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Fighting Federalism: Damon Root’s Overruled (Part One)

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum.

Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call for a more limited interpretation of national power. Libertarians also call for a more limited view of state power, and this aligns them with liberal (or “Progressive”) constitutionalists.

This makes the life of a legal libertarian quite complicated; one moment fighting alongside liberals in support of gay marriage and the right to abortion, the next moment fighting alongside conservatives to strike down gun laws and the forced purchase of private health insurance.

But a complicated life can be an interesting life. Root takes the reader on a lively ride through the history of libertarian lawyers and their struggle, as the book’s title puts it, to “control” the Supreme Court. As one might expect, this is not a serious investigation of either the Constitution or contemporary legal theory. It is, rather, a sort of biography of the current libertarian movement and its legal heroes. Readers will meet the legal movement’s intellectual grandfather, Supreme Court Justice Stephen Field, modern libertarian luminaries like William H. “Chip” Mellor, Roger Pilon, Clint Bolick and Randy Barnett, and they will learn about the establishment of major libertarian organizations like the Cato Institute and the Institute for Justice.

It’s pure hagiography to be sure, but valuable nevertheless to anyone seeking the legal and intellectual roots of what has become a major constitutional movement—one represented by serious contenders for the presidency of the United States.

Heroic stories need a bad guy for the hero to struggle against and overcome. Root supplies two. The first is the New Deal Supreme Court and its creation of the doctrine of “judicial deference” in matters involving commercial and economic regulation. The central goal of the libertarian fight for “control” of the Supreme Court is judicial protection of what libertarians believe is the fundamental right to economic freedom. Accomplishing this requires overruling the Supreme Court’s 19th century decision in The Slaughterhouse Cases (1873) and ratcheting up the modern Court’s application of deferential “rational basis review” in cases involving the right to pursue a trade. Much of Root’s book involves describing the libertarian long game in trying to achieve these results.

The second and somewhat surprising bad guy in Root’s book is constitutional federalism. This traditional theory of divided government power has long thwarted libertarian efforts to expand the protections of the Fourteenth Amendment and force states to recognize a fundamental right to economic freedom. Throughout the book, Root characterizes federalist resistance to the libertarian agenda as driven by misguided conservative theories of judicial deference or a “Bible-thumping” fear of freedom.

Root’s characterizations of federalist constitutionalism, and his critique of it, are forced and not particularly convincing. As the Supreme Court has repeatedly explained, federalism, like libertarianism, is a theory of individual freedom. Federal power is limited not only because the best reading of the Constitution requires such limits, but also because these limits preserve the people’s retained right to local self-government. Federalism is neither a “conservative” theory (it would support California’s legalization of medicinal marijuana) nor a theory of judicial deference (see the second half of the 2012 decision in NFIB v. Sebelius). And rather than thwarting the major goals of libertarians, federalists have regularly fought alongside them in the effort to preserve areas of individual autonomy.

Indeed, a proponent of federalist constitutionalism could write a book very similar to this one, complete with deep historical sources such as the Federalist Papers, constitutional text (the Ninth, Tenth and Eleventh Amendments), influential contemporary organizations (the Federalist Society), lawyer-heroes (Steven Calabresi, Paul Clement), and recent judicial victories (in addition to Lopez and Morrison, see New York v. United States, and again, the second half of NFIB v. Sebelius).

Any such book, of course, would be anathema to Root. Overruled is devoted to challenging not only the expansion of federal power by judicial Progressives, but also to challenging the theory of state autonomy and the rights of local self-government. Federalism stands in the way of the libertarian ideal of national economic freedom by insisting that local economic policies be reserved to the people in the several states. Accordingly, despite their making common cause against unduly expansive theories of national power, libertarianism and federalism seem doomed to a death struggle. As J.K. Rowling might write, either must die at the hand of the other for neither can live while the other survives.

The problem for Root is that, of the two, federalism has the more persuasive constitutional pedigree. To begin with, few if any historians deny that the original Constitution set up a federalist divide of state and national power. Whatever the role of natural rights in the Declaration of Independence and state constitutions, federal courts lacked any authority to tell the states how to go about enacting or enforcing civil rights. This is why the Bill of Rights originally bound only the federal government. Speech, religion, assembly, and every other matter not textually delegated away from the states remained under the democratic control of the people in the several states. This was true before the first Congress added the Bill of Rights, and it was doubly true after the addition of the Ninth and Tenth Amendments.

