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A Tale of Two Clauses: Damon Root’s Overruled (Part Two)

Part One of my review of Overruled: The Long War for Control of the Supreme Court summarized Damon Root’s presentation of libertarian constitutionalism as an alternative to liberal Progressivism, and to what Root sees as excessively conservative federalism. Overruled takes particular aim at constitutional federalists as unjustifiably impeding the proper reading of the Constitution and the protection of unenumerated rights against state abridgment.

Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.

As we saw in Part One, the views and political make-up of the Congress that produced the Fourteenth Amendment made it extremely unlikely that they would produce a clause nationalizing the general subject of unenumerated civil rights in the states. After all, this was the same Congress that removed the term “civil rights” from the Civil Rights Act of 1866 in order to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights.

I now want to focus on constitutional text, in particular on the Fourteenth Amendment’s Privileges or Immunities Clause. This single clause supports the entire theory of contemporary libertarian constitutionalism. If Root is wrong here, he is wrong everywhere else. The analysis that follows takes the reader on a tour of the so-called “Comity Clause” of the U.S. Constitution’s Article IV, the drafting and early reception of the Fourteenth Amendment’s Privileges or Immunities Clause, and the jurisprudence of the New Deal Court.[1]

As explained in Part One, Root argues that the Privileges or Immunities Clause both echoes and transforms the “privileges and immunities” originally granted equal protection under the Comity Clause, which declares that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Antebellum decisions like Corfield v. Coryell (1823) interpreted this clause as requiring states to grant sojourning citizens from other states equal access to a limited set of “fundamental” state-secured rights. Thus, if State One allowed its citizens to sell shoes, then a visitor from State Two must also be allowed to sell shoes. If State One does not allow its citizens to sell shoes, neither may a visitor from State Two. What is mandated is equal treatment, not an absolute right to pursue a trade regardless of state law.

The Privileges or Immunities Clause is worded differently from the Comity Clause. Where the Comity Clause refers to the rights “of citizens in the several states,” the Fourteenth Amendment refers to the rights “of citizens of the United States.” Root and other libertarian constitutionalists insist that these are two different ways of referring to the exact same set of rights. Only now, with the adoption of the Fourteenth Amendment, rights once afforded no more than equal protection under the Comity Clause are now transformed into absolute national rights protected against state abridgment. If correct, this would mean that citizens have the right to sell shoes whether or not a state permits its own citizens to sell shoes.

To begin with, this is a rather counterintuitive reading of the Privileges or Immunities Clause. If its framer, Representative John Bingham (R-Ohio), wished to refer to the Comity Clause, why didn’t he use the language of the Comity Clause? In fact, an early draft of the Fourteenth Amendment did use the language of the Comity Clause: it was rejected. The draft that Congress ultimately accepted used language associated with antebellum treaties—language long described as referring to enumerated federal constitutional rights such as those listed in the Bill of Rights. Placing this language in the federal Constitution accomplished the expressly stated goal of its author, Bingham, who said over and over again that his central purpose was to make the Bill of Rights applicable to the states.

The last thing Bingham desired was to “nationalize” the substance of unenumerated state-secured civil rights. This is why, as I pointed out in Part One, Bingham insisted that the term “civil rights” be removed from the Civil Rights Act of 1866.

Root and other libertarians nevertheless insist that John Bingham based his Privileges or Immunities Clause on Corfield v. Coryell and the Comity Clause. Here is Root:

What then are the rights and liberties (privileges and immunities) of a U.S. citizen? As a guidepost, Bingham and other framers of the Fourteenth Amendment pointed to Supreme Court Justice Bushrod Washington’s influential 1823 Circuit Court opinion in Corfield v. Coryell, in which he remarked that “it would perhaps be more tedious than difficult to enumerate” the full extent of the privileges and immunities secured by Article IV.”

This is simply false. There was only one framer of the Privileges or Immunities Clause, John Bingham, and he never once described his proposal as having anything to do with Corfield v. Coryell. Instead, Bingham expressly denied that the Privileges or Immunities Clause was based on the Comity Clause of Article IV. As Bingham later explained from the floor of the House of Representatives:

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States as contradistinguished from citizens of a State [the language of Article IV] are chiefly defined in the first eight amendments to the Constitution of the United States. . . . Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article . . .

According to Bingham, the substantive privileges or immunities “of citizens of the United States” as listed in the federal Bill of Rights must be “contradistinguished from” the privileges and immunities of the Constitution’s Article IV. Bingham’s goal was to force the states to protect those rights that the people themselves had declared to be the rights of American citizenship, especially those listed in the first eight amendments to the Constitution (but also others, such as the enumerated rights of habeas corpus). As Bingham put it, “the enforcement of the Bill of Rights in the Constitution is the want of the Republic.” From his earliest efforts in the 39th Congress, Bingham explained that his efforts were directed at enforcing textually enumerated rights—“this, and nothing more.” It’s a good thing, too, because anything more would have been defeated by the then-governing coalition of conservatives and moderates in Congress.

The equal-access protections of Article IV’s Comity Clause, of course, also count as Privileges or Immunities of citizens of the United States. But the state-secured rights covered by the Comity Clause continue to receive nothing more than equal protection. No transformation has taken place beyond (finally) giving Congress power to enforce the Comity Clause (an omission repeatedly referenced during the 39th Congress).

