Wishful thinking by conservative scholars opposed to abortion is an activist impulse that must be resisted.
Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.
Root’s basic argument is that the Fourteenth Amendment’s Privileges or Immunities Clause, like the Comity Clause of Article IV, protects unenumerated economic rights. The only difference is that the Privileges or Immunities Clause transforms the equally protected state-secured rights of the Comity Clause into absolute substantive rights. Thus, the Supreme Court wrongly rejected unenumerated substantive economic rights in The Slaughterhouse Cases (1873) and in later New Deal decisions like Carolene Products (1938).
In my review, I pointed to a large body of historical evidence suggesting that Root is wrong about the original understanding of the Privileges or Immunities Clause. The Clause refers to the rights of citizens of the United States, not the rights of citizens in the several states as it says in the Comity Clause. Where the latter refers to state-secured rights, the former refers to constitutionally enumerated rights. The man who drafted the Privileges or Immunities Clause expressly distinguished his handiwork from the Comity Clause and insisted that his efforts were aimed at requiring the states to respect the enumerated rights of the federal Constitution, especially those listed in the Bill of Rights. As a matter of original meaning, the treaty-based language Representative John Bingham (R-OH) chose had long been understood as pointing to federally enumerated rights.
Moderate Republicans like Bingham would not have supported, much less offered, an amendment authorizing national control of the substance of civil rights in the states (economic or otherwise). Instead, taking a middle position between Radical and conservative Republicans, moderates embraced a clause that required the states to respect the constitutionally enumerated privileges or immunities of American citizens. This left the substance of all unenumerated subjects under the control of the people in the states, subject only to the requirements of due process and equal protection.
“Nonsense,” Root responds. Of course the Fourteenth Amendment protects unenumerated substantive economic rights. After all, the same Congress that passed the Fourteenth Amendment also passed the Civil Rights Act of 1866. Generally viewed as a precursor to the Fourteenth Amendment, the Civil Rights Act required states to equally enforce state laws relating to property and contract. Moreover, Republicans like John Bingham often spoke about the need to protect freedmen from discriminatory labor and economic laws. Therefore, it is absurd for Lash to claim “that state and local officials . . . should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.”
That would indeed be an absurd claim. Thankfully, I did not make it. The issue is not whether the Civil Rights Act and the Fourteenth Amendment protect unenumerated economic rights. The issue is how these provisions protect unenumerated economic rights. Once we focus on that matter, Root’s objections dissolve like tissue paper in the rain.
Republicans, for example, could have authorized the federal government (whether Congress or the federal courts) to control the substance of local economic freedom. This was the initial choice of the Radical Republicans. A different approach would allow local majorities to control the substance of local economic regulation, but require the equal enforcement of those laws, regardless of race. The latter was the approach of the moderates, and they carried the day.
In his response, Root ignores the difference between substantive rights and equal protection. For example, although he quotes some of the Civil Rights Act of 1866, he leaves out the most important part. He quotes the Act’s declaration that citizens have the same right “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.” But Root omits the final part of the sentence “. . . as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.”
This is a guarantee of equal protection, not substantive right. The Civil Rights Act granted citizens the same state-secured property and contract rights “as is enjoyed by white citizens.” Far from controlling the substance of state economic regulation, the Act left in place all state-imposed non-discriminatory “punishments, pains and penalties” on matters relating to labor, contract, and property. Here, for example, is Trumbull defending the final language of the Civil Rights Act:
“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.”
So yes, economic rights were protected—equally. But, no, they were not protected absolutely in the manner proposed by Root and the libertarians.
Despite Root’s studied indifference to the fact, moderate Republicans successfully demanded the removal of the term “civil rights” from the Civil Rights Act. Moderates insisted the Act’s language be changed in order to avoid precisely the kind of assumed national authority over civil rights that Root and the libertarians now try to read into the Act and the Fourteenth Amendment. The change ensured that the text pointed directly, and solely, at the problem of discrimination. This not only highlights their central purpose, it shows how careful moderates were to avoid language they understood to have open-ended meaning.
