Part One of my review of Overruled: The Long War for Control of the Supreme Court summarized Damon Root’s presentation of libertarian constitutionalism as an alternative to liberal Progressivism, and to what Root sees as excessively conservative federalism. Overruled takes particular aim at constitutional federalists as unjustifiably impeding the proper reading of the Constitution and the protection of unenumerated rights against state abridgment.
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. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.
As we saw in Part One, 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. After all, this was the same Congress that removed the term “civil rights” from the Civil Rights Act of 1866 in order to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights.
I now want to focus on constitutional text, in particular on the Fourteenth Amendment’s Privileges or Immunities Clause. This single clause supports the entire theory of contemporary libertarian constitutionalism. If Root is wrong here, he is wrong everywhere else. The analysis that follows takes the reader on a tour of the so-called “Comity Clause” of the U.S. Constitution’s Article IV, the drafting and early reception of the Fourteenth Amendment’s Privileges or Immunities Clause, and the jurisprudence of the New Deal Court.
As explained in Part One, Root argues that the Privileges or Immunities Clause both echoes and transforms the “privileges and immunities” originally granted equal protection under the Comity Clause, which declares that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Antebellum decisions like Corfield v. Coryell (1823) interpreted this clause as requiring states to grant sojourning citizens from other states equal access to a limited set of “fundamental” state-secured rights. Thus, if State One allowed its citizens to sell shoes, then a visitor from State Two must also be allowed to sell shoes. If State One does not allow its citizens to sell shoes, neither may a visitor from State Two. What is mandated is equal treatment, not an absolute right to pursue a trade regardless of state law.
The Privileges or Immunities Clause is worded differently from the Comity Clause. Where the Comity Clause refers to the rights “of citizens in the several states,” the Fourteenth Amendment refers to the rights “of citizens of the United States.” Root and other libertarian constitutionalists insist that these are two different ways of referring to the exact same set of rights. Only now, with the adoption of the Fourteenth Amendment, rights once afforded no more than equal protection under the Comity Clause are now transformed into absolute national rights protected against state abridgment. If correct, this would mean that citizens have the right to sell shoes whether or not a state permits its own citizens to sell shoes.
To begin with, this is a rather counterintuitive reading of the Privileges or Immunities Clause. If its framer, Representative John Bingham (R-Ohio), wished to refer to the Comity Clause, why didn’t he use the language of the Comity Clause? In fact, an early draft of the Fourteenth Amendment did use the language of the Comity Clause: it was rejected. The draft that Congress ultimately accepted used language associated with antebellum treaties—language long described as referring to enumerated federal constitutional rights such as those listed in the Bill of Rights. Placing this language in the federal Constitution accomplished the expressly stated goal of its author, Bingham, who said over and over again that his central purpose was to make the Bill of Rights applicable to the states.
The last thing Bingham desired was to “nationalize” the substance of unenumerated state-secured civil rights. This is why, as I pointed out in Part One, Bingham insisted that the term “civil rights” be removed from the Civil Rights Act of 1866.
Root and other libertarians nevertheless insist that John Bingham based his Privileges or Immunities Clause on Corfield v. Coryell and the Comity Clause. Here is Root:
What then are the rights and liberties (privileges and immunities) of a U.S. citizen? As a guidepost, Bingham and other framers of the Fourteenth Amendment pointed to Supreme Court Justice Bushrod Washington’s influential 1823 Circuit Court opinion in Corfield v. Coryell, in which he remarked that “it would perhaps be more tedious than difficult to enumerate” the full extent of the privileges and immunities secured by Article IV.”
This is simply false. There was only one framer of the Privileges or Immunities Clause, John Bingham, and he never once described his proposal as having anything to do with Corfield v. Coryell. Instead, Bingham expressly denied that the Privileges or Immunities Clause was based on the Comity Clause of Article IV. As Bingham later explained from the floor of the House of Representatives:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States as contradistinguished from citizens of a State [the language of Article IV] are chiefly defined in the first eight amendments to the Constitution of the United States. . . . Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article . . .