The Privileges or Immunities Clause clarified that all of the constitutionally enumerated personal rights of American citizens were now enforceable against the states—from the substantive rights listed in the first eight amendments to the equal treatment rights of Article IV’s the Comity Clause. All other matters remained under the control of the people in the states, subject only to the requirements of due process and equal protection. As Ohio Supreme Court Judge John Day explained in one of the earliest cases interpreting the Privileges or Immunities Clause:

This [case] involves the equity as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has been as yet judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment. (Garnes v. McCann, 1871)

It appears then that, despite frequent claims to the contrary, Justice Samuel Miller got it right in The Slaughterhouse Cases when he rejected an invitation to construct an unenumerated right to run a slaughterhouse and enforce it against the preferences of the people’s state representatives. Echoing Bingham (who had given a speech about his constitutional handiwork only months before), Justice Miller distinguished the equal-access rights of Article IV from the substantive national rights of the Fourteenth Amendment. The latter, Miller explained, included all manner of textually secured rights, including the enumerated First Amendment rights of petition and assembly and all of the rights enumerated in the Reconstruction Amendments. It did not, however, include the unenumerated absolute right to pursue a trade regardless of Louisiana law.

Justice Miller’s reading did not, contra Justice Field, reduce the Privileges or Immunities Clause to a “vain and idle enactment.” Prior to its adoption, states were not bound by (nor could Congress enforce) the Bill of Rights. Changing this by adopting the Privileges or Immunities Clause was an enormous achievement in American constitutional liberty. And yet it was not enough for Justice Field, who criticized the Court for refusing to go beyond the protections of the Bill of Rights. As Field put it:

Grants of exclusive privileges, such as is made by the act in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void.

Get it? Justice Field understood that Miller and the majority had limited the Privileges or Immunities of citizens of the United States to enumerated constitutional rights, thus excluding non-textual economic liberties. Miller’s limitation is exactly what Bingham hoped the clause would accomplish—and nothing more.

As Justice Miller realized, not only did Field’s Corfieldian Comity Clause reading of the Privileges or Immunities Clause ignore the different language of the two clauses, adopting it would erase the federalist boundary between state and federal power. Congress, after all, would have full power under Section 5 of the Fourteenth Amendment to establish the national substance of everything from local contract law to marital law to public education—even to matters involving “the pursuit of happiness” (also listed in Corfield v. Coryell). As Miller dryly noted, nothing in the text of the Fourteenth Amendment justified such a radical result.

Miller’s refusal to follow Field for reasons of federalism makes Slaughterhouse and federalism equal targets for libertarians like Root. The same is true of prominent New Deal-era decisions like United States v. Carolene Products (1938). In Carolene Products, the Supreme Court officially abandoned the prior Lochner Court’s practice of enforcing the unenumerated right to contract. Henceforth, the Supreme Court would generally defer to both federal and state economic legislation (thus the “judicial deference” doctrine so strongly opposed by libertarians).

Although the Supreme Court in Carolene Products deferred to democratic control of contract rights, Justice Harlan Stone added a footnote suggesting that there might be rights that would continue to receive active judicial protection. What were these? Those involving a “specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” (Carolene Products, Footnote Four)

Root wrongly characterizes Carolene Products as announcing a doctrine of judicial deference. Instead, this New Deal-era decision announced a doctrine of limited judicial authority. The Court’s authority to second-guess the democratic process must be limited to those claims involving rights that the people themselves placed beyond mere majoritarian control by adding them to the text of the federal Constitution. By limiting the scope of the Fourteenth Amendment to enumerated rights, Footnote Four of Carolene Products also furthers a principle of federalism whereby the people in the states retain the right to regulate all matters not given up to the control of the federal government.

This, of course, is Slaughterhouse all over again, and Root levels the same criticism against the New Deal Court as he did against Justice Miller. What the author fails to recognize, however, is that Footnote Four represented an effort to maintain a degree of judicial engagement in the face of political winds that, at the time, were blowing quite strongly against the Court. In 1938, President Roosevelt had only recently proposed his infamous court-packing plan, and Congress was considering amending the Constitution to allow congressional override of judicial opinions.

A majority of the Supreme Court ultimately decided to back away from striking down New Deal legislation—but how far should the Court take this newfound doctrine of judicial deference? In the face of widespread political pressure, the New Deal Court could have decided to exit the scene altogether and leave both enumerated and unenumerated rights to the tender mercies of the political process.

But just as Justice Miller in Slaughterhouse refused to over-read the consequences of the Civil War, Justice Stone in Carolene Products refused to over-read the consequences of the New Deal. The former preserved federalism while allowing for the protection of enumerated rights, and the latter preserved judicial enforcement of those same enumerated rights.

Only a few years after Justice Stone penned Footnote Four, the Supreme Court raised it to full constitutional status in West Virginia Board of Education v. Barnette (1943). There, the Court struck down a state attempt to force the children of Jehovah’s Witnesses to salute the U.S. flag. The decision, handed down on Flag Day in 1941 (no deference there!), declared that, although the Court now deferred on matters involving unenumerated rights, it remained actively engaged when it came to those rights explicitly enumerated in the Constitution.

Somewhere, John Bingham must have been smiling.

If there is a true villain in the post-Reconstruction reading of the Privileges or Immunities clause, it is the Supreme Court’s decision in Cruikshank v. United States (1875). There, the Court refused to protect even those rights expressly enumerated in the Constitution. Cruikshank stalled the general incorporation of the Bill of Rights for a quarter of a century, and its specific rejection of the incorporation of the Second Amendment right to bear arms was not overruled until McDonald v. Chicago (2010). McDonald’s overruling of Cruikshank was not so much a libertarian victory as it was a vindication of Bingham’s textualist vision of the Fourteenth Amendment and Footnote Four’s promise of judicial engagement in cases involving textually secured rights.

