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Rebuilding the Fourteenth Amendment: The Prospects and the Pitfalls

I've posted my paper "Rebuilding the Fourteenth Amendment: The Prospects and the Pitfalls," prepared for the upcoming IJ symposium on the 150th anniversary of the 14th Amendment, on SSRN. Excerpt:

The McDonald [v. Chicago] Court’s concern about the Clause’s “full scope” echoes a continuing debate in Fourteenth Amendment scholarship, one which liberty-oriented legal scholars must attend to. Kurt Lash and others have recently mustered an impressive mass of research to argue for a “more constrained” view of the Privileges or Immunities Clause, that seeks to address conservative worries about judges “enforc[ing] their preferred ideas of government power and individual freedom.” According to Lash, the Clause was designed not to protect “unenumerated rights,” but only “the express enumerated rights of the Constitution.” One problem with this theory is that, even if one assumes all the conclusions Lash draws from the speeches and writings surrounding the Clause’s adoption, the enumerated rights in the first ten amendments include unenumerated rights, by definition. The Fifth Amendment, for example, provides that no person shall be “deprived of…liberty” without due process of law. But liberty consists of an infinitely long list of “unenumerated” rights. It includes, for example, the right to run barefoot through sprinklers on a hot summer day, the right to think about a peppermint candy, the right to take a photograph of a rainbow (and to sell it), the right to take such a photo on a Tuesday and also on a Wednesday, the “right to wear [one’s] hat if [one] please[s],” or to “get up when [one] please[s], and go to bed when [one] [thinks] proper”—and so on indefinitely. The Ninth Amendment, too—which Lash himself contends can be incorporated through the Privileges or Immunities Clause—references “other rights,” which, even if they include a “right” to local self-government, as Lash beleves, are in any event unenumerated.

Thus, even under Lash’s argument, the “liberty” and “other rights” guarantees of the Bill of Rights, and possibly other similarly open-ended guarantees, must be included among the
privileges and immunities of federal citizenship that Section One of the Fourteenth Amendment protects. And that means that even on Lash’s own reading, the Clause plainly does incorporate at least some “unenumerated” rights—including the indefinitely large set of rights subsumed under the word “liberty”—against state interference. It also means that at least some of those unenumerated rights are individual rights, rather than, or in addition to, the “collective right[s]” that Lash thinks the Ninth Amendment refers to.

This is not, of course, the place to address all of Lash’s claims regarding the Clause; it is merely to say that the McDonald Court’s concern about “the Clause’s full scope” reflects a desire to determine precisely what kinds of rights the Clause protects—a desire that cannot be appeased because the Clause is by its own nature open-ended and illimitable. To demand “the Clause’s full scope” is to demand liberty’s full scope, which is as unanswerable a question as “how high is the sky?”

...“Libertarian views”...are by definition not forced on people. People are born naturally free. It is government restriction, and property expropriation, and regulation, confinement, and censorship, that are forced upon people. Freedom is not forced on people—it is already theirs. This is a fundamental fact of reality—although if the legal positivist needs some authority for it, it is also to be found in the organic laws of the United States. It is essential that this basic idea and its corollaries—that all people are born with a fundamental right to themselves; that they are presumptively free, and that restrictions on their liberty must be justified; that the Constitution was written to preserve liberty, not to facilitate collective decisionmaking without regard to its direction; that the law is not morally neutral—become a central part of our legal discourse if the Fourteenth Amendment’s promise is to be fully realized.

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New Review of Frederick Douglass: Self-Made Man

The American Spectator has this very nice review of my Frederick Douglass book.

Frederick Douglass's philosophy of the self-made man

If you'd like a copy of the written version of my remarks at TOS-Con on Frederick Douglass's philosophy of self-made men, you can download it here.

Sequoyah and the invention of Cherokee writing

The new issue of The Objective Standard has my article on Sequoyah, the genius who invented the Cherokee writing system (technically not an alphabet, but a syllabary). This article was a lot of fun to write, and included a little field trip down to Sequoyah's cabin in Sallisaw, Oklahoma.

Was Frederick Douglass a libertarian?

On the latest Liberty Chronicles Podcast, I talk with Anthony Comegna about Frederick Douglass's lessons for liberty.

Due process and agency: compliments, not substitutes--my response to Gary Lawson & Guy Seidman

The Florida Law Review Forum asked me to comment on Gary Lawson and Guy Seidman's recent law review article, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care. My comment is now available online. Excerpt:

Constitutional guarantees such as the Fifth Amendment are added to constitutions over time, as new kinds of government abuse are experienced by the people. It is virtually never considered wise to erase an existing constitutional guarantee just because some new, more specific one is added. Constitutions thus tend to grow, to include a larger number of protections, sometimes of increasing precision, even though these may overlap. For instance, when railroad corporations abused the power of eminent domain in the nineteenth century, leading many states to add restrictions on that power far more extensive than the “public use” requirement already found in their existing constitutions, the framers of the new constitutions did not then eliminate their Public Use Clauses. The Missouri Constitution, for example—which has been revised or rewritten seven times—includes five clauses addressing eminent domain, including its original 1820 Public Use Clause. In short, “redundancy is a weak (and ironic) interpretive argument in any legal context,” and particularly in the constitutional context. After all, the founding fathers considered the entire Bill of Rights redundant. Yet the Constitution was written in order to provide different layers of protection for the citizen—layers that are sometimes redundant. That is not surprising: laws can be unconstitutional in more ways than one. 

Professors Lawson and Seidman seem to recognize that their principal-agent account of constitutional limits is not coterminous with Due Process of Law theory. If it were, their redundancy argument might support their (apparent) rejection of Due Process of Law. But the opposite is the case: the agency principles Professors Lawson and Seidman rightly see as limiting the discretion of public officials in a republican government overlap without displacing the broader Due Process of Law guarantee that imposes substantive limits on government power, in whatever form. The reason is that these principles operate at different levels of political structure: the Due Process of Law Clause is the most basic guarantee of lawful rule; the principal-agent limit is a restriction inherent in a fiduciary relationship. There is plenty of room (thank goodness!) for both.

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Challenge to ICWA's burden on Native American children to be heard today

Today, arguments will be heard in a major case challenging the constitutionality of the Indian Child Welfare Act, a federal law that blocks states from protecting abused and neglected children or finding them adoptive homes if their ancestry is Native American. I explain on National Review Online.