14th Amendment

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.

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  1. The more I read your critics, Damon, the more convinced I am that you’re wrong. Thanks for the links! They’re very helpful!

    1. Says the author of Sherlock Holmes and the Giant Rat of Sumatra.

      So, this is either a guy who writes fanfiction for a living, or would like us to think so.

      1. The funny thing about VANNNNEEEMANNNNNNNNNN is that he’s never, ever, ever, ever, ever the slightest bit clever. Ever.

        1. Would you say he’s rather elementary?


    3. Thanks for sharing, Anal.

    4. The more I read your critics, Damon, the more convinced I am that you’re wrong.

      That’s because you’re an idiot. I guess that’s why you keep misspelling your name.

  2. The idea that the 14th would apply to 1-8 but not 9 or 10 is insane. For that matter, should apply to 11-13, where applicable.

    1. The idea that the 14th would apply to 1-8 but not 9 or 10 is insane.

      But, practically, the 14th obliterates the 9 and 10th repeatedly.

      1. 10th sure, but not the 9th.

        1. Nope, both. Brochettaward states it more precisely below. The 14th is specifically intended to violate unenumerated individual (economic) rights enacted at the state level by proxy. They just happen to be rights that aren’t necessarily liked or are liked unequally.

          There is an unequal application of the law with regard to fireworks across the IN/IL State line. You *cannot* create equality with or based on a federal amendment without violating *both* the 9th *and* 10th. My unenumerated right to buy fireworks has already been infringed, as I must exercise my right to drive to IN where they are legal. Saying you’ve only violated the 10th just indicates where, or at what level, you compromize principles your principles of liberty on the/any issue.

        2. Ah, read your reply to Notorious below.

          OK, between recognized, enumerated, 9th, 10th, and 14th we agree that there is a fundamental conflict; practical and likely ideological as well.

    2. Hell, it took SCOTUS practically ever to grudgingly agree that it applied to the BOR. Don’t forget, the 2A was only “incorporated” a few years ago.

  3. OK, the way I see it, the 14th Amendment is open to different interpretations. But of the various plausible interpretations, then I say adopt the pro-liberty interpretation.

    So to my mind, since the broad “libertarian” interpretation is perfectly plausible, it should be adopted.

    But let us look at the other side of the debate.

    It isn’t as if the advocates of a restrictive reading of the 14th Amendment see themselves as anti-liberty crusaders. In fact, they see themselves as defending federalism, which is in turn a key element of liberty. To them, awarding broad powers to the federal government, even in the name of liberty, opens the door to tyranny from the center. And haven’t we seen the effects of an open-ended view of the 14th Amendment as a Horn of Plenty filled up with whatever “rights” the judges feel free to invent?

    Now, to me, “privileges and immunities” refers to recognized rights as of the time the Constitution and its 14th Amendment were ratified, giving the concept at least some limiting principles.

    But the power-boners some people are getting out of the broad interpretation of the 14th Amendment should be enough to give one pause.

    1. Recognized vs enumerated. All 9th amendment rights were recognized, even if they werent enumerasted.

      1. enumerasted

        The Accidental Neologism of the Day for 7/22/15 is a good one.

        1. Damn, Warty, I am going to give you another atta-boy for coining “The Accidental Neologism”.

          Last week, you will recall, I gave you some props for your brilliant phrase, “I hope you are smart enough to realize (or was it recognize?) how stupid you are.” John agreed and had wished he had coined the phrase.

          I have already used your line – on WEEI 850 AM, Boston-in reference to a long time, well known, pain in the ass caller.

          1. Well, I’m glad some good comes of this den of iniquity.

          2. I think it was “I hope you’re smart enough to be embarrassed by how stupid you are”, now that I think about it.

            1. Yep, that’s it.

              Instant Classic.

              Although the WEEI hosts did laugh at my (your) line, I bet it would have been better if I had been faithful to the original and had used embarrassed instead of realized.

        2. Benefit/disbenefit of posting via phone

  4. Of the key clauses in the first section of Amendment 14, we see that each clause adopts language either from the original Constitution, or from the Civil Rights Act of 1866.

    “Privileges and immunities” comes from Article IV. In that article, the term was applied to make sure that out-of-state visitors would enjoy the same basic rights as a state’s citizens.

    But to Bingham and his colleagues, this was inadequate. They wanted a constitutional provision guaranteeing privileges and immunities of all citizens, not just visitors from one state to another. So privileges and immunities not only secures an Iowan’s right to do business in California, but secures a Californian’s right to do business in his own state.

    Due process is copied off the Fifth Amendment, and makes clear that states as well as the feds have to give people a fair trial according to law if they want to take that person’s stuff, restrict his liberty, or kill him.

    The Equal Protection Clause borrows language from the Civil Rights Act of 1866, which guaranteed “equal benefit and protection of all laws for the security of person and property” to all persons to the same extent as enjoyed by white people. This was intended as the anti-discrimination part of the 14th amendment. So if the government prosecutes and punishes the lynching of white people, it must to the same extent, and with the same zeal, prosecute and punish the lynching of black people (not that states always obeyed this).

  5. Well, we all know that the amendments aren’t about what’s written, but what’s intended… right? Except the 18th. that one is in unchangeable stone…

  6. and cary on a rather lengthy debate


  7. Manslaughter Trial Begins for North Carolina Cop in 2013 Shooting of Unarmed Black Man

    So he’s being charged with Manslaughter of a Black Man?

    1. wrong thread. tabs. derp.

  8. The 14th amendment was passed to prevent states from basically reintroducing slavery piecemeal through legislation. Slavery itself is an economic institution and not based on beliefs over racial inferiority. The infringements of rights begin with those related to things such as the right to contract, and the right to property, and the right to keep the fruits of your labor. The efforts made to control slave behavior such as speech or to dehumanize them are done to keep them in bondage for economic gain. To argue that the 14th amendment has nothing to do with economic rights and only the magical class of ‘civil rights’ is beyond fucking retarded. Tony level retarded.

    1. Tony level retarded is an occupational pre-requisite for the boys and girls in black.

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