The 14th Amendment and Deference to Congress

I found the posts by Joshua Hawley, John Harrison and Kurt Lash on Congress’s authority to interpret the 14th Amendment to be of interest. My view has long been inclined towards the view that Congress is not owed deference as to its interpretation of the meaning of Section One of the Amendment.  I do agree, however, that Congress may be owed deference as to whether the means it uses to implement section are appropriate under section five. But my understanding is that Hawley believes that Congress should receive deference as to both issues.

While I am therefore sympathetic with the criticisms by Harrison and Lash, I do feel the obligation to note one argument in favor of conferring deference on Congress as to the meaning of Section One.  It has been argued that the Framers’ generation believed that Congress was entitled to deference when interpreting the Constitution.  If that were true, and if that view continued to be held when the 14th Amendment was enacted, then one could argue that Congress also was entitled to deference as to its interpretation of Section One.

I should say  that I am skeptical about the possibility that the Congress enjoyed deference as to it’s interpretation of the Constitution at the time of the Constitution’s enactment.  But I do acknowledge that there is some evidence that would support that  view.


FRIEDRICH VON HAYEK 1981 Austrian economics and political philosopher in Gothenburg

Was Hayek an Originalist?

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.