According to Bingham, the substantive privileges or immunities “of citizens of the United States” as listed in the federal Bill of Rights must be “contradistinguished from” the privileges and immunities of the Constitution’s Article IV. Bingham’s goal was to force the states to protect those rights that the people themselves had declared to be the rights of American citizenship, especially those listed in the first eight amendments to the Constitution (but also others, such as the enumerated rights of habeas corpus). As Bingham put it, “the enforcement of the Bill of Rights in the Constitution is the want of the Republic.” From his earliest efforts in the 39th Congress, Bingham explained that his efforts were directed at enforcing textually enumerated rights—“this, and nothing more.” It’s a good thing, too, because anything more would have been defeated by the then-governing coalition of conservatives and moderates in Congress.
The equal-access protections of Article IV’s Comity Clause, of course, also count as Privileges or Immunities of citizens of the United States. But the state-secured rights covered by the Comity Clause continue to receive nothing more than equal protection. No transformation has taken place beyond (finally) giving Congress power to enforce the Comity Clause (an omission repeatedly referenced during the 39th Congress).
The Privileges or Immunities Clause clarified that all of the constitutionally enumerated personal rights of American citizens were now enforceable against the states—from the substantive rights listed in the first eight amendments to the equal treatment rights of Article IV’s the Comity Clause. All other matters remained under the control of the people in the states, subject only to the requirements of due process and equal protection. As Ohio Supreme Court Judge John Day explained in one of the earliest cases interpreting the Privileges or Immunities Clause:
This [case] involves the equity as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has been as yet judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment. (Garnes v. McCann, 1871)
It appears then that, despite frequent claims to the contrary, Justice Samuel Miller got it right in The Slaughterhouse Cases when he rejected an invitation to construct an unenumerated right to run a slaughterhouse and enforce it against the preferences of the people’s state representatives. Echoing Bingham (who had given a speech about his constitutional handiwork only months before), Justice Miller distinguished the equal-access rights of Article IV from the substantive national rights of the Fourteenth Amendment. The latter, Miller explained, included all manner of textually secured rights, including the enumerated First Amendment rights of petition and assembly and all of the rights enumerated in the Reconstruction Amendments. It did not, however, include the unenumerated absolute right to pursue a trade regardless of Louisiana law.
Justice Miller’s reading did not, contra Justice Field, reduce the Privileges or Immunities Clause to a “vain and idle enactment.” Prior to its adoption, states were not bound by (nor could Congress enforce) the Bill of Rights. Changing this by adopting the Privileges or Immunities Clause was an enormous achievement in American constitutional liberty. And yet it was not enough for Justice Field, who criticized the Court for refusing to go beyond the protections of the Bill of Rights. As Field put it:
Grants of exclusive privileges, such as is made by the act in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void.
Get it? Justice Field understood that Miller and the majority had limited the Privileges or Immunities of citizens of the United States to enumerated constitutional rights, thus excluding non-textual economic liberties. Miller’s limitation is exactly what Bingham hoped the clause would accomplish—and nothing more.
As Justice Miller realized, not only did Field’s Corfieldian Comity Clause reading of the Privileges or Immunities Clause ignore the different language of the two clauses, adopting it would erase the federalist boundary between state and federal power. Congress, after all, would have full power under Section 5 of the Fourteenth Amendment to establish the national substance of everything from local contract law to marital law to public education—even to matters involving “the pursuit of happiness” (also listed in Corfield v. Coryell). As Miller dryly noted, nothing in the text of the Fourteenth Amendment justified such a radical result.
Miller’s refusal to follow Field for reasons of federalism makes Slaughterhouse and federalism equal targets for libertarians like Root. The same is true of prominent New Deal-era decisions like United States v. Carolene Products (1938). In Carolene Products, the Supreme Court officially abandoned the prior Lochner Court’s practice of enforcing the unenumerated right to contract. Henceforth, the Supreme Court would generally defer to both federal and state economic legislation (thus the “judicial deference” doctrine so strongly opposed by libertarians).