Like other moderate Republicans, John Bingham believed that all persons should enjoy the natural right of equal protection of the laws—including equal protection of local economic law. However, Bingham refused to support the Civil Rights Act because: 1) he believed Congress needed an amendment granting them power to pass such an act, and 2) he believed that all persons should enjoy the equal protection of the law, not just citizens. Bingham’s final draft of the Fourteenth Amendment fixed both problems by including an equal protection clause that protected all persons.
In short, Root is right to say that unenumerated economic rights are protected by the Civil Rights Act and the Fourteenth Amendment. I never claimed otherwise. Root is wrong, however, about how Congress chose to protect economic liberty. Neither the Act nor the Amendment requires states to protect substantive unenumerated economic rights. Instead, the Act and the Equal Protection Clause require nothing more than non-discriminatory local economic policy.
Which brings us (back) to the Privileges or Immunities Clause. As I explained in my review, Root believes that the Privileges or Immunities Clause is actually based on the Comity Clause, and that the Comity Clause was properly interpreted by Justice Bushrod Washington in the antebellum case Corfield v. Coryell (1823). Because Corfield read the Comity Clause as protecting unenumerated “fundamental” rights, Root insists that we should read the Fourteenth Amendment’s Privileges or Immunities Clause as also protecting unenumerated substantive economic rights.
Root is not wrong, he’s just confused. As Justice Washington explained in Corfield, the Comity Clause of Article IV required states to grant visiting citizens equal access to a limited set of state-secured rights. Visiting citizens could not expect equal treatment on all matters, only those so “fundamental” that denying visitors equal access would unduly strain the bonds of friendship between the states. According to Corfield, the Comity Clause does not protect substantive unenumerated economic rights. It merely provides the right of equal protection for a limited set of local privileges and immunities.
As a constitutionally enumerated right, the Comity Clause stands as one of the Privileges or Immunities of citizens of the United States protected against state abridgment by the Fourteenth Amendment. Therefore, it is not surprising that Senator Jacob Howard (R-MI) included the Comity Clause in his description of Fourteenth Amendment “Privileges or Immunities.” This was one of many constitutionally enumerated rights now protected against state abridgment and subject to Congress’ new enforcement powers.
In other words, if it is an enumerated right, it is one of the privileges or immunities of citizens of the United States. The proposal was as simple as it was profound.
Libertarians, however, resist this simple proposition. They insist that the equally protected subjects of the Comity Clause somehow became transformed into absolute economic rights with the adoption of the Fourteenth Amendment. There is not a shred of evidence that this “transformation occurred” and Root presents none in his response (or in his book).
So Root is right to insist that the Fourteenth Amendment protects unenumerated economic rights. He’s just wrong about how it does so, and his error is fatal to the entire libertarian project. Unenumerated economic rights are not substantive national privileges or immunities. Determining the substance of unenumerated rights is left to the people in the states as part of the people’s retained right to local self-government.
But what about the Due Process Clause? Even if libertarians are wrong about the Privileges or Immunities Clause, perhaps the Supreme Court was right to develop the doctrine of substantive due process. This is the proposition of Evan Bernick, whose recent essay at the Huffington Post also takes issue with my review of Root’s book.
My review did not address the Due Process Clause because not even Damon Root had the courage to try and resuscitate this broadly mocked doctrine. That Mr. Bernick now tries to do so provides a telling illustration of the failure of libertarian constitutionalism.
For decades, libertarians have insisted that the Supreme Court has wrongly relied on the Due Process Clause and should instead turn its attention to the Privileges or Immunities Clause. The culmination of this effort was Alan Gura’s failed attempt in 2010 to convince the Court to embrace a libertarian reading of the Privileges or Immunities Clause in McDonald v. Chicago.
Perhaps now, in the face of overwhelming evidence that the Privileges or Immunities Clause does not say what they want it to say, libertarians will embrace their inner Emily Litella, say “never mind,” and quietly return to Substantive Due Process.
Perhaps that would be best. They will find no solace in the original meaning of the Privileges or Immunities Clause.