Liz Cheney created a situation where her congressional colleagues were either with her—and the Constitution—or against them both.
The Fourteenth Amendment is one of the hardest provisions in the Constitution to get right. Sometimes there seem be as many theories of the provision as there are theorists. I admire their persistence. While I am not an expert in the all the intricacies of the Amendment myself, I do think it very probable that it protects economic liberty at least from discriminatory and arbitrary interference. Thus, its original meaning offers support for recent courts that have invalidated irrational licensing schemes.
For me, three reasons combine to present a persuasive case that the Fourteenth Amendment protects economic liberty. First, there seems little doubt that the Fourteenth Amendment was ratified in part to permit federal protection of economic rights. Before ratification, there had been constitutional doubts about the Civil Rights of 1866 which was aimed at preventing discrimination against African Americans in their exercise of economic rights like the right to contract. That background suggests that either the Privileges or Immunities Clause, or the Due Process Clause, neither of which by their terms are limited to racial discrimination, must cover economic rights. (For reasons elaborated by Chris Green and John Harrison, I tend to think that the historical meaning of equal protection did not provide a general basis for preventing discrimination in the decision about what laws to adopt).
Second, this interpretation of the Fourteenth Amendment also makes it comport with an important part of the ideology of Republican party—free labor. Thus, understanding the Fourteenth Amendment as protecting economic liberty also has the advantage of making it flow from the central tenets of the political party that was responsible for entrenching that clause in the Constitution. These first two reasons are particularly powerful in combination: the inclusion of economics liberties within the Amendment’s scope gives it an expected legal effect that would also have resonated with popular popular political commitments.
Third, an interpretation that the Amendment covered economic liberties was adopted in a judicial opinion shortly after its ratification. In the Slaughterhouse Cases, Justice Stephen Fields argues that Clause of the Amendment that forbids states from abridging Privileges or Immunities of their own citizens was meant to track the scope of the similarly worded clause Article IV that forbids states from discriminating against out-of-staters and in particular its inclusion of right to pursue an occupation. His is a powerful interpretation of public meaning originalism, because it embeds the understanding of the Privileges or Immunities Clause of 14th Amendment in the context of the original Constitution, showing how one clause builds on the other.
It is true that his interpretation was contained in the principal dissenting opinion in the case. But it was joined by three other justices. And the alternative interpretation put forward by the Justice Samuel Miller for the narrow majority was not as plausible. Its principal argument against the position that Privileges or Immunities Clause protected such liberties was to argue that it protected a different set of privilege and immunities, namely those that inhered in national as opposed to state citizenship. But the textual basis of the argument—that the phrase “of the United States” placed after “Privileges or Immunities” distinguished the 14th Amendment rights from the “Privileges and Immunities of the citizens in the several states”—is hardly compelling. The words in the genitive case may have instead signified that these rights were enjoyed by all citizens of the United States rather than were a different set of rights.
And resolving any ambiguity in the phrase “Privileges or Immunities of the United States” in the manner of the majority created three problems. First, it opened up a chasm between the rights of the state citizenship and federal citizenship, when in the words of John Harrison the Fourteenth Amendment “stapled these citizenships together.” Second, Miller appeared to so narrow the meaning of the Privileges or Immunities clause as to make the import of the Clause almost trivial, focusing on such rights as the right to ply the navigable waters of the United States. Third, in emphasizing that the rights were those that inhered in national citizenship, the opinion raised the question of why the clause was necessary at all, because national privileges and immunities should have been protected against state abridgement by the Supremacy Clause.
To be sure, there are substantial arguments that clauses in the 14th Amendment other than the Privileges or Immunities Clause are more directly responsible for protecting economic rights and natural rights to liberty. But nevertheless, it counts in favor of including economic rights within the 14th Amendment that this conclusion follows from the most closely reasoned contemporary judicial explication of the public meaning of its text. Happily, this case also offers a plausible standard of judicial review of these liberties. Even the two judges in Slaughterhouse, who believed that the Due Process Clause as well as the Privileges or Immunities Clause protected economic liberties, concurred in the standard. It is to that standard which I will turn in a subsequent post.