In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated rights like the right to make contracts, among others listed in the Civil Rights Act of 1866. In this Article, we will do so.
We will contend that Lash has provided readers with an abridged version of the Privileges or Immunities Clause. In future writing, we will advance a competing account of the original public meaning of the Privileges or Immunities Clause. We will also develop a framework that can be used by judges and legislators to identify the rights protected by the Clause, to thwart state abridgments of those rights, and to evaluate congressional legislation that is purportedly designed to protect those rights.
Part I provides an exposition of Lash’s thesis. Because his arguments are complex, and rely on diverse evidence, our summary is lengthy. Given the multiplicity of his publications on the subject, we think an accurate summary of Lash’s approach is both independently worthwhile and a necessary prelude to any critique.
Part II systematically critiques Lash’s evidence and arguments. We find that Lash’s enumerated-rights-only—or “ERO”—theory has little support in antebellum jurisprudence; that the evidence Lash offers to show that John Bingham, upon whose testimony Lash heavily relies, held Lash’s ERO theory is equivocal at best; and that Lash’s ERO theory was not widely shared by the Fourteenth Amendment’s framers. We then explain why evidence from the debate over ratification does not indicate that the ERO theory was embraced by the public.
Next, we canvass postratification jurisprudence and congressional debates over various pieces of civil rights legislation both prior to and shortly after the Supreme Court’s fateful decisions in the Slaughter-House Cases and United States v. Cruikshank—decisions that are generally regarded as having rendered the Privileges or Immunities a “practical nullity.” We find that the interpretations of the Clause that are contained in these materials are, for the most part, inconsistent with Lash’s ERO theory.
Finally, we engage and respond to Lash’s argument that the political dynamics during the relevant time period made it impossible for any constitutional amendment that delegated to Congress and the federal courts the power to enforce unenumerated rights to be ratified.
Randy E. Barnett & Evan D. Bernick,
The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss2/1