But didn’t matters change in 1868? Like other libertarian theorists, Root tries to argue that the framers of the Fourteenth Amendment intended the Privileges or Immunities Clause to nationalize an undefined set of natural or fundamental rights—rights enforceable against both national and state governments. According to Root, the Supreme Court erred when it failed to embrace this interpretation in The Slaughterhouse Cases and erred again in the 1930s when the New Deal Court rejected Lochnerian libertarianism.

The author is wrong, though, about the framers of the Fourteenth Amendment, and about the original meaning of its Privileges or Immunities Clause. That particular clause restored and strengthened what moderate Republicans believed was the proper federalist balance of national and state authority—a balance betrayed by the slave-holding Southern states.

The members of the Thirty-Ninth Congress who proposed, drafted, and deliberated upon the Fourteenth Amendment held varying views of national power and the value of constitutional federalism. Conservatives wanted immediate readmission of the states of the former Confederacy with no serious alterations in state autonomy beyond the abolition of slavery. Radical Republicans, on the other hand, rejected federalism and pressed for congressional control of every aspect of social life in the South. Finally, moderate Republicans continued to believe in constitutional federalism, but they insisted on an amendment forcing Southern governments to grant all persons the natural rights of due process and equal protection, and to guarantee to all American citizens their constitutionally enumerated rights.

Of these three positions, the moderates had the votes and they controlled the final decisions of the Thirty-Ninth Congress.

One such moderate was Representative John Bingham (R-Ohio), the author of Section One of the Fourteenth Amendment. As he repeatedly reminded his colleagues, Bingham believed that the biggest problem with the pre-Civil War Constitution was its failure to expressly require the states to enforce the federal Bill of Rights (followed closely by its failure to grant Congress the power to ensure that the states did so). Neither Bingham nor the majority in Congress wished to nationalize unenumerated civil rights in the states.

In fact, Bingham and the moderates successfully forced Radical Republicans to remove the term “civil rights” from the proposed Civil Rights Act of 1866 in order to avoid even the implication that Congress had, or ought to have, authority over the innumerable subjects of common law rights.

Bingham did not support the Civil Rights Act of 1866 and its demand that citizens receive equal rights to contract and purchase property regardless of race. This was not because Bingham opposed such equality—indeed, he was deeply devoted to the principle. Instead, Bingham believed the Act to be at once overly broad and unduly narrow. It was overly broad because Congress lacked the constitutional power to regulate such matters in the states, and it was not broad enough because Bingham believed that all persons, not just citizens, should enjoy the natural right to due process and equal enforcement of the laws.

Bingham rectified both problems by adding the Due Process and Equal Protection Clauses to the Fourteenth Amendment—clauses that protected all persons, not just citizens. Neither he nor anyone else, however, understood either clause as referring to an undefined set of unenumerated rights. None of the moderates would have supported, much less proposed, language that could even remotely be construed in such a manner. (See, again, the moderates’ removal of “civil rights” from the Civil Rights Act).

Which brings us to the Privileges or Immunities Clause. Following the approach of other libertarian writers, Root argues that this clause both echoes and transforms the “privileges and immunities” protected under Article IV of the federal Constitution. Article IV’s so-called “Comity Clause” 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.

Basically, if State One allowed its citizens to sell shoes, then a visitor from State Two must also be allowed to sell shoes. Of course, if State One does not allow its citizens to sell shoes, then neither may a visitor from State Two. The Comity Clause provided the rights of equal treatment, not the absolute right to pursue a trade regardless of state law.

Libertarian constitutionalists, including Damon Root, believe that the rights afforded equal protection under Article IV’s Comity Clause became absolute substantive rights with the adoption of the Fourteenth Amendment’s Privileges or Immunities Clause. It is this transformation that underlies all libertarian claims that states are constitutionally bound to protect unenumerated fundamental rights.

The arguments in support of this claim, however, cannot withstand historical investigation—and I will detail why in Part Two of this discussion.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 09, 2015 at 08:51:21 am

[…] Fighting Federalism: Damon Root’s Overruled (Part One) […]

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Image of School Finance Farce: Part I - Freedom's Floodgates
School Finance Farce: Part I - Freedom's Floodgates
on July 09, 2015 at 09:36:55 am

Interesting; a somewhat different take on this may be had below in which the author contends that Bingham intended somewhat more than argued above. Who / what to believe?

http://www.constitution.org/lrev/aynes_14th.htm

I await the next .