Although the Supreme Court in Carolene Products deferred to democratic control of contract rights, Justice Harlan Stone added a footnote suggesting that there might be rights that would continue to receive active judicial protection. What were these? Those involving a “specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” (Carolene Products, Footnote Four)
Root wrongly characterizes Carolene Products as announcing a doctrine of judicial deference. Instead, this New Deal-era decision announced a doctrine of limited judicial authority. The Court’s authority to second-guess the democratic process must be limited to those claims involving rights that the people themselves placed beyond mere majoritarian control by adding them to the text of the federal Constitution. By limiting the scope of the Fourteenth Amendment to enumerated rights, Footnote Four of Carolene Products also furthers a principle of federalism whereby the people in the states retain the right to regulate all matters not given up to the control of the federal government.
This, of course, is Slaughterhouse all over again, and Root levels the same criticism against the New Deal Court as he did against Justice Miller. What the author fails to recognize, however, is that Footnote Four represented an effort to maintain a degree of judicial engagement in the face of political winds that, at the time, were blowing quite strongly against the Court. In 1938, President Roosevelt had only recently proposed his infamous court-packing plan, and Congress was considering amending the Constitution to allow congressional override of judicial opinions.
A majority of the Supreme Court ultimately decided to back away from striking down New Deal legislation—but how far should the Court take this newfound doctrine of judicial deference? In the face of widespread political pressure, the New Deal Court could have decided to exit the scene altogether and leave both enumerated and unenumerated rights to the tender mercies of the political process.
But just as Justice Miller in Slaughterhouse refused to over-read the consequences of the Civil War, Justice Stone in Carolene Products refused to over-read the consequences of the New Deal. The former preserved federalism while allowing for the protection of enumerated rights, and the latter preserved judicial enforcement of those same enumerated rights.
Only a few years after Justice Stone penned Footnote Four, the Supreme Court raised it to full constitutional status in West Virginia Board of Education v. Barnette (1943). There, the Court struck down a state attempt to force the children of Jehovah’s Witnesses to salute the U.S. flag. The decision, handed down on Flag Day in 1941 (no deference there!), declared that, although the Court now deferred on matters involving unenumerated rights, it remained actively engaged when it came to those rights explicitly enumerated in the Constitution.
Somewhere, John Bingham must have been smiling.
If there is a true villain in the post-Reconstruction reading of the Privileges or Immunities clause, it is the Supreme Court’s decision in Cruikshank v. United States (1875). There, the Court refused to protect even those rights expressly enumerated in the Constitution. Cruikshank stalled the general incorporation of the Bill of Rights for a quarter of a century, and its specific rejection of the incorporation of the Second Amendment right to bear arms was not overruled until McDonald v. Chicago (2010). McDonald’s overruling of Cruikshank was not so much a libertarian victory as it was a vindication of Bingham’s textualist vision of the Fourteenth Amendment and Footnote Four’s promise of judicial engagement in cases involving textually secured rights.
In fact, McDonald could fairly be described as a defeat for libertarian constitutionalism. As Root details in his book, libertarian institutions and lawyers shepherded the McDonald case to the Supreme Court not to vindicate an NRA-style right to carry guns for self-defense, but as a vehicle to open the door to judicial protection of libertarian-supported economic freedoms. Gun-rights groups, of course, recognized what was going on and pressed McDonald’s libertarian lawyer Alan Gura to stay focused on the single issue of incorporating the Second Amendment into the Fourteenth Amendment.
Root mocks these efforts, and he singles out what he calls a Right-wing amicus brief warning the Court not to embrace a libertarian reading of the Privileges or Immunities Clause on the grounds that doing so would allow the justices to “constitutionalize their personal preferences.” Root has Gura complaining about these “bible thumpers and holy rollers who are so afraid of freedom.” What the reader is not told is that the amicus brief was exactly right—as Gura himself made embarrassingly clear during oral argument.
In a portion of the oral argument not included in Root’s otherwise exhaustive account of McDonald, the justices pressed Gura to define the limits of his libertarian reading of the Privileges or Immunities Clause. Gura could have responded by focusing on his client’s need to have the Court rule only in regard to the Second Amendment, saying something like, “Your honor, whatever the scope of the clause, it certainly includes the enumerated rights of the first eight amendments, including the Second Amendment right to bear arms.” This would have furthered his client’s case while leaving the door open to future judicial expansion. Instead, Gura shot for the moon:
Justice Ginsburg: What unenumerated rights would we be declaring privileges and immunities under your conception of it?
