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