Getting Right with the Fourteenth Amendment: A Conversation with Kurt Lash

the 14th

Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment’s Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress.

Rather than emerging from the Comity Clause of Article IV, Section II, Clause 1, Lash argues that John Bingham and Jacob Howard, the two representatives who led congressional approval of the 14th Amendment, adjusted to criticism and pinned the Privileges or Immunities Clause on embodying the first 8 amendments and other enumerated rights of the Constitution. Nothing more was intended. In this way, these amendments were now barriers to state action. Rather than being a somewhat mysterious clause containing a seemingly limitless number of fundamental rights, Lash argues that the meaning of Privileges or Immunities is clear. As a result, incorporation of the first 8 amendments of the Bill of Rights, for the sake of political morality, correct history, and constitutional meaning, should happen through the Privileges or Immunities Clause of the 14th Amendment.

Friday Roundup, January 24th

  • How should contemporary defenders of limited government and the rule of law understand and learn from the New Deal’s revolutionary movement? The current Liberty Law Talk with Gordon Lloyd, co-author with David Davenport of The New Deal & Modern American Conservatism, discusses this question.

 In 1879 . . . he published his essay “Cabinet Government in the United States,” in the International Review. Clearly influenced by his reading of Bagehot, he denounced the inefficiency of the present government by “irresponsible committees” from a “legislature which legislates with no real discussion of its business.” As Wilson saw it, the separation of powers was an obstacle to good government, rather than a guarantor of the independence of its various branches: “To the methods of representative government which have sprung from these provisions of the Constitution, by which the Convention thought so carefully to guard and limit the powers of the legislature, “he wrote, “we must look for an explanation, in a large measure, of the evils over which we now find ourselves lamenting.”

Friday Roundup, January 10th

Brandon’s description of marriage and family life reflects a notable narrowing of what “constitutional” means. The original constitutional vision reflected a comprehensive system of how to sustain republican self-government in the long term. Government had its tasks, private institutions including the family had their tasks, and the proper functioning of each depended on the other. From the outset, non-hereditary government in a more fluid society required a less patriarchal family. Republican citizenship depended on a certain type of education, which, if the Founders were correct, would best be supplied by private nuclear families. Self-sufficient, independent, self-controlled, competent citizens were most likely to come from nuclear families. As long as this was the ideal of citizenship, governments were limited and families essential. There is a constitutional parallel between the city and the family—a family order sustained the constitutional order.

On July 10, 2012, the Consumer Product Safety Commission (CPSC) determined that Buckyballs and Buckycubes, executive office desk toys made for adults, were defective. The CPSC pressured retailers to stop selling these products, and on July 25, 2012, the CPSC’s staff brought an administrative action against Maxfield and Oberton Holdings LLC, the company that produced Buckyballs and Buckycubes, initiating a proceeding to order the company to stop selling all of its products and to conduct a total recall of all of its products already sold. On February 11, 2013, the CPSC amended its complaint to add Craig Zucker, the former General Manager of Maxfield and Oberton Holdings LLC, as a respondent, to hold him personally liable to conduct a CPSC-estimated $57 million recall of Buckyballs and Buckycubes. On November 12, 2013, Mr. Zucker fought back, claiming that the CPSC overreached by bringing an administrative remedial action against Maxfield and Oberton, a limited liability company, as well as him personally. Mr. Zucker challenges the CPSC’s personal jurisdiction over him, claiming he is neither a manufacturer nor a distributor of Buckyballs or Buckycubes and that, instead, the CPSC is exercising undelegated adjudicative authority over individual corporate officers.

Judicial Arrogance, and Ignorance, in Utah

There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.

The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”

That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.

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The Constitution is a Bill of Rights

My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.

“Did you read the Constitution in school?’

“Yeah.” Pause. “Well, we read the Bill of Rights.”

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The Miseducation of Danny Glover

In a January 17  speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”

This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question.  But I will give him credit for the try.  He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.

His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus.  First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.

Either way, his education is incomplete (as is true for all of us).  Mr. Glover’s mistake is to have taken one dubious thing and run with it.  That is almost always a mistake and especially so in the gun debate.  But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.