In fact, McDonald could fairly be described as a defeat for libertarian constitutionalism. As Root details in his book, libertarian institutions and lawyers shepherded the McDonald case to the Supreme Court not to vindicate an NRA-style right to carry guns for self-defense, but as a vehicle to open the door to judicial protection of libertarian-supported economic freedoms. Gun-rights groups, of course, recognized what was going on and pressed McDonald’s libertarian lawyer Alan Gura to stay focused on the single issue of incorporating the Second Amendment into the Fourteenth Amendment.

Root mocks these efforts, and he singles out what he calls a Right-wing amicus brief warning the Court not to embrace a libertarian reading of the Privileges or Immunities Clause on the grounds that doing so would allow the justices to “constitutionalize their personal preferences.” Root has Gura complaining about these “bible thumpers and holy rollers who are so afraid of freedom.” What the reader is not told is that the amicus brief was exactly right—as Gura himself made embarrassingly clear during oral argument.

In a portion of the oral argument not included in Root’s otherwise exhaustive account of McDonald, the justices pressed Gura to define the limits of his libertarian reading of the Privileges or Immunities Clause. Gura could have responded by focusing on his client’s need to have the Court rule only in regard to the Second Amendment, saying something like, “Your honor, whatever the scope of the clause, it certainly includes the enumerated rights of the first eight amendments, including the Second Amendment right to bear arms.” This would have furthered his client’s case while leaving the door open to future judicial expansion. Instead, Gura shot for the moon:

Justice Ginsburg: What unenumerated rights would we be declaring privileges and immunities under your conception of it?

Mr. Gura: Although it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it’s impossible to do so under the Due Process Clause.

Impossible to give a full list . . . One can almost see the members of the Court shaking their heads in wonderment. Gura had unnecessarily pressed for the broadest possible reading of the Privileges or Immunities Clause and, in doing so, actually made it harder for the Court to rule in his client’s favor. After Gura’s answer to Justice Ginsburg, it was a foregone conclusion that the Court would once again avoid the Privileges or Immunities Clause out of a (seemingly well-founded) fear that it would open the door to unjustified judicial experimentation. In the end, a majority of the Court followed the principle of Footnote Four and continued the tradition of incorporating rights under the Due Process Clause. Although they incorporated the Second Amendment, they rejected Gura’s invitation to read the Privileges or Immunities Clause as an undiscovered fountain of libertarian rights. Unfortunately, this meant avoiding the Privileges or Immunities Clause altogether.

Root spends the latter portion of his book trying to convince the reader that there is growing judicial appreciation of libertarian constitutionalism. In addition to McDonald, Root points to other recent Supreme Court decisions limiting the scope of federal power. But the actual opinions in the cases he cites ignore libertarian theories of the autonomous individual and instead regularly rely on theories of federalism. For example, United States v. Lopez (1995) (invalidating the federal Gun Free School Zones Act) and United States v. Morrison (2000) (invalidating the federal Violence Against Women Act) both invoked the principle of federalism in limiting Congress’ power to regulate matters properly left to the authority of state majorities.

Likewise, however much libertarian scholars contributed to the recent challenge to Obamacare’s insurance mandate, the principle arguments against the mandate were distinctly federalist. Opponents of Obamacare conceded, for example, the power of state governments to mandate insurance. During oral argument, Justice Kennedy voiced his particular concerns about the law using the language of federalism:

Justice Kennedy: Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way. (Emphasis added)

Finally, when the Supreme Court ultimately invalidated the Medicaid expansion provisions in the second half of NFIB v. Sebelius, it did so on expressly federalist grounds.

The one area where libertarians might claim some degree of victory involves the Supreme Court’s recent embrace of gay rights. Although Obergefell v. Hodges (2015) was not decided under the Privileges or Immunities Clause, the Obergefell majority has declared that the Fourteenth Amendment’s Due Process Clause requires states to deliver marriage licenses to same-sex couples.

Obviously, Obergefell had nothing to do with the original meaning of either of those clauses or even the Equal Protection Clause. Indeed, Justice Kennedy did not even try to base his holding on the original meaning of constitutional text. But Kennedy’s free-floating approach to defining liberty reminded the Obergefell dissenters very much of the once-abandoned libertarian approach of Lochner v. New York—a fact celebrated by a number of libertarian Court-watchers.

It is possible that Obergefell is but the first step in the direction of libertarian constitutionalism. Perhaps the next shoe to drop will be Justices Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor embracing and enforcing economic freedoms against overbearing commercial regulation.

Or not. That’s the problem. When there are no textual or historical constraints on judicial decision-making, it is difficult to say which social concerns will be constitutionalized and which will remain subject to democratic decision-making. We become subjects waiting for the Supreme Court to tell us what we may or may not do, what we may or may not discuss and decide.

Thus the irony of contemporary libertarian constitutional theory: What begins as a theory of limited government power and maximum individual autonomy ends as a theory of maximum federal power and minimum individual influence.

Federalists know this. They struggle against the lawless interpretive methodology that grounds so much of contemporary constitutional jurisprudence as much as they struggle against modern federal regulatory power, and for the same reason. The only just power of any government, or any branch of government, comes from the consent of the governed. In the United States, that consent is found in a written Constitution ratified by the People themselves, one establishing a dual, federalist system of government.

There is good reason to think that, at least at the present moment, libertarians will get closer to their goal of individual freedom by joining, not fighting, the federalist cause.

[1] An even more extended investigation of the same issues is in my book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press, 2014).

Reader Discussion

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on July 10, 2015 at 10:06:53 am

Prof. Lash:

Great piece!

I withdraw my concern listed in earlier comment regarding Bingham. Your reading is spot-on!
Perhaps, I should call my earlier comment "Misreading Kurt Lash."