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Image of gabe
gabe
on July 09, 2015 at 16:34:02 pm

You keep saying these "natural right to due process and equal enforcement of the laws." Do you not understand natural rights at all? Natural rights pre-exist government, they are the rights "retained by the people" in the 9th amendment (and you cant retain something that did not exist before government). The rights to life, liberty, and to acquire and possess property are natural rights. Due process, although it can protect the natural rights to life, liberty and property, is not itself a natural right. Nor is equal enforcement of the laws. Laws come after government not before.

Now the term "privileges or immunities" is a bit more expansive then just the natural rights. The immunities are the natural rights that are protected, but the privileges are those positive rights granted. In short though, you could say that the "privileges or immunities of citizens of the United States" are all those rights protected by the constitution (both natural and positive). This includes all natural rights protected in the 9th amendment, and positive rights like the right to assistance of counsel. Corfield v. Coryell does a great job of describing the Privileges and Immunities Clause (although this deals with the positive rights granted by states, unlike the Privileges or Immunities Clause which deals with the natural rights and those positive rights granted by the US constitution):

Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state

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Image of Devin Watkins
Devin Watkins
on July 13, 2015 at 16:31:51 pm

[…] explanation 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 […]

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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
on July 14, 2015 at 01:32:11 am

[…] explanation 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 the latter […]

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Image of Yes, The Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash | Official Web News
Yes, The Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash | Official Web News
on July 14, 2015 at 03:02:31 am

[…] conservative law professor Kurt Lash of the University of Illinois has published a lengthy, two–part negative review of my recent book Overruled: The Long War for Control of the U.S. […]

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Image of Yes, the 14th Amendment Protects Economic Liberty | Michigan Standard
Yes, the 14th Amendment Protects Economic Liberty | Michigan Standard
on July 15, 2015 at 09:22:29 am

[…] Fighting Federalism: Damon Root’s Overruled (Part One) […]

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Image of Root Digs a Deeper Hole: The Equal Protection of Economic Privileges and Immunities - Freedom's Floodgates
Root Digs a Deeper Hole: The Equal Protection of Economic Privileges and Immunities - Freedom's Floodgates
on July 17, 2015 at 13:05:42 pm

It is useful to do the research to identify as many of the unenumerated immunities (what the Constitution calls "rights") as one can, and distinguish them from "privileges" created by law, including the law of the Constitution. See http://constitutionalism.blogspot.com/2012/07/list-of-constitutional-rights.html

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Image of Jon Roland
Jon Roland
on July 20, 2015 at 15:58:35 pm

[…] unlimited authority? In a recent essay in response to Professor Kurt Lash’s critical two-part review of Damon Root’s book, Overruled, I argued that the Privileges or Immunities and […]

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Image of Do We Have An Amoral Constitution? A Second Reply to Kurt Lash - LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives
Do We Have An Amoral Constitution? A Second Reply to Kurt Lash - LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives
on July 20, 2015 at 16:13:30 pm

[…] unlimited authority? In a recent essay in response to Professor Kurt Lash’s critical two–part review of Damon Root’s book, Overruled, I argued that the Privileges or Immunities […]

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Image of Do We Have An Amoral Constitution? A Second Reply to Kurt Lash | News Agency
Do We Have An Amoral Constitution? A Second Reply to Kurt Lash | News Agency
on July 20, 2015 at 16:17:58 pm

[…] unlimited authority? In a recent essay in response to Professor Kurt Lash’s critical two–part review of Damon Root’s book, Overruled, I argued that the Privileges or Immunities […]

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Image of Do We Have An Amoral Constitution? A Second Reply to Kurt Lash | Information From World
Do We Have An Amoral Constitution? A Second Reply to Kurt Lash | Information From World
on March 15, 2016 at 03:41:18 am

[…] of Damon Root’s glorious 2014 book, Overruled—which Kurt Lash reviewed for Law and Liberty here and here, with later exchanges about it with Root—but sufficient it to contend that a courts […]

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Image of The Clashes of Values that Leviathan Foments | Health Adviser
The Clashes of Values that Leviathan Foments | Health Adviser

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.