A Radical Original Meaning
Editor’s Note: This review is part of a symposium on Randy Barnett and Evan Bernick’s The Original Meaning of the Fourteenth Amendment.
A major contribution to our understanding of the “Second Founding” that remade the United States after the Civil War, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit advances the bold claim that fidelity to the Constitution requires nothing less than a radical shift in how we comprehend Sections 1 and 5 of the Fourteenth Amendment. The problem is not, authors Randy E. Barnett and Evan D. Bernick explain, that the current approach to the Fourteenth Amendment has led to disaster, for by their own account the United States in 2021 is a cynosure (albeit an imperfect one) of freedom and opportunity. Rather, what drove the authors to write this book is their conviction that, as they put it, most of what now “comprises the conventional wisdom about the meaning of the most salient clauses of the Fourteenth Amendment is wrong.” What is more, to persist in these errors is to risk undermining the legitimacy—both moral and sociological—of our constitutional order.
These are strong assertions and many readers will not be persuaded. But even skeptics will benefit from a careful read of The Original Meaning of the Fourteenth Amendment, for Barnett and Bernick have written a book that is ambitious in all the best senses of the word. It adduces a wealth of historical sources, both legal and non-legal. The authors engage seriously with the scholarship in the area, including recent groundbreaking work by Nathan Chapman, Christopher Green, John Harrison, Martha Jones, Kurt Lash, Michael McConnell, John McGinnis, Michael Rappaport, and Ilan Wurman. Almost invariably, the authors anticipate and forthrightly respond to potential counterarguments. The Original Meaning of the Fourteenth Amendment also takes the trouble to delve into constitutional history outside the courts and to recognize a host of individuals whose contributions are too often overlooked, including Lysander Spooner, Victoria Woodhull, and Ida B. Wells.
So how did things go awry with respect to Fourteenth Amendment interpretation and construction? And—a far trickier question—what ought we to do about it? If Barnett and Bernick are right, then in the roughly century and a half since the Civil War, the United States has climbed a mountain—but by the wrong trail. In their view, we need to cross over to the path we failed to take soon after the Fourteenth Amendment’s ratification back in 1868. Yet for all its erudition and sophisticated argument, The Original Meaning of the Fourteenth Amendment is murky on the subject of how significant an undertaking this will be. That is not to say that we should refuse to set out on the journey Barnett and Bernick prescribe—merely that contrary to its authors’ protestations, the radicalism of The Original Meaning of the Fourteenth Amendment is far more than conceptual.
To make their case for a revised understanding of the original meaning of the portions of the Fourteenth Amendment most relevant to present-day constitutional controversies, Barnett and Bernick methodically analyze the history, “letter,” and “spirit” of each of the three major components of Section 1. Part I, which makes up the bulk of the book, is devoted to the Privileges or Immunities Clause. Along with a number of other prominent academics, the authors believe this clause merits pride of place as the primary Fourteenth Amendment vehicle for guaranteeing the rights of American citizens and that its relegation by the United States Supreme Court to also-ran status back in the late nineteenth century was a major blunder. Acknowledging that the terms “privileges” and “immunities” have multiple potential meanings, Barnett and Bernick lay out a detailed, four-part framework for identifying them.
Part II addresses the Due Process Clause, which Barnett and Bernick pointedly refer to as the Due Process of Laws Clause, the better to convey their argument that, properly construed, this clause protects all persons (not just citizens) by exerting a powerful check on arbitrary state government power.
In Part III, the authors turn to the “Equal Protection of the Laws” Clause, as they call it. This clause guarantees all persons (again, not just citizens) that state executive branch officials will evenhandedly enforce the laws, including laws designed to protect individuals from private—as contrasted with state—action. Current constitutional doctrine falls short, the authors explain, in limiting the scope of the Equal Protection of the Laws clause to state action, thus providing government with a free pass to look the other way as the vulnerable are subjugated by non-government lawbreakers.