"What begins as a theory of limited government power and maximum individual autonomy ends as a theory of maximum federal power and minimum individual influence." - Perhaps, we could substitute "..maximum (Judicial) power" for for "maximum Federal power" as the Court now seems, via its practice of enforcing un-enumerated *rights,* to be determined to redefine American social order.

"Perhaps the next shoe to drop will be Justices Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor embracing and enforcing economic freedoms against overbearing commercial regulation." - Not bloody likely, I'd say.
What is more likely is that the Black Robes will find an un-enumerated right to "income equality" (name your poison) and will defer to some Legislative construction that requires such an outcome. Perhaps, the Obama Administrations new Affirmative Affordable Housing Program(s?) will be found to be an acceptable exercise of government power necessary to support the un-enumerated right to "diversity" in housing.
No, John Bingham must be rolling over in his grave!

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gabe
on July 10, 2015 at 16:52:28 pm

“Root and other libertarian constitutionalists insist that these are two different ways of referring to the exact same set of rights.” Not quite right, but close. Both of them refer to the positive and natural rights granted by government but the “Privileges and Immunities of citizens in the several states” refers to natural rights protected and the positive rights granted by the state; while the “privileges or immunities of citizens of the United States” refers to the natural rights protected and the positive rights granted by the US constitution. Different sources of positive rights granted and natural rights protected (one the state, one the federal constitution). So they are not the “exact same set of rights” although they are similar.

Lets work through it piece by piece. “Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that” This is just the introduction where what he is about to say is mean to explain the Privileges or Immunities clause. “the privileges and immunities of citizens of the United States [the language of Article IV], as contradistinguished from citizens of a State are chiefly defined in the first eight amendments to the Constitution of the United States” this is explaining the core difference between the comity clause and the 14th amendment privileges and immunities clause, but the difference is that in the for the comity clause the source of the positive and natural rights are the states, while the 14th amendment are based on the rights protected by the U.S. constitution. Although the natural rights of the 9th amendment are also included those are already included in the comity clause immunities (assuming the state protects the natural rights). The difference or “contradistinction” in where the source of the rights are (comity clause are those rights protected by the state compared to the 14th amendment which is the federal constitution). But both protect the natural and positive rights.

Um, Justice Miller was right on slaughterhouse? He was wrong in soo many ways. He didn’t even support constitutionally enumerated rights in the constitution from being applied to the states. Only things that were exclusively protected by the federal government he considered validly protected by the clause, such as to “demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.” It is just not true that miller’s decision included “all manner of textually secured rights, including the enumerated First Amendment rights of petition and assembly and all of the rights enumerated in the Reconstruction Amendment.” Even today we have only partial incorporation of the bill of rights, never has the Supreme Court held we had full incorporation of all of the bill of rights (even today grand jury is not incorporated). Miller opinion cant be right, and almost no one believes it is correct today (as Akhil Amar says, “Virtually no serious modern scholar—left, right, and center—thinks that Slaughter-House is a plausible reading of the Fourteenth Amendment”). It did reduce it to a “vain and idle enactment” that has never been relied upon to protect almost any right (as how often are rights on the high seas really asserted?).
Instead it is Justice Fields in dissent (with three other justices joining him) was correct when he said that it protected “such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States.” Which does include (as far back as the Case of Monopolies), that such monopolies are a violation of our natural rights.

Its true, that Justice Fields did not think a bill of rights was needed to protect the natural rights, but that is exactly the argument of Alexander Hamilton and the reason we have a 9th amendment! We didn’t need a bill of rights to protect our natural rights, and doing so would be dangerous because people (like you) would think that are all our rights, which we why we have the 9th amendment to say you are wrong. Justice Field’s opinion was correct one limited to Bingham’s opinion on the amendment protecting all natural and positive rights protected by the federal constitution. Congress does not have the power to establish all the positive and natural rights, only those rights protected in the constitution (including the 9th amendment) are protected by the privileges and immunities clause. These do include general things like liberty and the pursuit of happiness, those are the natural rights.

Congress has almost no power to establish what the rights under the P&I clause are (They do have some power to describe how to remediate violation of those rights by states, but that isn’t the same as enumerating what those rights are which the court must do in defining the rights protected by the federal constitution).

I think we all know that the “political winds that, at the time, were blowing quite strongly against the Court.” Clearly President Roosevelt’s court packing scheme was used to pressure the court into doing what he wanted. But that doesn’t make those court decisions right (at least not as an originalist mater), instead they suggest that those decisions are under a cloud of coercion and should not be relied upon as precedent as they were not decided as the best logical understanding of the constitution as they believed it to mean, but instead just a political calculation.

The core problem is that you ignore the 9th amendment.

Obergefell is a silly decision that does not explain itself. Yes it properly rejects the reasons trying to justify prohibiting same sex marriage, but it should have been justified exclusively under the equal protection clause, not the due process clause (or the P or I clause), as there is no natural right for state recognition of same-sex marriage.

There is NO WAY that you can claim what we believe on strong protection of natural rights is somehow a way for the government to have more power. All government would have less power, including state government. There is no problem with federalism where it does not violate the rights of individuals, but to claim that you can take people’s liberty away because a local majority said so is just simply bad. We have a written constitution, and that constitution has a 9th amendment whether you like it or not.

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Devin Watkins
on July 10, 2015 at 16:53:14 pm

"natural rights and positive rights granted by government"*

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Devin Watkins
on July 10, 2015 at 17:26:39 pm

Devin Watkins above says "The core problem is that you ignore the 9th amendment."

