• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

January 14, 2016|Civil Rights Act of 1866, Free Labor Ideology, Republican Party, Slaughterhouse Cases

The 14th Amendment Protects Economic Liberties

by John O. McGinnis|

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.

Read More

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.

Read More

January 27, 2014|14th Amendment, Article IV, Civil Rights Act of 1866, Dred Scott, Due Process Clause, Equal Protection Clause, John Bingham, Privileges or Immunities Clause, Section 5 of the 14th Amendment, Slaughterhouse Cases

A New Birth of the Old Freedom

by David Upham|

The seven articles and twenty-seven amendments to our national Constitution contain roughly 8,000 words. Of those, perhaps none have generated so much intense controversy as the fifty-two words placed inconspicuously in the second sentence of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In this sentence’s three prohibitions—the Privileges or Immunities, Due Process, and…

Read More

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.

Read More

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.

Read More

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.

Read More

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.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

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

Read More

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.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

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

Read More

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.

Read More

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close