All very interesting, one might respond, but what actually turns on this proposed reconstitution of Section 1? Here the authors shrink from acknowledging the full ramifications of their own research and analysis. They insist that even though “nearly everything” about the reigning Section 1 paradigm is erroneous, embracing the true original meaning of the Fourteenth Amendment “as a whole” would not lead to “results that differ radically from those that current doctrine would produce.” Why not? Because “misinterpretations of some” Section 1 clauses have led to countervailing misinterpretations of other ones “to compensate for the error.” By the operation of constitutional hydraulics, these compensations have in turn generated results “often consistent with what the original meaning of the whole amendment would warrant.” The leading example they offer is the Supreme Court’s refusal to give proper effect to the Privileges or Immunities Clause in its landmark 1873 Slaughter-House Cases decision, which failure over time has been offset by expansions of the reach of Section 1’s Due Process and Equal Protection Clauses.
But having assured readers that little has to change on the doctrinal front, the authors go on to admit that restoring the original meaning of all three of Section 1’s major clauses may in fact result in “big departures” from current constitutional doctrine. One such potential departure involves economic liberties, which would enjoy more extensive judicial protection to ensure that state legislative action is grounded in real concern for the public welfare, as distinct from cronyism or the arbitrary flexing of power. A second would take the form of judicial enforcement of state duties to afford effective protection from violence by non-government actors—such as rampaging mobs, which have of course been a serious and recurring problem throughout United States history. Barnett and Bernick also foresee an augmentation of Congress’ powers under Section 5 of the Fourteenth Amendment, which provides that the national legislature “shall have the power to enforce, by appropriate legislation, the provisions of this article.” To date, the failure to recognize the full scope of the original meaning of Section 1 has constrained Congress’ remedial powers, limited as they are to “congruent and proportional” initiatives. That will change once Section 1 is imbued with its original meaning.
In a sense, the authors’ reticence about the potential seismic effects of their program is understandable. As distinguished historian James Oakes observes in the book’s Foreword, The Original Meaning of the Fourteenth Amendment is “unabashedly designed to persuade the Court to reconsider some longstanding constitutional assumptions about the Fourteenth Amendment.” That goal might be undercut—at least in the near term—by frank admissions about the power of the ideas central to the book’s arguments.
This hesitation to own up to the potential magnitude of the consequences of a revised understanding of the original meaning of Sections 1 and 5 means that the authors undersell the importance of their own work. Pressed for an explanation as to why it is worth the trouble to revamp constitutional law along the lines they recommend, Barnett and Bernick invoke concerns about legitimacy, both sociological and moral, in the conclusion. They argue that grounding decisions in doctrines with shaky pedigrees might erode the Supreme Court’s public standing and that willful, sustained violations of “interpretive fidelity” impose costs “beyond depriving us of the Fourteenth Amendment in full.”
These concerns about legitimacy, while well-founded, are inescapably speculative, and as such are weak justifications for a major upheaval of the constitutional landscape. In truth, though, The Original Meaning of the Fourteenth Amendment does succeed in making a strong case for the transmuted understanding of Sections 1 and 5 it advocates. That case, however, rests on the capacity of the United States Constitution, properly understood and put into effect, to forge a better nation. The “big departures” from current doctrine that Barnett and Bernick flag—more stringent judicial oversight for state interferences with economic liberty, recognition of state duties to protect us from private violence, a new role for Congress in vindicating the Fourteenth Amendment’s purpose—all have the potential to move us closer to the aspirations set out in the Constitution’s Preamble and the Declaration of Independence. That the changes The Original Meaning of the Fourteenth Amendment could foment are radical ones is a strength, not a shortcoming, of this book. After all, the United States of America was originally founded by radicals—and then, less than a century later, founded again by a second set of radicals. In providing a solid framework for far-reaching improvement, Barnett and Bernick are in excellent company.