But see, Kurt T. Lash, The Lost History of the Ninth Amendment (Oxford University Press, 2009). http://bit.ly/1TqI8Jk

Briefly, the original understanding of the Ninth Amendment, and the common understanding of the Ninth at the time of Reconstruction, viewed that provision as working alongside the Tenth Amendment as a guardian of the people's retained right to local self-government. See above cite.

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Kurt Lash
on July 10, 2015 at 17:56:08 pm

I have read your argument before, I just disagree with it. Needless to say if the 9th amendment does include unenumerated natural rights being directly protected (by prohibiting their disparagement by not protecting them vs other enumerated rights), then those rights would likewise be protected by the Fourteenth Amendment’s Privileges or Immunities Clause (as all rights both positive and natural in the US constitution would be protected from state violation). You seem to be suggesting that is the meaning of the 14th amendment right? (although I strongly disagree with your reasoning) Instead you seem to be taking the 9th amendment as a greater of greater power to states, which in a way it was at the time it was written. Increasing the amount of "rights" to include natural rights that can be prohibited of violation by federal power (but without touching state power at the time), meant more things that states can decide. But that was only the case as long as the 9th amendment only applied to the federal government. With the P or I clause though, that (as you say) incorporates the rights protected by the federal constitution. I just point out that it also protects any rights protected by the 9th amendment for the same reason. And now with the P or I clause applying those natural right restrictions on federal power to the states, the 9th amendment is no longer just a federalism enhancing amendment (as you rightfully claim was true at the time of the founding), but when taken with the P or I clause must mean those natural rights are prohibited from state violation as well. We are no longer in a world before the 14th amendment, and the 14th amendment interacts with the 9ths amendment as much as any other part of the bill of rights.

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Devin Watkins
on July 10, 2015 at 19:35:32 pm

Devin,

I'm glad we agree that I do not ignore the Ninth Amendment. And I'm also glad to know you've read and agree with my argument that the Ninth Amendment originally served as a federalism provision preserving the people's retained right to local self-government.

This leaves the impact of the Fourteenth Amendment. You are quite right to suggest that the Ninth represents one of the Privileges or Immunities of Citizens of the United States. The same is true of the Comity Clause (see my essay). But just as the rights of the Comity Clause did not change their nature with the adoption of the 14th Amendment, neither did the retained rights of the Ninth. Just as the Tenth Amendment remained "federalist" after the adoption of the Fourteenth Amendment, so did the Ninth. This is why hundreds of court decisions from 1868 to the turn of the century (and beyond) cited the Ninth and Tenth Amendments as twin guardians of federalism.

Of course, all of the personal rights listed in the bill of rights count as privileges or immunities of citizens of the United States. It's just that some of these enumerated liberties involve the historically critical right to local self-government (see Justice Kennedy in Bond if you wonder how federalism can operate as one of the people's constitutional liberties). States may no more violate this aspect of American liberty than they can any other enumerated right (see the Court's treatment of state acquiescence to federal power in New York v. United States). States cannot violate individual rights, and states may not violate the federalist separation of power guaranteed by the Ninth and Tenth Amendments.

But regardless of whether you agree with any of the above, it is simply a fact that the moderate Republicans would never have proposed or agreed to a provision opening the door to federal enforcement of unenumerated rights (whether common law, natural, or any other kind) in the states. Not only did they maintain a commitment to federalism, they understood the danger of Democrats controlling the identification and enforcement of such "natural rights" once they returned to their seats in Congress. This would have been a disaster for the freedmen in the south. I'm pretty sure that Reconstruction historians all agree on that point.

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Kurt Lash
on July 10, 2015 at 21:19:40 pm

"...it is simply a fact that the moderate Republicans would never have proposed or agreed to a provision opening the door to federal enforcement of unenumerated rights (whether common law, natural, or any other kind) in the states."

-Yes, this is true and it certainly appears to be the position of Bingham.

"Not only did they maintain a commitment to federalism, they understood the danger of Democrats controlling the identification and enforcement of such “natural rights” once they returned to their seats in Congress."

-This is also true and your argument appears to be that the concern shared by the Republicans was limited to "natural rights" - i.e., those enumerated / protected by the US Constitution NOT those other rights (positive ones provided / secured by State Governments) and perhaps some derivative of the 9th and 10th Amendments.

Yet, if this is so (I think it is by and large), we must then ask ourselves, if the Republicans understood the danger from returning Democrat influence in the US Congress, ought they not to have (or should have) known that these same "reconstructed" Southerners would be just (more so, perhaps) as apt to deny the P&I *rights* of, and at, the State level. Were they so in the thrall of Federalism doctrine that they would consciously leave the Freedmen to the wiles of their former overseers?

And yet, I don't recall (other than the Radicals) any proposal(s) to secure, at the State level, these rights.

What am I missing? Must I conclude that the Congress simply shielded itself behind the banner of Federalism rather than make a serious attempt to remediate the problems that the Freedmen would (surely) encounter. Is it as Prof. Lash says simply the end product of a compromise or was there a greater expectation of the protections offered by the Fourteenth via P&I or equal protection clauses?
Or quite simply, was the strength of the conviction for the principle of Federalism so great as to require that the Congress stay it's hand?

Any help / thoughts out there?

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gabe
on July 11, 2015 at 08:25:18 am

I had meant that you ignored the 9th amendment in this article and how it interacts with the 14th, not that you had not written stuff on the 9th in other publications. And no doubt that the 10th amendment stayed a strong federalism amendment even after the 14th, as it had nothing to do with rights (it had to do with a limitation on the powers instead).

But back to the 9th, so you say the 9th amendment was a part of the "privileges or immunities of citizens of the United States," so the real problem then is a disagreement on what the meaning of that amendment was rather then the 14th. There are many things that state government does that does not violate anyone's natural rights, and for these things government can still do those with full federalism protections against interference by the federal government.