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Hadley Arkes’ response to Michael Ramsey’s review of Constitutional Illusions & Anchoring Truths

I’m quite grateful to Michael Ramsey for his engagement with the arguments in my book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.  I appreciate, of course, his praise of the parts that alone, he says, would be “worth the purchase price of the book”—the parts on those landmark cases of Near v. Minnesota, the Pentagon Papers and the Snepp case—perhaps with the iconic case of Bob Jones  University thrown in.  But I’d record a special gratitude for a move of his that has become regrettably rare in the review of books:  a willingness to cite extended passages from the work itself so that the voice of the writer might be heard through the review.

Prof. Ramsey and I also share a notable friend, Antonin Scalia, who has figured notably in both of our lives in our writing on the law.   In my own case, I came to know the man who would become Justice Scalia in the spring of 1977 when he had recently left the Department of Justice.  From the time that my friend joined the Supreme Court in 1986, no one has spoken my mind more often or more powerfully, on the matters of gravest consequence.  But Prof. Ramsey takes his first, gentle turn from things exactly right when he says that I’ve worked “hard” to “distance” myself from the jural works of my friend.  The issue of natural law presents the hard question of those grounds in the “laws of reason” that anchor our judgments and measure the coherence of the law we are shaping.   I think that my friend, that notable jurist, has been firmly anchored himself in those “laws of reason”—it would be hard to find a better logician on the Court. And yet, in the turns he has taken to avoid a distinct moral ground of his judgments—turns that probably reflect his aversion to making any appeals to natural law—the distance has naturally opened between us.  It has taken, then, no “work” especially “hard” to establish that distance.  But it may be useful to track some of differences that come along as we mark that distance.  I can’t take the space here, of course, to do all of that—Prof Ramsey might join me in directing readers to my book for that expedition.   But let me just try to form into a string the problems that Prof. Ramsey offers in his review.


In his opinion in the Heller case from the District of Columbia, on the Second Amendment, Justice Scalia argued for the right of persons, not merely militias, to keep and bear arms.  In a conversation a while back I noted that he had invoked Blackstone and James Wilson to appeal to a right to “self-preservation.”  I assumed that he had meant the right of an innocent person to fend off an unjustified assault.  He assented; that was his meaning. But as I pointed out, and as he well knew, those words were not contained in the Second Amendment.  The question would arise then:  Was he appealing to a deep principle that did not depend for its validity on being mentioned in the text of the Constitution?  Or was he saying:  James Wilson and Blackstone had expressed that principle, and many people, at the time of the Founding, read them?  In the first instance, we would be running back to the moral reasoning behind the text, the reasoning not spelled out in the text (whisper:  we would be doing “natural law”).  In the second, we are falling into legislative history:  We are asking just how many of those men who had helped to frame, pass and ratify the Second Amendment had read Wilson and Blackstone and incorporated them in their understanding.  Even if we could get the answer to that question, it would not be the answer to the question we are asking:  namely, is there indeed a deep principle establishing the right of an innocent person to have access to guns or arms for the sake of protecting himself against an unjustified lethal assault?


Without advertising the matter overly much, Justice Scalia has often deployed his reasoning with powerful effect to find, as the ground of his judgment, principles that are there but not in the text.  (See, for example, his dissent in Gonzales v. Oregon on the use of drugs in assisting suicide, or his trenchant commentaries on the wrong of racial preferences in cases such as Adarand: “there can be no such thing as a creditor or a debtor race.”)  In that vein I’ve been a bit bemused recently to hear the rejoicing (a rejoicing I’ve shared) over the decision in the Hosanna-Tabor case.  Friends of mine have proclaimed the grand news that the right of a religious group to install or remove its own ministers, faithful to its own principles, is now “firmly embedded in the First Amendment.” Really? Where in the First Amendment can it be found?   Indeed it may be there, but it is there only because of the reasoning that people seem to be sure puts it there.   When  Prof. Ramsey falls back on a reliance on the positive law of the  Constitution,  I’d just raise the alert to him:  Are you sure that your reliance on the positive law of the Constitution does not persistently go hand in hand with that moral reasoning, extracting the logic embedded in the text?   The more common spectacle is of judges announcing their doubts and their skepticism, while they shed those hesitations and go on seeking, as Scalia has so often done, the principle lying behind the text.


