Sunday, July 26, 2015

Federalist and Libertarians Debate the 14th Amendment

It all started with Kurt T. Lash’s critique on a new book entitled, Overruled:  The Long War for the Control of the Supreme Court by Damon Root.  Since then think tanks and liberal blogs, such as the Huffington Post, are weighing in on the 14th Amendment, and particularly, the privileges and immunities clause.

This debate is enlightening for a layperson, such as me, wading through the morass of modern judicial activism, biased academia, journalistic utopian philosophy, and historical fiction.  The 14th Amendment encapsulates all the above and we can all thank Rep. John Bingham and his ambiguous first section for this legalistic swamp gas.

I for one agree with Mr. Lash’s constitutional federalism assessment.  Here is an excerpt from his latest review:

Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court(see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.

Root’s basic argument is that the Fourteenth Amendment’s Privileges or Immunities Clause, like the Comity Clause of Article IV, protects unenumerated economic rights. The only difference is that the Privileges or Immunities Clause transforms the equally protected state-secured rights of the Comity Clause into absolute substantive rights. Thus, the Supreme Court wrongly rejected unenumerated substantive economic rights in The Slaughterhouse Cases (1873) and in later New Deal decisions like Carolene Products (1938).

In my review, I pointed to a large body of historical evidence suggesting that Root is wrong about the original understanding of the Privileges or Immunities Clause. The Clause refers to the rights of citizens of the United States, not the rights of citizens in the several states as it says in the Comity Clause. Where the latter refers to state-secured rights, the former refers to constitutionally enumerated rights.  The man who drafted the Privileges or Immunities Clause expressly distinguished his handiwork from the Comity Clause and insisted that his efforts were aimed at requiring the states to respect the enumerated rights of the federal Constitution, especially those listed in the Bill of Rights. As a matter of original meaning, the treaty-based language Representative John Bingham (R-OH) chose had long been understood as pointing to federally enumerated rights.

To read what others are saying about this debate click the links below:


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