In my article, “Rebuilding the Fourteenth Amendment,” I examine some of the bad ideas circulating in the libertarian/conservative legal community, and particularly the effort by some to abolish the principle of substantive due process and to substitute instead a cramped interpretation of the Privileges or Immunities Clause that reduces the list of rights protected by that clause to a pre-approved set of privileges. One of those whose work is instrumental to this effort is Prof. Kurt Lash. I write:
The McDonald Court’s failure to make any serious effort to defend the Slaughter-House precedent speaks volumes.
The Court did, however, note its concern that those seeking to revive the Privileges or Immunities Clause had failed to “identify the Clause’s full scope.” This criticism, anchored in an illegitimate theory of judicial restraint, reflects a misguided conception of the Clause, which, like the Ninth Amendment, was written specifically to be open-ended. “[T]he ordinary rights of citizenship no law has ever attempted to define exactly,” said Senator John Sherman when explaining the Clause in 1872. Privileges and Immunities refers to rights such as “are recognized by the common law, such as are ingrafted [sic] in the great charters of England, some of them ingrafted [sic] in the Constitution of the United States, some of them in the constitutions of the different states, and some of them in the Declaration of Independence. The Constitution’s authors “did not attempt to enumerate” these rights because “they [are] innumerable, depending upon the laws and the courts from time to time administered.” The Privileges or Immunities Clause protects unnamed rights because rights cannot all be named. The Constitution enumerates the powers of government. Not only does it make no attempt to enumerate all individual rights, but it expressly refuses to do so, because that is impossible. The McDonald Court’s concern about the Clause’s “full scope” thus reflects a categorical misunderstanding of what the Amendment means.
Yet that concern 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 so-called activist 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.”
Yet 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” and leaves them 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 effort to cabin Privileges or Immunities and to destroy substantive process represents, I believe, an attempt at a compromise between libertarians and conservatives:
True, there is much to complain of in existing Substantive Due Process jurisprudence. But the effort to replace it in toto with a revived Privileges or Immunities Clause will have one of two consequences: either it will make no difference at all, because it the latter will include the same natural-law inquiry that the former has always called for, or it will utterly transform our constitutional law by replacing the Fourteenth Amendment’s broad guarantees of liberty with a delimited set of specified rights. This would be “dangerous” because it would “afford a colourable pretext” to the government “to claim more [powers] than were granted.” One need not believe that Slaughter-House was rightly decided, or that it should remain on the books, to be wary of any bargain whereby the critical and ancient protections of Due Process of Law are surrendered in exchange for an itemized list of privileges or immunities. The bottom line is this: the attack on Substantive Due Process is fundamentally an argument for judicial deference—which is to say, for judicial abdication—even if it accompanies a willingness to revive the Privileges or Immunities Clause. Advocates of liberty should refuse to participate in that.
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