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April 9, 2019|Fourteenth Amendment, New Originalism, Originalism, Privileges or Immunities Clause, Raoul Berger, Robert Bork, Slaughter-House Cases

Still Searching for the Judicial “Holy Grail”

by Mark Pulliam|

shutterstock.com
The eternal quest for the missing constitutional clause that will provide the answers the academy wants.

April 1, 2019|Originalism, Privileges or Immunities Clause, Slaughterhouse Cases

The Unbearable Wrongness of Slaughterhouse

by Mike Rappaport|

shutterstock.com
The Slaughterhouse Cases were wrong – seriously and grieviously wrong.

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.

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.

March 19, 2019|judicial activism, Mark Pulliam, Originalism, Privileges or Immunities Clause, the Old Originalism, the Slaughterhouse Cases

Mark Pulliam and the Old Originalism

by Mike Rappaport|

Preamble to the Constitution (Jack R. Perry Photography/Shutterstock.com)
Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.

September 14, 2018|14th Amendment, 9th Amendment, Hayek, Originalism, Privileges or Immunities Clause, William Pryor

Was Hayek an Originalist?

by Mike Rappaport|

Friedrich Hayek in Gothenburg, Sweden 1981 (Roger Tillberg / Alamy Stock Photo).
Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.

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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September 21, 2016|14th Amendment, commercial republic, Founding, Free Speech, gag rule, Michael Kent Curtis, Privileges or Immunities Clause, Stephen Field

The Continuity of the Fourteenth Amendment with the Founding

by John O. McGinnis|

At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.

In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty.  The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.

For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers.  They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery.  As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.

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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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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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