Mr. Gura: Although it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it’s impossible to do so under the Due Process Clause.
Impossible to give a full list . . . One can almost see the members of the Court shaking their heads in wonderment. Gura had unnecessarily pressed for the broadest possible reading of the Privileges or Immunities Clause and, in doing so, actually made it harder for the Court to rule in his client’s favor. After Gura’s answer to Justice Ginsburg, it was a foregone conclusion that the Court would once again avoid the Privileges or Immunities Clause out of a (seemingly well-founded) fear that it would open the door to unjustified judicial experimentation. In the end, a majority of the Court followed the principle of Footnote Four and continued the tradition of incorporating rights under the Due Process Clause. Although they incorporated the Second Amendment, they rejected Gura’s invitation to read the Privileges or Immunities Clause as an undiscovered fountain of libertarian rights. Unfortunately, this meant avoiding the Privileges or Immunities Clause altogether.
Root spends the latter portion of his book trying to convince the reader that there is growing judicial appreciation of libertarian constitutionalism. In addition to McDonald, Root points to other recent Supreme Court decisions limiting the scope of federal power. But the actual opinions in the cases he cites ignore libertarian theories of the autonomous individual and instead regularly rely on theories of federalism. For example, United States v. Lopez (1995) (invalidating the federal Gun Free School Zones Act) and United States v. Morrison (2000) (invalidating the federal Violence Against Women Act) both invoked the principle of federalism in limiting Congress’ power to regulate matters properly left to the authority of state majorities.
Likewise, however much libertarian scholars contributed to the recent challenge to Obamacare’s insurance mandate, the principle arguments against the mandate were distinctly federalist. Opponents of Obamacare conceded, for example, the power of state governments to mandate insurance. During oral argument, Justice Kennedy voiced his particular concerns about the law using the language of federalism:
Justice Kennedy: Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way. (Emphasis added)
Finally, when the Supreme Court ultimately invalidated the Medicaid expansion provisions in the second half of NFIB v. Sebelius, it did so on expressly federalist grounds.
The one area where libertarians might claim some degree of victory involves the Supreme Court’s recent embrace of gay rights. Although Obergefell v. Hodges (2015) was not decided under the Privileges or Immunities Clause, the Obergefell majority has declared that the Fourteenth Amendment’s Due Process Clause requires states to deliver marriage licenses to same-sex couples.
Obviously, Obergefell had nothing to do with the original meaning of either of those clauses or even the Equal Protection Clause. Indeed, Justice Kennedy did not even try to base his holding on the original meaning of constitutional text. But Kennedy’s free-floating approach to defining liberty reminded the Obergefell dissenters very much of the once-abandoned libertarian approach of Lochner v. New York—a fact celebrated by a number of libertarian Court-watchers.
It is possible that Obergefell is but the first step in the direction of libertarian constitutionalism. Perhaps the next shoe to drop will be Justices Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor embracing and enforcing economic freedoms against overbearing commercial regulation.
Or not. That’s the problem. When there are no textual or historical constraints on judicial decision-making, it is difficult to say which social concerns will be constitutionalized and which will remain subject to democratic decision-making. We become subjects waiting for the Supreme Court to tell us what we may or may not do, what we may or may not discuss and decide.
Thus the irony of contemporary libertarian constitutional theory: What begins as a theory of limited government power and maximum individual autonomy ends as a theory of maximum federal power and minimum individual influence.
Federalists know this. They struggle against the lawless interpretive methodology that grounds so much of contemporary constitutional jurisprudence as much as they struggle against modern federal regulatory power, and for the same reason. The only just power of any government, or any branch of government, comes from the consent of the governed. In the United States, that consent is found in a written Constitution ratified by the People themselves, one establishing a dual, federalist system of government.
There is good reason to think that, at least at the present moment, libertarians will get closer to their goal of individual freedom by joining, not fighting, the federalist cause.
 An even more extended investigation of the same issues is in my book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press, 2014).