Professors Randy Barnett and Evan Bernick deliver an exhaustive originalist appraisal of the text, structure, and historical treatment of the Fourteenth Amendment in their co-authored 2021 book The Original Meaning of the Fourteenth Amendment. This title reflects the authors’ support of the modern, mainstream originalist project which seeks the original public meaning of enacted and ratified text. Their rigorous effort to find a text’s original public meaning is an excellent example for the pursuit of objectivity that they expect lawyers, and especially judges, to employ “to get our constitutional house in order.” The authors devote some of their more detailed and diligent analysis to what is, contemporarily, the Fourteenth Amendment’s least invoked clause in Section 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. That clause is the authors’ lynchpin for getting our constitutional house in order. Their effort to remedy a nearly 160-year mistake of narrow interpretation of the Privileges or Immunities Clause is commendable, and the book’s citations in judicial rulings and law review articles since its publication speaks to its authoritativeness. However, their reliance on an originalist method rooted in legal positivism in their Fourteenth Amendment analysis results in only a moderately convincing account. (Before going any further, the reader should know that I consider Barnett and Bernick both good friends of nearly a decade. And in 2017, our James Wilson Institute co-hosted a workshop with both of them on an early version of what became part of their book. I tread cautiously and with only the most wholesome of criticism.)
Why is the Privileges or Immunities Clause the lynchpin for the authors’ analysis? The authors acknowledge Justice Scalia’s quip that the Clause is the “darling of the professoriate,” while contributing little to existing precedent. But rediscovering the legal grounds of citizenship according to the drafters and ratifiers of the Fourteenth Amendment, or as the authors prefer Republican citizenship, can explain the rights that deserve national protection under the clause. No doubt this undertaking is difficult and controversial, but the authors have confidence that, in a reworking of G.K. Chesterton’s famous dictum, interpreting the Clause “has not been tried and found wanting. It has been found difficult and left untried.” 1G.K. Chesterton, What’s Wrong with the World (1910).
To begin to understand the content of the Clause, the authors cite pre-ratification statements, post-ratification statements, and judicial rulings, as well as the historical record of the usage of the terms “privileges” and “immunities.” They contend that the Privileges or Immunities Clause secures both natural rights, unenumerated in the Constitution, and enumerated “post-political” rights such as “the benefit of the writ of habeas corpus” to supply the ground of those civil rights that deserve national protection under the Clause. National protection is key because the authors understand the spirit of the clause to be animated by Civil War-era abolitionist thinking in extending protections of the national government to Black citizens. The Clause is the lynchpin of their analysis because its ratification altered the federal government’s orientation to “actively respond both to state action and to culpable omission that puts citizens’ rights at hazard.”
The authors outline four categories of fundamental rights that the Clause secures, but the most interesting analysis concerns the category of unenumerated rights. The Supreme Court has, historically, protected unenumerated rights using the Due Process Clause, rather than the Privileges or Immunities Clause. The Court’s 1997 decision in Washington v. Glucksberg, which asked whether a claimed right is firmly rooted in the nation’s history and tradition before securing its protection, has become the canonical case on substantive due process. The Court reaffirmed Glucksberg as recently as last term in the landmark Dobbs decision, striking down federally-protected access to abortion nationwide as insufficiently rooted in the nation’s history and tradition. One of the common criticisms against the Glucksberg history and tradition standard is that it has a level of generality problem. In short, history and tradition are general terms that could be interpreted in varied ways. The authors largely endorse the Glucksberg standard as a legitimate threshold for unenumerated rights due protection under the privileges or immunities clause, but with their own added twist to address the level of generality problem: “firmly rooted” must mean that a right has been part of a “stable national consensus” for at least a generation. According to Barnett and Bernick, such a right must be instantiated in positive law or judicial determinations and “be widespread for a lengthy period,” or about thirty years.2From where does this thirty-years rule derive? Readers can be forgiven for thinking that the thirty-years rule that the authors propose sounds as subjective (or arbitrary) as when Justice Sandra Day O’Connor asserted, at the end of her opinion concerning the permissibility of affirmative action for race in a public university’s admissions in the Court’s 2003 decision in Grutter v. Bollinger ,“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The authors hedge the specificity of their thirty-years rule by recognizing that the requirement is more of a guidepost than a strict rule. However, the point that the authors stress is that “a right must be found,not created.”
The authors leave themselves open to several critiques. First, hunting for a specific clause, such as Privileges or Immunities, to ground unenumerated rights may be a never-ending errand. As the Federalists, most notably Madison in Federalist 48, argued, the overall structure of the Constitution, not one specific clause, is a protection against ignoring unenumerated rights. Individual provisions of the Constitution are but “parchment barriers.” Perhaps the authors are laboring under a false dichotomy, i.e. the Privileges or Immunities Clause secures unenumerated civil rights better than the more often invoked Due Process Clause. There is another possibility though. Perhaps unenumerated rights pre-exist both Clauses. Therefore, unenumerated rights are not reliant on any one clause within the Constitution for their protection. Perhaps that protection is tied to whether or not the right can coherently be connected to, as Hamilton said, “certain primary truths, or first principles, upon which all subsequent reasonings must depend.”3Federalist 31 (Alexander Hamilton) (Hamilton continued, “These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.”). I grant that the authors are working to understand the framers of the Privileges or Immunities Clause on their own terms, particularly Senators Jacob Howard and Charles Sumner and Representative John Bingham. But should we not consider the overall structure of the document, rather than any one clause for protection of unenumerated rights?
