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Privileges or Immunities, Substantive Due Process, and Kurt Lash

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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The Rational Basis Test: What Violates It?

In my new article, “Rebuilding the Fourteenth Amendment: Prospects and Pitfalls,” I contend that the libertarian community must focus more attention in the future on what exactly violates the rational basis test. It took a long time to show that some things actually do violate it. But the harder step is to persuade courts to actually use rationality when applying that test. That begins with an acknowledgement of the role that political philosophy plays in law—something that a lot of people are reluctant to admit. Yet it’s inescapable: to determine what is “rationally related to a legitimate government interest” requires that we determine what is and is not a legitimate government interest. Yet courts have refused to answer that question—with results as disastrous as Powers v. Harris:

The correct answer, and the one the Court will be forced to face someday, is that economic liberty and private property are fundamental human rights, and that the taking of wealth or economic opportunities from some groups and giving them to others as a mere exercise of political will is illegitimate. Powers must be recognized for what it is: among the most nihilistic pronouncements of any American court. It goes beyond the (false) notion that the Constitution is made for people of fundamentally differing views, and asserts that the Constitution is also made to enable the legislative majority to impose its will without any requirement that its legislation serve some conception of the public good. Yet the very purpose of a written constitution is to ensure that there are limits to the political process, to prevent that process from degenerating into a mere combat of wills whereby economic opportunities, resources, and other goods are redistributed according to raw political power. The Constitution of Oklahoma (situs of the Powers case) declares that “government is instituted for [the people’s] protection, security, and benefit, and to promote their general welfare,” and that “[a]ll persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” The Powers decision rejects these principles wholesale. These principles are no less a part of the Fourteenth Amendment. They are embedded in the Due Process of Law Clause, which forbids the government from exercising its powers in an arbitrary or causeless fashion, and requires the government to abide instead by a rule of law—which is to say, by such substantive values as regularity, publicness, comprehensibility, etc., which together distinguish lawful rule from arbitrary rule.

From the days of Aristotle to Thomas Aquinas to John Locke to James Madison to Lon Fuller to the present, constitutional thinkers have agreed on at least this: that legitimate government rule seeks to promote the public good, and not merely to benefit those who exercise government power. And since the founding of the country, that has been understood as a basic principle of Due Process of Law. Obviously the ticklish question is: what counts as the “public” good? But the Powers Court did not seek any answer. Rather, it rejected the very possibility of answers; it spurned the proposition that government actions, to be legitimate, must aim at any kind of public good, and ruled instead that whatever economic restrictions the government sees fit to impose—even if they are concededly not for the public benefit, but are adopted solely for the self-interest of a politically influential faction—satisfy the legitimate government interest prong of the rational basis test ipso facto. And the reason? Because to “apply[]” a contrary rule “in a principled manner would have wide-ranging consequences.” How disgraceful: to refuse to issue a legally correct ruling on the grounds that it might prove hard to enforce.

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The Fourteenth Amendment: Prospects and Pitfalls

The new issue if the NYU Journal of Law & Liberty is out, and it includes my article, “Rebuilding the Fourteenth Amendment: Prospects and Pitfalls,” which I prepared for last year’s event celebrating the 150^th anniversary of the Amendment. My article takes a look at some of the achievements we’ve made in strengthening legal protections for the right to earn a living, private property rights, etc.—and at some of the work that remains to be done.

First up, I take a look at what I call the “Trade Trigger”—the way in which the pervasive prejudice against economic exchange within the legal subculture has legitimized a totally irrational aspect of law: the use of the presence of a commercial transaction to treat some behavior as qualitatively different than if the same behavior exists without the transaction. George Carlin put it more simply: “Selling is legal, fucking is legal, so why isn’t selling fucking legal?” Since the presence of a commercial transaction does not change anything about the underlying behavior—it doesn’t make it more or less moral, or more or less safe, or more or less legitimate in any other way—it’s senseless that the law so often treats the existence of a transaction as a basis for regarding something as different in a constitutional sense. The Eleventh Circuit has even declared that “commerce” is “an inherently public activity.” This is absurd, I argue. Many economic transactions take place within a realm of privacy however defined (either subjectively, objectively, or both). Consider home-sharing: it’s legal to let someone stay in your home overnight. It’s legal to let someone stay in your home overnight in exchange for washing dishes. But it’s not legal to let someone stay in your home overnight in exchange for money? How stupid is that?