Prof. Ramsey rightly notes that I too, along with Scalia, would seek to understand the Constitution as it was understood by those men, gifted and flawed, who wrote it.   But I appeal to the framers because they are likely to give us the most luminous account of the rationale for what they had done.  They may have it wrong at times, as indeed Hamilton guessed wrong in the Federalist #32 when he assured his readers  on two subjects that could not conceivably come within the reach of the federal government:  the laws on descent (or inheritance) in the separate States or taxes on land.    I consider the writings of the framers the writings to beat.  I’ll go with them unless I see something more compelling. But we need to break our illusions on one sovereign point:  If we look at something like Hamilton’s memo to George Washington on the National Bank, it is clear that we are dealing with a mind in another register.  We cannot suppose that just about anyone among the Founders could have picked up a quill and struck off those lines.  My point for Prof Ramsey then is this:  If we are drawn to these writings of the framers, it cannot be because we can take any one of them as “representative” of the Founders.  We are drawn to them, first and most decisively, because of the power of the reasoning itself.  And in the sweep of our studies in law we should not sweep past this elementary point at the very beginning:   As Daniel Robinson reminds us, the very grounding of a system of laws in a set of “fundamental laws” or the “first principles” of a “constitution” is itself a move in the Natural Law.   It is never a matter of bringing to the Constitution something outside it in the natural law, for the natural has been there, and bound up with the Constitution, from the beginning.


That sense of things may help to put the matter of “originalism” in its proper, more sober frame, and it leads into the problem that might test Scalia’s position most severely.  I recalled to my friend that in the arguments in the Senate over the Fourteenth Amendment, Lyman Trumbull had to assure his colleagues that nothing in that proffered Amendment would challenge those laws in Illinois as well as Virginia that barred marriage across racial lines.  And it was as clear that, if he couldn’t offer those assurances, there was no way that the Fourteenth Amendment would stand a chance of passing.   Well does that mean that the Court should not have taken the case in Loving v. Virginia?  That it should have held back from striking down the laws on miscegenation?   I put the question to my friend, and he was honest enough to say that he would have to think about it.  But I can’t imagine he would finally say that Loving v. Virginia had been improvidently accepted for argument and wrongly decided.   My hunch—subject to correction—is that Prof. Ramsey would not make that move either.


But in that case we would put the question:  How would he or Justice Scalia make that decision in Loving without appealing to a deeper principle on the wrongness of racial discrimination– even though the implications of that principle had not recognized and accepted at the time?   As I’ve pointed in other places, it is no knock on Lyman Trumbull that he didn’t see all of the implications springing from the principles he was articulating in the Fourteenth Amendment.  After all the life of moral experience is a life of often discovering the implications of our own principles, principles that have heretofore gone unnoticed.


And yet, that would lead to the further question that I might try on Prof. Ramsey:  If he would not renounce Loving v. Virginia, if he would appeal instead to a deep principle here, would he have become now a votary of “the Living Constitution”?  Would he be joining Professors Dworkin and Tribe in bringing the Constitution in line with the evolving “sensibilities of the time”?  Or would he simply be recognizing a principle that was there all along—perhaps in the way that many of our friends now see that right of religious groups to install or remove their own ministers as a right firmly embedded in the First
Amendment?  Firmly embedded, but only recently recognized—and elevated to its proper, high standing.   Do we find the Constitution “evolving” by bringing forth something new, or are we bringing forth what we think was there all the time?


