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Kurt T. Lash Subscribe

Kurt T. Lash holds the E. Claiborne Robins Distinguished Chair in Law at the Richmond School of Law. He is the author of The Fourteenth Amendment: The Privileges and Immunities of American Citizenship.

March 21, 2019|Fourteenth Amendment, John Bingham, Ninth Amendment, Privileges or Immunities Clause, Slaughterhouse Cases, Tenth Amendment, unenumerated rights

The Privileges or Immunities Clause and Unenumerated Rights

by Kurt T. Lash|

Shutterstock.com
The majority in Slaughterhouse correctly rejected the idea that the Privileges or Immunities Clause protects unenumerated absolute rights.

April 20, 2017|Bill of Rights, Blaine Amendments, Fourteenth Amendment, Free Exercise of Religion, Originalism, Privileges or Immunities Clause, Trinity Lutheran Church v. Comer

Originalism and the Future of Religious Freedom

by Kurt T. Lash|

fourteenth amendment

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.

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December 11, 2015|Eric Foner, Gordon Wood, Jack Rakove, John McGinnis, Michael Rappaport, Originalism

Do Historians Understand Originalism?

by Kurt T. Lash|

I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree.

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July 21, 2015|Civil Rights Act of 1866, Equal Protection, Fourteenth Amendment, John Bingham, Lyman Trumbull, Privileges or Immunities Clause, unenumerated rights

Equality and the Civil Rights Act of 1866: A Final Response to Damon Root

by Kurt T. Lash|

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.

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July 15, 2015|Comity Clause, Corfield v. Coryell, Due Process Clause, Fourteenth Amendment, Overruled, Privileges or Immunities Clause, Substantive Due Process

Root Digs a Deeper Hole: The Equal Protection of Economic Privileges and Immunities

by Kurt T. Lash|

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.

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July 10, 2015|Damon Root, Fourteenth Amendment, Harlan Stone, John Bingham

A Tale of Two Clauses: Damon Root’s Overruled (Part Two)

by Kurt T. Lash|

Part One of my review of Overruled: The Long War for Control of the Supreme Court summarized Damon Root’s presentation of libertarian constitutionalism as an alternative to liberal Progressivism, and to what Root sees as excessively conservative federalism. Overruled takes particular aim at constitutional federalists as unjustifiably impeding the proper reading of the Constitution and the protection of unenumerated rights against state abridgment.

Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.

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July 9, 2015|Damon Root, Federalism, Fourteenth Amendment, judicial deference, Judicial Review, Libertarianism, Overruled, Privileges or Immunities Clause

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

by Kurt T. Lash|

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…

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June 24, 2015|Carolene Products, Equal Protection, Judicial Review, Justice Kennedy, Levels of Scrutiny, New Deal, Rational basis review, Strict Scrutiny

Building the Tiers of Judicial Review

by Kurt T. Lash|

 

 

In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”

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February 12, 2015|Fixation Thesis, Lawrence Solum, Original Method Originalism

Safe Harbor Originalism

by Kurt T. Lash|

safe harbor

Originalism’s success has resulted in a rapidly expanding body of scholarship by a richly diverse group of constitutional theorists, many of whom “tweak” the method in order to bring it within their preferred normative theory. This is the cost of success—everyone wants to play.

There are many ways to be an “originalist.” However, not all ways are originalist, and even those that are arguably originalist will not be equally accepted by practitioners of the method. If originalism is to maintain a degree of coherence as an interpretive option, its advocates are now pressed to define it, and to do so in a manner that distinguishes the method from its rivals while still leaving room for healthy exploration, disagreement, and development.

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October 8, 2014|Comity Clause, Fourteenth Amendment, John Bingham, Privileges or Immunities Clause, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship

The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham

by Kurt T. Lash|

My thanks to the Library of Law and Liberty for inviting me to respond to David Upham’s review of my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge U. Press 2014). Thanks also to Prof. Upham for taking the time to review the book and his gracious acknowledgement that it constitutes a step forward in our understanding of the Privileges or Immunities Clause. Unfortunately, in some of his more critical comments, it appears that Upham has misunderstood the theory of the book and (worse) missed much of the evidence presented in the book.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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