The “Trade Trigger” as I call it shows up all the time in occupational licensing: it’s legal to cut someone’s trees or hair or tax liability—but it’s not legal to cut these things for money unless you have a government license. That makes no sense. If something is unsafe enough that the government can ban it, then it should ban it for free as well as for money—or should not ban it at all. Even freedom of speech—in theory, the most rigidly protected of our constitutional rights—is infected with the “Trade Trigger”: it’s legal to show someone the sights in New Orleans. But do it for money without a government license, and you’re a scofflaw.

The Trade Trigger makes no sense and should be eliminated. (To be continued…)

First review of my new book

Publisher's Weekly has posted a review of my forthcoming book, The Ascent of Jacob Bronowski, which will be published in July.

Attorney Sandefur (Frederick Douglass: Self-Made Man) reintroduces one of the 20th century’s major science popularizers with this first biography of Jacob Bronowski (1908–1974), best known for his 1970s BBC TV series, The Ascent of Man. Exhaustive research, including interviews with Bronowski’s widow, Rita, and his daughter Lisa, and deep dives into Bronowski’s papers, enables a comprehensive account.... Throughout this lucid account, Bronowski comes across as a complex and fascinating figure whose own writings merit a renewed readership today.

Pretty excited about this book. I hope it reignites interest in Bronowski.

Western culture

I have a little essay on one of my favorite writers, the western novelist Elmer Kelton, in the Claremont Review of Books. If you're not a fan of cowboy novels, I don't blame you. Neither was I...until I encountered Kelton. Excerpt:

...choices matter in Kelton’s west, which is populated—with few exceptions—by people seeking to do their duty as they understand it in the face of costly dilemmas. Nowhere is that clearer than in his masterpiece, The Time it Never Rained. The main character, Charlie Flagg, is determined to hold on to his ranch despite a seven-year drought that drives him into near-bankruptcy. Time and again he refuses government aid, insisting on his independence. But the book is not focused on politics; Kelton is more interested in his character’s gumption. “I just don’t believe in askin’ somebody else to pay my way,” Flagg tells a reporter who interviews him.

If you’d go in my wife’s kitchen you’d see an old pet cat curled up close to the stove. She’s fat and lazy. If a mouse was to run across the kitchen floor, that old cat wouldn’t hardly stir a whisker. She’s been fed everything she wanted. She depends on us. If we went off someday and left her, she’d starve. But out at the barn there’s cats that can spot a mouse across two corrals. I never feed them. They rustle for theirselves, and they do a damn good job of it. If I was to leave they’d never miss me. All they need is a chance to operate. They may not be as fat as the old pet, but I’d say they’re healthier. And they don’t have to rub somebody’s leg for what they get. Now, you can call me old-fashioned if you want to—lots of people do—but I’d rather be classed with them go-getters out in the barn than with that old gravy-licker in the kitchen.

As the ground stays dry year after year, Flagg’s debts come due. He gradually loses his sheep and most of his land. His refusal to yield drives away his friends and even his son, who see him as foolhardy or are ashamed at the comparison between their weakness and his integrity. (“Nobody likes his conscience naggin’ at him,” says one.) Disaster strikes again at the end of the novel, threatening to destroy what little Flagg has held on to. Yet he keeps his pride, and it serves as a priceless inspiration to those around him. “There’s still the land,” he tells his wife. “A man can always start again. A man always has to....”

The catastrophes of Kelton’s lifetime—the Depression, the war, the drought—demanded a strength of character that rebelled against handouts, and manifested itself in a strand of literature celebrating self-reliance and integrity in ways rarely addressed in American letters before—a tradition that includes such novelists as Laura Ingalls Wilder, Rose Wilder Lane, Isabel Paterson, Ayn Rand, Zora Neale Hurston, and other anti-New Dealers. Like them, Kelton sought to memorialize the virtues that guided American exceptionalism. But he did so in the distinctive fashion of the western novel: heavy on folklore, but realistic about the struggles that shaped the frontier experience.

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The case for optimism

In this week's Objective Standard contribution, I take a look at Steven Pinker's outstanding new book, Enlightenment Now.

Progress toward economic liberty in Arizona

I spoke yesterday with Armstrong & Getty about two recently passed bills that help open the door ofeconomic freedom in Arizona. And also a little about The Simpsons. You can listen here.

T.S. Eliot versus E.E. Cummings on spring, humanity, and more

April is poetry month. It’s also the “cruelest” month, according to T.S. Eliot. I explain why—and why E.E. Cummings is so much more humane—here.