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March 28, 2019|Bushrod Washington, Citizenship, Devin Watkins, Incorporation, Jacob Howard, John Bingham, Kurt Lash, Privileges or Immunities Clause, Washington v. Glucksberg

The Fundamental Rights of American Citizenship: Neither “Natural” nor Constitutionally “Enumerated”

by David Upham|

Image: Charles Brutlag / Shutterstock.com
To qualify as a “privilege” or “immunity” of U.S. citizenship, the right must be both fundamental to citizenship and have a long history.

March 26, 2019|Constitution, Kurt Lash, Originalism, Privileges or Immunities Clause, unenumerated rights

The Unenumerated Rights of the Privileges or Immunities Clause

by Devin Watkins|

Draft of the 14th Amendment to the Constitution (Everett Historical/Shutterstock.com)
Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.

December 22, 2015|Kurt Lash, Originalism, Privileges or Immunities Clause

Lash on the Fourteenth Amendment

by Mike Rappaport|

In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause.

One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written several articles on the Amendment that culminated in the publication of a book. On this site, Kurt has written several posts defending his interpretation of the Amendment. Kurt defends a view that I used to hold, but no longer do: that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States. Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation. (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)

Adequate theories of the original meaning of the 14th Amendment must do several things. Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional. 

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October 6, 2014|Andrew Johnson, Corfield v. Coryell, Fourteenth Amendment, Kurt Lash, McDonald v. City of Chicago, Privileges or Immunities Clause, Slaughter-House Cases

Citizenship Has Its Privileges

by David Upham|

The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was. Partly because of this scholarly discord, the Supreme Court has resisted efforts to revive the Clause. Most notably, four years ago, in McDonald v. City of Chicago, the petitioners asked the Court to invalidate Chicago’s comprehensive ban…

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May 27, 2014|Andrew Johnson, Kurt Lash, Privileges or Immunities

More on Kurt Lash’s Theory of the Privileges or Immunities Clause and the New Orleans Riot

by Mike Rappaport|

Recently, I blogged about Kurt Lash’s own blogging about his new book on the 14th Amendment. I wrote:

Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory).

Kurt wrote to me to clarify that in his view:

the Privileges or Immunities Clause protects all constitutionally enumerated personal rights, such as those listed in the Bill of Rights. It includes, for example, the equal protection rights of the Comity Clause as well as the enumerated right to habeas corpus.

Kurt is, of course, correct about his position, and I am happy to clarify his position.

That said, my claim that that Kurt’s interpretation “does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory)” is true. And while the other enumerated rights under the Comity and Habeas Clauses are important, as a matter of modern controversies it is here where the disagreements principally lie.

(I should note that the “equal protection rights of the Comity Clause” – if I understand Kurt’s position – forbid discrimination against out of state citizens, but do not provide general protection against racial or other similar forms of discrimination.)

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May 10, 2014|14th Amendment, Andrew Johnson, Kurt Lash

Andrew Johnson and the New Orleans Riot

by Mike Rappaport|

Over at the Volokh Conspiracy, Kurt Lash has been guest blogging his new book on the Privileges or Immunities Clause of the 14th Amendment. Kurt has brought forward a host of new materials and arguments that are of significant interest. Kurt argues that the Privileges or Immunities Clause merely incorporates the Bill of Rights; it does not protect equality as to state privileges or immunities (as in John Harrison’s theory) or substantive rights as to state and natural law privileges or immunities (as in Randy Barnett’s theory). While I have some questions about Kurt’s theory, it is nonetheless of significant interest. Today,…

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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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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.
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