Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.
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.)
In my earlier post, I had also noted that the Republicans might have been on stronger grounds if they had chosen to impeach Andrew Johnson for his role in the New Orleans riot, which Kurt had blogged about. I quoted a contemporary Harper’s Weekly article that had stated that “It is shown by that record that the riotous attack upon the Republican Convention, with its terrible results of massacre and murder, was planned and executed by the Mayor of New Orleans, and that it had the countenance of President Johnson, without which it would never have taken place.” Kurt helpfully and interestingly writes in his e mail that the Congress did mention the riot in the articles of impeachment. Unfortunately, though, the charge was for attempting to bring the Congress into disrepute rather than for his role in the riot.