Originalism and the Future of Religious Freedom

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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The Dignity of Wage Labor in the Republicans’ Free Labor Ideology

Volume 2 of historian John Ashworth’s discussion in Slavery, Capitalism, and Politics in the Antebellum Republic touches on a shift in Americans’ views toward wage labor. This shift anticipated the rise of the Republican Party’s “free labor” ideology, and then continued to develop concurrent with it. Prior to this shift, Americans widely viewed wage labor as invested with little dignity, as scarcely preferable than indentured service. If one worked for wages, respectability required that one aim to work out of this form of employment, saving toward property ownership or work as an independent artisan. Only those who couldn’t or wouldn’t move out of wage labor remained in that condition permanently. Lifelong wage labor was for losers.

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Why Originalism?

Editing First Amendment Pencil US Constitution

In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”

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How Enduring Originalism Puts Real Jurisprudential Teeth in Originalism’s Bite

This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.

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The Falsifiable Justice Kennedy


The Green Bag’s most recent Micro-Symposium is worth checking out.

My favorite piece is Jonathan Mermin’s “On the Importance of Headings and Subheadings in Judicial Opinions.” It exhibits the mixture of whimsy, substance, and law-nerdiness characteristic of great Green Bag writing.

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Tradition in a Scattering Time

Jean-François Millet - The Sower

What could be more amusing, quaint really, in the minds of many than meeting in New York City for two days to discuss tradition and law?

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The Original Understanding of Substantive Due Process

Justice Collage

The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.

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14th Amendment Bars Protectionism, But Not Inefficient Regulation

In a previous post, I argued that the Fourteenth Amendment protects economic liberties. One concern often expressed about such protection  is that the courts would become “a perpetual censor” of all  legislation. But the best evidence of the originalist standard of review shows that concern is misplaced. The standard forbids economically protectionist legislation directed against citizens within a state, but is otherwise relatively modest.

Here Justice Field’s dissent in Slaughterhouse is again instructive both about which rationales justify trenching on economic liberties and which do not. (While his opinion relied on the Privileges or Immunities Clause, two justices who would have also relied on the Due Process Clause concurred on these standards).  Fields, of course, would have invalidated the Louisiana monopoly that made it impossible for other butchers within the state to compete in New Orleans. Thus, it is not a justification under the Fourteenth Amendment to prefer one group of citizens to another. Economic protectionism, which is the essence of a state granted monopoly without public regarding considerations, is thus unconstitutional.

Indeed, no Supreme Court case has ever clearly stated that state regulation based on economic protectionism or on favoring one class of citizens over another is constitutional. The fact that the Court at the height of the New Deal was unwilling to say that states were justified in preferring one class of citizens over another because of politics shows how unpersuasive it the attempt to conclude that purely protectionist legislation meets even the most lenient standard of review.

The harder question is how courts are to proceed, assuming that the defense of the legislation can be rooted in a putative police power objective.

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What Did the 14th Amendment Congress Think about “Birthright Citizenship”?

USA Citizenship Application Documents

Candidate Donald Trump’s recent proclamation that he is opposed to so-called “birthright citizenship” for the offspring of illegal aliens born in the United States has, like many of his campaign statements, set off hysterical paroxysms of outrage and protest. I do not support Donald Trump for President, but much of his appeal lies in the fact that he is willing to address taboo subjects in a way that the public—tired of candidates and elected officials cowed by rigid protocols of political correctness—finds refreshing. The topic of “birthright citizenship” is a perfect example.

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Equality and the Civil Rights Act of 1866: A Final Response to Damon Root

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.

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