Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.
Over at the Volokh Conspiracy, Kurt Lash has been guest blogging his new book on the Privileges or Immunities Clause of the 14th Amendment. Kurt has brought forward a host of new materials and arguments that are of significant interest. 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).
While I have some questions about Kurt’s theory, it is nonetheless of significant interest. Today, however, I want to focus on an important bit of evidence that Kurt discusses: a New Orleans riot. Kurt writes:
The Democrats’ argument exploded that July in a bloody riot in New Orleans. Louisiana freedmen had assembled in a convention to discuss amending the state constitution. In response, local officials organized an attack on the convention that left 40 freedmen dead, with hundreds more wounded. Instead of condemning the attacks, Johnson encouraged local officials to suppress any further “illegal assemblies,” and blamed the Republicans for encouraging the freedmen to engage in an inflammatory assembly. Johnson’s response was a huge political blunder.
While this riot was an important event leading to the 14th Amendment, I want to focus on a different aspect of it. The Republicans would later impeach Andrew Johnson, doing so on the fairly problematic grounds of his refusing to enforce a statute that people today would regard as unconstitutionally infringing on his executive power to remove cabinet officials. Perhaps a better basis for impeaching Johnson would have been his possible participation in and inadequate response to the bloody riot in New Orleans. According to this Harper’s Weekly article, “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.” Such actions might have been a genuine high crime and misdemeanor unlike the action for which Johnson was impeached – the testing of a likely unconstitutional law.