For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.
Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.
At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.
In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty. The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.
For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers. They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery. As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.
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.