Like Mark Pulliam, I think a lot about Robert Bork: anyone who teaches either antitrust law or constitutional law should, and I teach both. He was great scholar. In particular, he powerfully challenged the conventional views of living constitutionalism that dominated his time and begin to make the intellectual case for originalism. But it was only the beginning of the case and does not mark the best understanding of originalism today.
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.)