If I’m right in supposing that Prof. Ramsey would have joined the Court in striking down those laws barring interracial marriage;  if I’m right that he would have had to appeal to a deep principle not spelled out in the Fourteenth Amendment or the Constitution;   would it really follow, then, that he would  be doing exactly what Ronald Dworkin, Laurence Tribe, and Jack Balkin are doing when they appeal to what they think is a deep principle in the Fourteenth Amendment to strike down laws that bar same-sex marriage?  Or could it be that one of us has it right and the other wrong?  That one set of reasons is in fact better, more defensible, than the other?   If the response is, we can none of us be sure, well that is the way in which conservatives, of late, back themselves into a kind of soft relativism.  They express in different ways that they are unsure that reason has “truths” to discern.


Let’s see again on this matter of marriage:  I’m separated from that worthy trio of Dworkin, Tribe and Balkin by nothing less than my understanding of (a) the meaning of sexuality itself, (b) the natural telos or purpose of sex (the purpose reflected in the very existence of male and female), and (c) the purpose of the laws of marriage as a framework of commitment to envelop the begetting and nurturing of children.  In the jural world of Prof. Ramsey,  have those kinds of differences simply dissolved once one makes the move, made by Scalia no less than others, to seek the principle behind the Fourteenth Amendment and the Equal Protection Clause?


Many black people have been offended by the willingness to put on the same plane the banning of marriage by race and the insistence on confining marriage to one man and one woman.   No doubt many people will disagree with the reasons they offer, but the people resisting this move in the courts have reasons to treat marriage as a relation indifferent to race but hardly indifferent to the sex of the couple.  Their reasons are not trivial, and they are precisely the kinds of reasons on which the holding will eventually turn in the Supreme Court.  They are not mere flights of imagination or thoughts too woolly to enter into the reasoning of the law.  They are very stuff of the moral reasoning central to the law, and necessary to any judgment about a decision that is finally justified or unjustified.


As Prof. Ramsey knows I’ve sought to show, in my own writings, that the task of judging cases will persistently draw us back to those principles that were there before the text was made.  There is no practicable way for judges to avoid that moral reasoning while they purport to render judgments.   The alternative is a spiral of contradiction:  The judges are told to avoid moral reasoning because they cannot be sure that they are reasoning rightly.  But then how do they know that they have reasoned rightly about that principle asserting, as an anchoring point, their incapacity to reason rightly?   Prof. Ramsey suggests that the question is, “are we better off” when judges take seriously this need to engage in moral reasoning?   Is he pointing to some standard of utility?:  “Act utility,” “Rule utility”–or some other standard?   What is the principle? And where in the Constitution does he find it?

It may only be because questions of this kind, running to the root, have gone largely unexamined, that Prof. Ramsey could come through my book and still say:  “Arkes’s approach does not seem to have a valence for or against liberty.”    Could I really have failed to make it clear, even  to a reader as careful and generous as Prof. Ramsey?:  The whole notion of law arises, as Aristotle taught, from the nature of one kind of creature, a being who can give and understand reasons over matters of right and wrong.    As Lincoln remarked on those slaves who had the good sense not to throw in with John Brown:  as unschooled as they were, they were creatures who had the competence to reason about their own well-being, and they did not deserved to be annexed to the purposes of other men  without their consent.   And that is why we could say, with Locke, and the American Founders, that these kinds of beings have a presumptive claim to their “natural liberty”—to all dimensions of their freedom.  The burden would have to fall then to the law to justify its measures when it would restrict that liberty, take from people the substance of their earnings, or take the lives of these persons.   As some of the Federalists argued, we didn’t need a Bill of Rights in order to put those premises into place in our law.  For they were bound up with the very idea of the rule of law; and they would be there even if there were no Bill of Rights, no First or Fourteenth Amendment, indeed no written Constitution.


Men such as Hamilton, James Wilson, John Marshall showed us often how they made their way to those first principles as the ground of their judgments.  That kind of reasoning turned out to be necessary in explaining the system of law they had put in place.  My simple pitch has been that we would restore a certain moral coherence to our law by the simple art of recovering what these men had taught in their elegant writings.  And so Prof Ramsey and I may truly say together, as Lincoln said during our gravest crisis, that the Founders understood our situation as well as, or better than, we understand it ourselves.

