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 Continuity of the Fourteenth Amendment with the Founding

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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Lash on the Fourteenth Amendment

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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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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Root Digs a Deeper Hole: The Equal Protection of Economic Privileges and Immunities

Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.

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Fighting Federalism: Damon Root’s Overruled (Part One)

U.S. Supreme Court building in Washington D.C.

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…

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Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett

Washington_Constitutional_Convention_1787

Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

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The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham

My thanks to the Library of Law and Liberty for inviting me to respond to David Upham’s review of my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge U. Press 2014). Thanks also to Prof. Upham for taking the time to review the book and his gracious acknowledgement that it constitutes a step forward in our understanding of the Privileges or Immunities Clause. Unfortunately, in some of his more critical comments, it appears that Upham has misunderstood the theory of the book and (worse) missed much of the evidence presented in the book.

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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…

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Slavery, Abortion, and the Politics of Constitutional Meaning

Slavery, Abortion, and the Politics of Constitutional Meaning

This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…

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