Libertarians, Conservatives, and 'Mischaracterizing' the 14th Amendment

Does the Privileges or Immunities Clause protect unenumerated rights?

Over the past week I've been debating conservative law professor Kurt Lash over some of the historical evidence contained in my recent book Overruled: The Long War for Control of the U.S. Supreme Court. Specifically, Lash objects to my argument that the original meaning of the Privileges or Immunities Clause of the 14th Amendment includes federal protection—including protection by the federal courts—for unenumerated economic rights. According to Lash, that clause protects only enumerated rights, such as the rights spelled out in the first eight amendments.

It's been a funny sort of debate. Lash kicked things off by announcing that Overruled "is not a serious investigation of either the Constitution or contemporary legal theory." But then he proceeded to write not one but two lengthy articles attempting to disprove it. After that, he wrote two more. I can't help but notice that this tenured professor of law is awfully eager to get my attention and carry on a rather lengthy debate about my "not serious" little book.

I won't retread our entire debate now (read it for yourself here and here). But I do want to highlight one exceedingly bizarre assertion that Lash coughs up in his fourth entry.

One of our points of disagreement centers on the relevance of the Civil Rights Act of 1866 as evidence for ascertaining the original meaning of the 14th Amendment. As I have pointed out, the framers of the 14th Amendment repeatedly stated that the substantive rights listed in that 1866 law—such as the unenumerated economic right to make contracts—were subsequently enshrined in the Constitution via the Privileges or Immunities Clause and therefore stand as absolute, substantive rights secured against infringement by the states.

Lash sidesteps that evidence and accuses me of "mischaracterizing the Civil Rights Act (as other historians have noticed)." But wait, what "other historians" have noticed my debate with Lash and taken his side in it? Click on the hyperlink that Lash provides and you will find yourself at the Originalism Blog reading a post by legal historian Christopher Green of the University of Mississippi, who writes, "I am generally in agreement with Root that the Privileges or Immunities Clause extends beyond the rights enumerated in the Constitution." To be fair, Green does criticize some of what I've written in this debate; but Green also agrees with me on the fundamental point that the Civil Rights Act helps us to properly understand the original meaning of the 14th Amendment as a protector of unenumerated rights. Here is Green:

The Civil Rights Act of 1866 protected what many congressmen saw as rights of citizens of the United States. Representatives James Wilson and William Lawrence, Senator Lyman Trumbull, and Speaker of the House Schuyler Colfax on the campaign trail (see p. 14 of the Cincinnati Commercial collection), for instance, stated that rights in the Civil Rights Act of 1866, like the constitutionally-unenumerated right to contract, were paradigm cases of rights of citizens of the United States. The way such rights were discussed is powerful evidence that such rights were secured—and, importantly, secured not merely against racial discrimination—by the Privileges or Immunities Clause. The proponents of the Civil Rights Act spoke of such rights of citizens of the United States in unqualified terms, and this evidence is indeed extremely important background to the Privileges or Immunities Clause.

Needless to say, what Green writes in that passage cuts against Lash's unsound interpretation. As I said, this has been a funny sort of debate.