Patrick Henry: The Anti-Madison

From Michael Klarman’s review of Pauline Maier’s book Ratification: The People Debate the Constitution, 1787-1788 in the Harvard Law Review:

If Madison is the hero of Ratification, then Patrick Henry is the villain. Henry’s early and vociferous opposition to British efforts in the 1760s to assert greater control over the colonies, which put him at risk of a treason prosecution, had made him a revolutionary icon. In 1787–1788, Henry waged war on the Constitution. Widely regarded as the greatest orator of his age (p. 230), Henry dominated the Virginia ratifying convention, holding the floor for as much as one-quarter of the proceedings and keeping his audience in rapt attention (p. 310). Henry disparaged the Constitution for exalting the power of the federal government, threatening the existence of state governments, and posing an existential threat to individual liberty (pp. 260, 264–66). In his desperation to defeat ratification in Virginia, Henry was not above resorting to personal invective and even outright demagoguery — playing on white Virginians’ paranoia regarding slavery (p. 284).

After failing to defeat ratification of the Constitution in Virginia, Henry promised graciously to accept defeat and become a loyal citizen of the republic. He was lying. Instead, Henry led efforts to secure the sort of structural constitutional amendments, such as limits on Congress’s taxing and war-making powers, that Madison and other Federalists believed would eviscerate the new federal government (pp. 307–08). Madison was convinced that Henry’s real aim was to divide the Union and create a separate southern confederacy (p. 126).

Henry used his formidable political power in Virginia to retaliate against Madison, both to avenge Henry’s defeat at the Virginia ratifying convention and to prevent Madison from seizing control of the project of constitutional amendments (pp. 440–41). In the fall of 1788, after the Confederation Congress declared the Constitution duly ratified and set the date for national elections, Henry announced to the Virginia legislature, which he largely controlled, that anyone favoring federal constitutional amendments should oppose Madison’s selection as U.S. senator and warned that Madison’s selection would mean bloodshed in Virginia. The Virginia legislature proceeded to select two Antifederalists, Richard Henry Lee and William Grayson, as U.S. senators, with Madison coming third in the balloting (p. 440). Still not satisfied, Henry persuaded the legislature to implement an unfavorable gerrymander of the House district that included Madison’s home in Orange County and to pass a law imposing a one-year residency requirement on congressional candidates, which would have precluded Madison from seeking election in a more favorably constituted district (pp. 440–41). Henry and other Antifederalists then recruited the formidable James Monroe to run against Madison. After Madison nonetheless won the election, Henry tried to kill the bill of rights that Madison shepherded through Congress, managing to stalemate the Virginia legislature over its ratification for two years.

Whether or not Patrick Henry was a villain, he is a very interesting figure.  Recently, I read through much of the Virginia Ratification debates.  It is true that Henry spoke a great deal.  His speeches struck me as long on rhetoric and short on substance — a classic windbag.  Yet, the Antifederalists are often hard to understand and certainly Henry had a great reputation at the time, so maybe I am misjudging him.  I would like to read his speeches over again sometime.

According to Thomas Pangle in this excellent Great Courses/Teaching Company course, Henry led one of the three approaches to opposing or seeking changes in the proposed Constitution.  One approach, advocated by Governor George Clinton of NewYork, advocated junking the work of the Philadelphia Convention and starting over again from scratch.   A second approach was championed by Henry, who called for substantial amendments prior to ratification to be drafted in a second convention.   The third approach, which won out, was that of John Hancock, which called for substantial amendments but did not require them prior to ratification.  I hope to have something to say about this issue in the future.  For now, I think there was much to be said for Henry’s approach.

Finally, something most people don’t know about Henry is that he changed his views over time.  Despite his strong states rights orientation, he later became something of a Federalist in part because of his opposition to the Revolution in France.  While Henry did not appear to support the Sedition Act, he did oppose the Virginia and Kentucky Resolutions issued in reaction to them.  I suppose the only consistency here was his opposition to Madison.  When Madison was a nationalist, Henry defended states rights.  When Madison became a Democratic Republican, Henry moved towards the Federalists.