A close reading of the opinions from one Supreme Court decision, Edwards v. California,4314 U.S. 160 (1941). from 1941 confirms that the protection of certain unenumerated rights does not depend on the precise clause cited, but rather the coherence of the claimed right that can be articulated and supported by any legitimate actor in the constitutional scheme. The justices considered whether a California law banning the introduction of indigent persons from out of state violated the Constitution. What was remarkable was not the unanimous agreement among the justices that the California law violated the Constitution. Rather, the diversity of clauses cited by different justices to articulate the same first principle was notable. Justice Byrnes, writing for the majority, cited the Commerce Clause. States must be able to traffic with one another in commerce. California’s law erected an impermissible barrier to that commerce. A state may enact a law to restrict, for example, the liberties of criminals from entering from out of state. But as Justice Byrnes distinguished, “Poverty and immorality are not synonymous.” By contrast, Justice Jackson cited the Equal Protection Clause, reasoning that “‘Indigence’, in itself, is neither a source of rights nor a basis for denying them. The mere state of being without funds is a neutral fact — constitutionally an irrelevance, like race, creed, or color.” Finally, Justice Douglas invoked the Privileges or Immunities Clause. He held that the Clause protected citizens traveling nationally, regardless of their station in life. His concern was how the California law would “introduce a caste system utterly incompatible with the spirit of our system of government. It would permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship.”
Notice how all three of the justices in Edwards cited different clauses of the Constitution for the same basic conclusion: “we cannot draw moral inferences about the worth of people as though poverty exerted a deterministic force in controlling the moral acts of anyone.”5Hadley Arkes, Letter to a Noble Lawyer, Law & Liberty (Feb. 11, 2021) https://lawliberty.org/letter-to-a-noble-lawyer/. The right to travel freely as a poor person was nowhere articulated in the Constitution. The Privileges or Immunities Clause no more strongly protected the right at issue in Edwards than did the Equal Protection or Commerce Clauses. The point is that the Court was able and willing to intervene to vindicate an unenumerated right according to a coherent justification, not that the Privileges or Immunities Clause contains within it some greater protection of that right.
The authors might reply to the Edwards example that they wish to make invocations of the Clause a more predictable and practical endeavor for discerning which unenumerated rights deserve protection. Edwards featured a messy disagreement about which clause to employ precisely because the justices at that time did not have the kinds of originalist tools that the authors provide to settle which clause would work best. Those tools include more refined criteria on privileges or immunities for consideration rather than judges ad hoc interpreting the nation’s history and traditions themselves. The authors would likely argue that the justices in Edwards were not finding law but rather illegitimately making law.
By contrast, the authors declare that they take a “positive-law approach to identifying privileges or immunities.” In the Conclusion, they criticize natural lawyers and moral philosophers who would have judges “deduc[e] privileges and immunities from some set of natural rights axioms.” Barnett and Bernick emphasize how the framers of the Fourteenth Amendment, including Senators Jacob Howard and Charles Sumner and Representative John Bingham, chose positive law justifications rather than natural law justifications. They note that “Natural-law lawyers may take issue with this.” The irony is that Barnett and Bernick, in their other writings, are otherwise friendly to invocations of natural rights outside the context of interpreting privileges or immunities to secure unenumerated rights. But when distilling unenumerated rights that deserve protection under privileges or immunities, they seem to join the legal positivists because they believe “Originalism itself represents such a commitment to the higher positive law of the Constitution.” The authors claim that the moral neutrality of their positivism makes their approach to originalism morally legitimate.
The authors want the restoration of the Privileges or Immunities Clause to a significant role in interpreting fundamental rights to be removed from making moral judgments about statutes and judicial rulings. When they refer to the dissatisfaction of their project with “natural-law lawyers,” they likely have friends like me in mind. Although they do not cite it, they could have had in mind the A Better Originalism statement that I and several others wrote last year. In that statement, we argued that for originalism to function properly, it requires admitting that when “interpreting legal texts, [one] can never be truly morally neutral on rudimentary civilizational issues.”6Hadley Arkes, Josh Hammer, Matthew Peterson & Garrett Snedeker, A Better Originalism, Amer. Mind (Mar. 18, 2021), https://americanmind.org/features/a-new-conservatism-must-emerge/a-better-originalism/. A Better Originalism encompasses in our understanding of originalism a duty to test the underlying moral justification of statutes and judicial rulings. Barnett and Bernick’s “flavor” of originalism values “coordinating social activity,” or creating expectations in interpretation, but, unfortunately, on the same level of, or above, testing whether or not a law has an ontologically true basis. They provide a great service to our understanding of the Fourteenth Amendment, and to get our constitutional house in order, but their proposed solution leaves them open to these criticisms. This does not tarnish their work so much as provides them fodder for further argument among friends.
