parents never owed allegiance to the head of any other NATION.

    Unlike the wise Damon Root, the US Supreme court ignored the illumination provided by the Civil Rights Act of 1866, when it declared that the 14th Amendment authorized blanket birthright citizenship, creating a big problem that would bedevil future generations. How nice of them!

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