Image: Charles Brutlag / Shutterstock.comThe Privileges or Immunities Clause and Unenumerated Rights
Shutterstock.com
Was It a Refounding?
Equality and the Civil Rights Act of 1866: A Final Response to Damon Root
Overhead view of massive protests against the Chinese mainland extradition policy in Hong Kong, June 16, 2019 (Lewis Tse Pui Lung / Shutterstock.com)
Sensing that the constitutional foundation for his book is crumbling beneath him, Damon Root takes to his blog a second time and tries once more to rehabilitate his arguments about the Fourteenth Amendment by . . . not talking about the Fourteenth Amendment.
The Reconstruction Statesmen
In his last public address, April 11, 1865, President Abraham Lincoln defined the problem of Reconstruction as how to end the war, re-inaugurate the national authority, and get the seceded states back into “their proper practical relation with the Union.” No provision in the Constitution explained how this should be done. There was no government to make a treaty with as in a war between independent nations. Lincoln observed: “No one man can give up the rebellion for any other man. We must simply begin with, and mould from, disorganized and discordant elements.” In Statesmanship and Reconstruction: Moderate Versus Radical Republicans…
A Tale of Two Clauses: Damon Root’s Overruled (Part Two)
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.
The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham
Overhead view of massive protests against the Chinese mainland extradition policy in Hong Kong, June 16, 2019 (Lewis Tse Pui Lung / Shutterstock.com)
My thanks to the Library of Law and Liberty for inviting me to respond to David Upham’s review of my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge U. Press 2014). Thanks also to Prof. Upham for taking the time to review the book and his gracious acknowledgement that it constitutes a step forward in our understanding of the Privileges or Immunities Clause. Unfortunately, in some of his more critical comments, it appears that Upham has misunderstood the theory of the book and (worse) missed much of the evidence presented in the book.
Getting Right with the Fourteenth Amendment: A Conversation with Kurt Lash
Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment's Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress. Rather than emerging from the Comity…
A New Birth of the Old Freedom
The seven articles and twenty-seven amendments to our national Constitution contain roughly 8,000 words. Of those, perhaps none have generated so much intense controversy as the fifty-two words placed inconspicuously in the second sentence of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.” In this sentence’s three prohibitions—the Privileges or Immunities, Due Process, and…
Friday Roundup, September 20th
Overhead view of massive protests against the Chinese mainland extradition policy in Hong Kong, June 16, 2019 (Lewis Tse Pui Lung / Shutterstock.com)
Our review essay this week is Ted McAllister's "The Tyrannical Declaration of Independence" on Alexander Tsesis' book For Liberty and Equality: The Life and Times of the Declaration of Independence: The intellectual rise of Neo-Progressivism over the past three decades depended heavily on historians who helped craft a compelling story of America. This story had to expose and chronicle the dark history of exploitation of the privileged and powerful against a litany of victimized “others” while simultaneously laying claim to a worthy past that is unfolding toward a noble future. The psychological benefits of this story are many and powerful, though…
