Oliver Wendell Holmes was wounded three times on the battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence.
Sensing that the constitutional foundation for his book is crumbling beneath him, Damon Root takes to his blog a second time and tries once more to rehabilitate his arguments about the Fourteenth Amendment by . . . not talking about the Fourteenth Amendment.
Instead, Root wants to talk about the Civil Rights Act of 1866. This allows him to ignore the mountain of evidence contradicting his book’s central constitutional claim that the Privileges or Immunities Clause of the Fourteenth Amendment transformed the equal rights of the Comity Clause into absolute unenumerated economic rights. Unfortunately, Root now adds an additional layer of historical error by mischaracterizing the Civil Rights Act (as other historians have noticed).
Thankfully, his error is easily corrected.
Because Root continues to ignore the actual historical evidence about the Fourteenth Amendment that I’ve presented in my book and in prior posts, there is little need for an extended response. This most recent effort, for example, quotes a speech by Representative John Bingham (R-OH) but ignores a portion of the same speech that expressly contradicts Root’s reading of the Privileges or Immunities Clause. This is anything but a serious effort to engage the historical record relating to the Fourteenth Amendment.
So, for now, let’s just talk about the Civil Rights Act of 1866. Root claims the following:
The framers of the Civil Rights Act understood their legislation to serve a dual function, one that (A) protected fundamental rights from state abuse, and (B) required the states to guarantee equal treatment under the law to all citizens.
Root wants his readers to believe that the Civil Rights Act of 1866 somehow bestowed absolute protection on a set of fundamental unenumerated economic rights as well as providing equal protection. He then asserts that the “dual” protections of the Act also inform the meaning of the Fourteenth Amendment (without telling us how or which part).
In my earlier posts, I argued that the Civil Rights Act provides no more than equal protection for a limited set of locally defined rights, including locally defined economic rights. Root thinks this is a ridiculous proposition. As he puts it,
According to Lash, if a local government passed a law forbidding both blacks and whites from exercising their right to contract, such a law would be perfectly acceptable because it would not violate Lash’s equality-only reading of the Civil Rights Act. But that result would be absurd and the framers of the Civil Rights Act intended no such absurdity.
I can’t say whether such a limitation is absurd. I can say this is exactly how advocates understood the proposed Civil Right Act. According to Illinois Senator Lyman Trumbull—a source Root himself relies upon:
The bill neither confers nor abridges the rights of anyone, but simply declares that in civil rights there shall be an equality among all classes of citizens, and that all alike shall be subject to the same punishment. Each State, so that it does not abridge the great fundamental rights belonging, under the Constitution, to all citizens, may grant or withhold such civil rights as it pleases; all that is required is that, in this respect, its laws shall be impartial. [Emphasis added]
The meaning that Root finds “absurd” is the meaning expressly insisted upon by Trumbull in his effort to secure final passage of the Act. But perhaps this was just the view of advocates in the Senate. Let’s hear then from the House of Representatives. According to Representative Samuel Shellabarger (R-OH):
Mr. Speaker, if this section did in fact assume to confer or define or regulate these civil rights, which are named by the words contract, sue, testify, inherit, &c., then it would, as seems to me, be an assumption of the reserved rights of the States and of the people. But, sir, except so far as it confers citizenship, it neither confers nor defines nor regulates any right whatever. Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery. . . .
Self evidently this is the whole effect of this first section. It secures—not to all citizens, but to all races as races who are citizens—equality of protection in those enumerated civil rights which the states may deem proper to confer on any races.
There is much more, and I won’t belabor the issue. Root is just wrong about the Civil Rights Act. Without the Act, he has no evidence whatsoever in support of his claim that the Privileges or Immunities Clause protects unenumerated substantive economic rights. And without that evidence, the arguments in his book lack a persuasive constitutional foundation. At least not if we take seriously the original meaning of the Fourteenth Amendment.
All of this may seem like piling on—and unfairly so, since Root is a journalist and not a Reconstruction scholar. Root’s historical arguments, however, are the same arguments regularly put forward by libertarian constitutionalists. For that reason, I thought it important to address them on the same ground upon which they are advanced: as claims about the original meaning of the Fourteenth Amendment.
As most readers of this blog already know, there continues to be a lively scholarly debate about the original meaning of the Privileges or Immunities Clause. Indeed there probably should be a lively debate about the relationship between the Civil Rights Act and the Fourteenth Amendment. Scholars like Chris Green, Randy Barnett, Earl Maltz, William Nelson, Michael Kent Curtis, and Michael Les Benedict have all produced extraordinary books grappling with the extensive historical materials relating to the adoption and early understanding of the Fourteenth Amendment. All such serious scholarly debate is helpful in furthering our understanding of the historical record.
I close then by hoping that, in future work, Root joins the debate.