There was no problem was the democrats returning to their seats in congress under the interpretation that I am advocating. Congress has no control and cannot define in any way what those natural rights or "privileges or immunities of citizens of the United States" are. Only the courts can define what those rights are, but while they are unenumerated, all the unenumerated rights are natural rights (pre-exiting government) which limits significantly what can be protected (you cant have a natural right to government provision of healthcare for instance or government provision of anything, but you can have a right to say wear whatever hat you wish or get out of bed on whatever side you wish or enter a willing church and have a gay marriage ceremony, but you don't have a natural right for that ceremony to be recognized by the state). Congress has some role in if there are violations of those rights in the states what the remedy would be, but that is all.

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Devin Watkins
on July 11, 2015 at 15:24:01 pm

Devin wrote: "I had meant that you ignored the 9th amendment in this article and how it interacts with the 14th, not that you had not written stuff on the 9th in other publications."

True--the essay seemed long enough. For those who want more, particularly regarding the original understanding of the Fourteenth Amendment's impact on the Ninth Amendment, see Kurt T. Lash, The Lost History of the Ninth Amendment (Oxford, 2009) (pp. 227-67); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge 2014) (pp. 277-99). I have more cites if anyone is interested!

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Kurt Lash
on July 11, 2015 at 15:26:32 pm

There seems to be an indefatigable cohort of academics that is determined to somehow rearrange history to show that the conservative and moderate Republicans of the 39th Congress were anxious to cede to the National Government vast areas of State civic responsibility by incorporating the Bill of Rights in the 14th Amendment. Most often the Court has denied direct incorporation in favor of concepts such as Ordered Liberty (Due Process clause) that conveniently give it license to override the original intent. Now we are seeing Privileges or Immunity coming into vogue. The contention is that the P or I of the Amendment was different than the term in Article lV, Section 2. But, a report of the House Committee on the Judiciary submitted in 1871 by John Bingham recited that the Fourteenth Amendment: “Did not add to the privileges or immunities” of Article lV. AS Philip Hamburger has written, “If the 14th Amendment were understood to have incorporated the Bill of Rights, so profound a change would have been directly, candidly, and clearly discussed….It is therefore powerfully suggestive that there is no evidence of either a contemporary congressional debate or an underlying national controversy about incorporation. Incorporation was a dog that did not bark”.

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Willmoore
on July 11, 2015 at 16:01:41 pm

Regarding the Woodhull Committee Report (referenced above), see Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, pp. 236-41. In brief, there is nothing about this post-adoption committee Report that calls into question the voluminous evidence regarding the original understanding of the Fourteenth Amendment's privileges or immunities clause as applying the Bill of Rights against the States. Indeed, a close reading of the Report plausibly supports this general understanding. See id. For a general review of post-adoption commentary, including Bingham's speech delivered soon after the Woodhull Report, see id. at 232-76. I'd love to hear Willmoore's (and anyone else's) response to these materials.

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Kurt Lash
on July 11, 2015 at 17:40:38 pm

What is a poor, simple non-lawyer/academic to make of all this?

Prof. Lash is correct in this regard.

Whether one approves of it or not, a) incorporation of the BOR is a fact (it is more than a current vogue) and b) incorporation was *clearly* the intent of Bingham as indicated in the link I provided above. The extent of incorporation is, and will be a matter of some dispute, both regarding how much HAS been incorporated and how much should be. Yet, clearly the BOR has been incorporated.

One should find it exceedingly strange to believe that a Congress controlled by Republicans (and a fair number of Radicals) having just undergone the ordeal of a rather devastating Civil War a) would not see the necessity of cementing their anti-slavery gains and b) would not have the conviction to secure those gains via an amendment whose express and avowed intent was to so secure those gains (see innumerable comments by Bingham and others). If the BOR was not intended to be incorporated, what then was the purpose of the whole exercise?

However, there is certainly some grounds for a) disputing whether the drafters intended to co-opt State police power re: State P&I's and b) castigating the drafters for not 1) recognizing the dangers that existed at the State level for the Freedmen and 2) failing to provide sufficiently robust mechanism to eliminate or ameliorate those dangers.
I think in some ways we are attempting to rewrite the past in order to avoid the undue (and unjustified) application of the P&I Clause as currently advanced by the Left and the Black Robes. We would perhaps be better off to accept the clearly expressed intent of the drafters of the amendment and to critique the peculiar method of "divining" new applications / "emanations" of both natural and positive rights that our Jesuitical Black Robed Guardians seem to whimsically create for us.
It seems to me that we can accept the historical record AND still critique the particular contemporary exposition / expansion of "rights."

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gabe
on July 11, 2015 at 21:57:08 pm

Its not the case that the BOR has been entirely incorporated yet (although I believe that is what the P or I clause does). There are at least 4 parts that have not been incorporated yet: 1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.

(also depending on how you count it, the right to jury selected from residents of the state and district where the crime occurred has not been incorporated, nor has the re-examination clause)

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Devin Watkins
on July 12, 2015 at 11:24:18 am

Devin:

Yep, I was not clear enough in my phrasing. The examples you cite appear correct. One of my pet peeves is the selection of jury members from far afield, representing neither the parsonage / parish where the crime occurred or where the defendant is said to have done the deed.

My poorly worded point was that it appears that it was the *intent* of the framers of the 14th to incorporate the BOR. However, as in most cases, it appears that the intent of the drafters is of absolutely no consequence to the Black Robes (irrespective of the rightness or wrongness of the framers intent).

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gabe
on July 12, 2015 at 11:25:51 am

Oops! forgot:

"...done the deed, nor who are in any way "a jury of his peers."

