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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