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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