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gabe
on July 12, 2015 at 12:13:52 pm

Devin Watkins says:
“… to claim that you can take people’s liberty away because a local majority said so is just simply bad. We have a written constitution, and that constitution has a 9th amendment whether you like it or not.”
Devin, the 9th amendment says: The enumerations in the Constitution, of certain rights…” -- are not unremunerated (“natural and positive rights). That is why the 10th Amendment refers to “the States…and the people. “
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins
on July 12, 2015 at 12:20:00 pm

"unenumerated"

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John E. Jenkins
on July 12, 2015 at 20:35:01 pm

So far almost all my arguments have been directed at the argument made in this post. But as you wish to cite The Lost History of the Ninth Amendment as the reason to ignore the 9th amendment in understanding the 14th, let me explain why I think the view you present in that book is incorrect. Lets start with the part on page 237 where you acknowledge at least an argument closely related to the view I am expressing as “possible.” However I don’t argue the meaning of the 9th amendment changed from a rule of construction to a personal-rights guarantee, it was always both. A rule of construction that limited the powers of the federal government where they conflicted with personal natural rights. That was the meaning of the 9th amendment at the founding until the adoption of the 14th amendment. Even after the 14th amendment that was the understood meaning of the 9th amendment on its own (which is why you still see that understanding expressed in some statements talking about the federal government), but the 14th amendment applied what had previously been only been against the federal government to the state governments (a limitation on the powers when applied to violate natural rights). Then as you acknowledge it could be applied against the states, and in fact as you say two congressmen explicitly expressed their belief that the 9th would be applied to the states (James Nye although I agree with your opinion that his views on the necessary and proper clause were not held by others at that time, and senator John Sherman who viewed the 9th amendment as applying to the states)

Now you disagree with this argument for several reasons lets go through them. First, your argument (on page 239) is that everyone agrees that the 10th amendment wasn’t incorporated because it “it expressly protects states’ rights” and so the 9th amendment which also “protected states rights” also likewise could not have been incorporated. While it is true that the 9th and 10th amendment expanded the power of the states by limiting the power of the federal government, they did so in significantly different ways such that it is completely reasonable for the 9th to be incorporated, but not the 10th. The 10th amendment was a limitation on the powers of the federal government (to only those enumerated). The 9th was an recognition of natural rights that the federal government could not violate. The words “privileges or immunities” in that clause focus explicitly, as was the understanding at the time, only on the rights (such as the right to freedom of speech), that will be applied against the states. Nothing about a limitation in powers of the federal government would make any sense to apply against the states. This is why the 9th, but not the 10th was incorporated, despite both amendments originally added to the constitution to only limit the powers of the federal government (even the 1st amendment was added only to limit the powers of the federal government by recognizing a right, but it likewise was incorporated).

You next make the argument (pg. 240) that abolitionists did not argue about the 9th amendment being applied to prohibit slavery. But as we both know, the 9th amendment (prior to the 14th), was understood to only apply to the federal government (unlike some other parts of the constitution). So it would make no sense for them to argue the 9th amendment applied at the time, because everyone at the time (and I today) agreed that it did not at that time. Your argument about the 9th amendment being added to prevent a “false construction” is exactly right for when it was added, as at that time it was only meant to apply to the federal government (as everyone including I acknowledge), but has no bearing on the meaning after the 14th amendment. All your arguments about the civil war south and the Indiana Supreme Court then fall away, as everyone agrees (the south, and the north and me) that the 9th amendment at that time was not meant to apply to the states.

You then just assert on page 244 that the 9th amendment was not incorporated and was not understood to be incorporated. I’m sorry, but I just don’t believe that, and I have not seen the evidence that you suggest. Yes, John Bingham mentions the first eight amendments as being incorporated, but that doesn’t meant the 9th was not incorporated. You state that he didn’t believe the 9th amendment would be incorporated, but you provide no evidence of this. The natural logic of the meaning of the P or I clause is clear, all rights protected by the federal constitution are incorporated against the

The Court has never held that to be true. But the court has never held the P or I clause incorporated rights. Despite the court, the historical record is indisputable on that fact. The fact that the Court has never truly dealt with the original meaning of the 14th amendment P or I clause as incorporating the bill of rights, means the precedent that the 9th amendment is not incorporated is likewise not good precedent. Assuming you agree the 14th amendment P or I clause is currently misunderstood by the court, you cannot then rely on the court precedent excluding the 9th amendment from this clause.

On page 249, you again explain (mostly) my position, but go on to argue that whatever rights are protected must be a limited subset of the full 9th amendment rights, because things like the rights under the 9th amendment included “rights retained by the people involved collective or majoritarian rights, in particular, the right to local self-government in all matters not delegated to the federal government.” This is wrong, these rights are not included in the 9th amendment. The 9th amendment protects ONLY natural rights, those that come before government, and things like the right to “local self-government in all matters not delegated to the federal government” are not natural rights as they must occur AFTER the creation of the federal government. The right to self-defense that you mention on the other hand may actually be a natural right (although it is also a right that the Court acknowledged in McDonald v. City of Chicago).

You then go into a long section about strict construction and the rights of states as sovereigns. Clearly regardless of the 9th and 14th amendment the states must maintain their sovereignty (although with limitations on the ability of states to violate the rights of their citizens). I don’t comment much on this part, because I agree with all of it, but it just doesn’t support your view of the 9th amendment after the 14th amendment. You then go into slaughterhouse, but as we talked about that above, I’m not going to get into that again.

