In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause.
One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written several articles on the Amendment that culminated in the publication of a book. On this site, Kurt has written several posts defending his interpretation of the Amendment. Kurt defends a view that I used to hold, but no longer do: that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States. Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation. (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)
Adequate theories of the original meaning of the 14th Amendment must do several things. Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional.
The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was. Partly because of this scholarly discord, the Supreme Court has resisted efforts to revive the Clause. Most notably, four years ago, in McDonald v. City of Chicago, the petitioners asked the Court to invalidate Chicago’s comprehensive ban…
Recently, I blogged about Kurt Lash’s own blogging about his new book on the 14th Amendment. I wrote:
Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory).
Kurt wrote to me to clarify that in his view:
the Privileges or Immunities Clause protects all constitutionally enumerated personal rights, such as those listed in the Bill of Rights. It includes, for example, the equal protection rights of the Comity Clause as well as the enumerated right to habeas corpus.
Kurt is, of course, correct about his position, and I am happy to clarify his position.
That said, my claim that that Kurt’s interpretation “does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory)” is true. And while the other enumerated rights under the Comity and Habeas Clauses are important, as a matter of modern controversies it is here where the disagreements principally lie.
(I should note that the “equal protection rights of the Comity Clause” – if I understand Kurt’s position – forbid discrimination against out of state citizens, but do not provide general protection against racial or other similar forms of discrimination.)
Over at the Volokh Conspiracy, Kurt Lash has been guest blogging his new book on the Privileges or Immunities Clause of the 14th Amendment. Kurt has brought forward a host of new materials and arguments that are of significant interest. Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory). While I have some questions about Kurt’s theory, it is nonetheless of significant interest. Today,…