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Devin Watkins
on July 12, 2015 at 20:39:22 pm

"against the " states*

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Devin Watkins
on July 12, 2015 at 23:33:02 pm

Devin writes, "I don’t argue the meaning of the 9th amendment changed from a rule of construction to a personal-rights guarantee, it was always both. A rule of construction that limited the powers of the federal government where they conflicted with personal natural rights. That was the meaning of the 9th amendment at the founding until the adoption of the 14th amendment. . . . The 9th amendment protects ONLY natural rights, those that come before government, and things like the right to “local self-government in all matters not delegated to the federal government” are not natural rights as they must occur AFTER the creation of the federal government."

Devin, if the Ninth only protects individual natural rights, you'd be right. Unfortunately, there is not a shred of evidence that this narrow reading of "rights" informed the original understanding of the Ninth Amendment. Instead, we know for a fact it was not the understanding of its drafter, James Madison, and it was not the understanding of antebellum commentators, and it was not the understanding of anyone who wrote about the Ninth Amendment for the first 60 years of the Constitution. I'm not sure of your method of interpretation, but if it is based on evidence of original understanding, the evidence simply does not support your narrow reading of "retained rights." All non-delegated rights, whether natural, individual, majoritarian or collective or common law--ALL non-delegated rights were retained by and to the people. This was Madison's reading and the reading of every other court and legal commentator for the next 150 years. And this meaning remained the common understanding in 1868.

I will concede this, however: As I presume you know from reading my latest book, I now believe that all of the rights listed in the first ten amendments count as protected privileges or immunities of citizens of the United States. This includes the Ninth and Tenth Amendment--as I stated in my prior posts. However, all this means is that states may not violate amendments 1-8 and states may not violate the the people's retained right to local self-government protected by amendments 9-10. Again, I stressed this exact point in earlier posts.

So since I'm now repeating arguments, I'll stand on the above and encourage anyone interested to read, in their entirety, my books on the Ninth and 14th Amendments if they are interested in the historical evidence regarding the original understanding of these two critical clauses in our Constitution.

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Kurt Lash
on July 13, 2015 at 11:06:22 am

Ah, a bracing example of legal scholasticism and how many angels can dance on the head of the 14th Amendment. From the formation of the union until today, the federal, state, and local governments of the United States have routinely denied the rights of citizens, and almost always with the solemn head nodding of the judiciary. As far as I can tell, the bulk of legal scholarship is simply grist for the mill of rationalizing legal judgments.

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Jose Ortega y Gasset
on July 13, 2015 at 14:51:14 pm

Asking me to demonstrate evidence of the interpretation I claim is perfectly fine. You can start with the words used (you can’t retain something you didn’t already have, therefor it must pre-exist the government not be granted by government, and which must therefore be natural rights). But lets just deal with what the people at the founding said:

James Madison when introducing the bill of rights explained them this way: “In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” 1 Annals of Cong. 454 (Joseph Gales, ed. 1790), available at http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=228
(his notes on this section also described it as “natural rights” which he considered (correctly) that even some enumerated rights like freedom of speech to be natural rights)

Here is a draft version of the bill of rights written by Roger Sherman in committee: “The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States.”

You can look at other members of the constitutional convention like James Wilson who said: “Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.” He was the person at the Pennsylvania ratification convention who said that, “In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.” Which are the exact arguments that lead to the 9th amendment being added.

Another instance was in the debates about proposing the bill of rights Representative Egbert Benson said, “The committee who framed this report proceeded on the principle that these rights belonged to the people; they conceived them to be inherent; and all they meant to provide against was their being infringed by the Government.” Rights that are “inherent” and that belong to the people are another way of saying natural rights. 1 Annals of Cong. 759 (Joseph Gales, ed. 1790), available at http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=381

Sedgwick objected (in the same debate) that if that were true the committee could have gone into “lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper….” Sedgwick, agreed that these were inalienable natural rights that could not reasonably be questioned, but was trying to describe how such a list would be without limit. This again is why the 9th amendment was added to protect these natural rights without enumeration.

These are only some of the people who spoke during the convention or the ratification or the debates on the amendment. There are plenty of other quotes after the ratification. But even so, if the rights protected by the 9th amendment were more then the natural rights, it would be almost impossible to say what was and what wasn’t a right protected. You can have a positive right to almost anything, is it just up to judges to define whatever they want to grant a right in? That doesn’t make any sense (that would destroy the idea of a limited government of the people). Limiting the scope of the rights protected by the amendment to only natural rights means that there is little harm in recognizing the right. Any recognition of a natural right by government must be a limitation on just powers of government. It grants no new powers (like say a right to government provided healthcare would), and therefor cannot be used to oppress the people. This is why it was safe to allow these to be unenumerated (but not powers).

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Devin Watkins
on July 13, 2015 at 15:32:37 pm

Hey Jose!

When can I buy you a beer?

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gabe
on July 13, 2015 at 15:37:13 pm

Oh and its even weird to talk about "non-delegated rights." We don't "delegate" our rights to others. Powers are delegated (we authorize and transfer the power to do something). We retain our natural rights (we keep possession of rights we already had). Positive rights are granted by government (government creates the positive right and bestows it on people).

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Devin Watkins
on July 13, 2015 at 16:17:25 pm

[…] every time it restricts individual liberty, or just some of the time? In a provocative two–part critical review of Damon Root’s book, “Overruled,” Professor Kurt Lash argues for […]

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Image of Yes, the Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash | Information From World
Yes, the Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash | Information From World
on July 13, 2015 at 16:41:39 pm

[…] every time it restricts individual liberty, or just some of the time? In a provocative two-part critical review of Damon Root’s book, “Overruled,” Professor Kurt Lash argues for […]

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Image of Yes, the Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash - LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives
Yes, the Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash - LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives

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