Do We Have an Amoral Constitution? A Second Reply to Kurt Lash

Are there inherent limits on government power, or are there wide areas of life in which the government has essentially unlimited authority? In a recent essay in response to Professor Kurt Lash's critical two-part review of Damon Root's book, Overruled, I argued that the Privileges or Immunities and Due Process of Law Clauses of the Fourteenth Amendment are properly understood to protect unenumerated natural and common law rights, including the right to earn an honest living. Root has defended his own work here and here, and Lash has responded to both of us, defending his view that the Privileges or Immunities Clause only protects rights specifically listed in the Constitution's text. But Lash's position is based on an implausible reading of the relevant text and history and reflects an understanding of the Constitution that would raise grave concerns about the Constitution's moral legitimacy, were it correct. Fortunately, Lash's understanding is not correct, and judges should not adopt it.

First, the history. Root and I have argued that the Fourteenth Amendment's Privileges or Immunities Clause protects natural and common law rights, including rights not listed in the text of the Constitution. We have drawn upon leading Republicans' use of language from an 1833 decision, Corfield v. Coryell, during the framing of the Fourteenth Amendment. In Corfield, Justice Bushrod Washington interpreted Article IV's Privileges and Immunities Clause, which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In doing so, he sought to define the "privileges and immunities" of Americans:


They may... be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole.

According to Lash, use of this broad language by those who drafted the Fourteenth Amendment, including its linguistically similar Privileges or Immunities Clause, does not mean that they were empowering the national government to protect substantive rights not listed in the Bill of Rights. Lash argues that Article IV's Privileges and Immunities Clause is, properly understood, merely a "comity clause" that provides nonresident visitors "the right of equal protection for a limited set of local privileges and immunities" when traveling through or doing business in another state. Thus, says Lash, references to Corfield by leading Republicans mean only that "the Comity Clause stands as one of the Privileges or Immunities of citizens of the United States protected against state abridgment by the Fourteenth Amendment." States are free, according to Lash, to infringe people's unenumerated natural and common law rights, so long as they treat residents and nonresidents the same in doing so.

Lash's arguments are unpersuasive. First, the history makes clear that many Republicans did not share Lash's interpretation of Article IV's Privileges and Immunities Clause as simply embodying a nondiscrimination principle. As Michael Kent Curtis put it in his indispensable volume, No State Shall Abridge, "leading Republicans in the Thirty-ninth Congress relied on a reading of the privileges and immunities clause... that is unorthodox, at least by current legal standards." Following antislavery constitutionalists like Joel Tiffany, they believed that Article IV was no mere "Comity Clause" but rather that it protected substantive rights, including those natural and common law rights listed by Justice Washington in his Corfield opinion. It is that understanding that they made enforceable by the national government against the states through the Fourteenth Amendment's Privileges or Immunities Clause. In projecting his own understanding of Article IV into the minds of men like John Bingham and Jacob Howard, Lash neglects the possibility -- indeed, the strong probability -- that they understood the relevant terminology very differently than Lash himself does.

Nor is this the only place where Lash's anachronistic projection of current doctrine into the minds of nineteenth-century politicians and jurists causes him problems. In my reply to Lash, I argued that both the Privileges or Immunities Clause and the Due Process of Law Clauses of the Fourteenth Amendment are properly read to protect unenumerated rights from state infringement and offered a brief defense of so-called "substantive due process" -- the idea that the Due Process of Law Clause prohibits certain deprivations of life, liberty, and property regardless of what procedures are used to effect those deprivations. Lash's response to this argument was dismissive -- he suggests that it is indicative of the failure of libertarian constitutionalism that I would invoke such a "broadly mocked" (his words) concept at all.

But Lash is once again projecting his own modern understanding of the Constitution back through time and into the minds of those who framed and ratified the Fourteenth Amendment. In doing so, he fails to take account of abundant evidence that what is now pejoratively called "substantive due process" was accepted by the Founding generation and central to Republican thought. Whereas the Privileges or Immunities Clause guarantees the natural and common law rights of citizens, the Due Process of Law Clause ensures that no person -- citizen or not -- and is subjected to arbitrary exercises of government power that further no rational, public-spirited end. By 1868, this concept had been embraced by courts in at least twenty of the thirty-seven then-existing states and by authors of leading treatises on constitutional law. John Bingham, the author of Section 1 of the Fourteenth Amendment, invoked the Fifth Amendment's Due Process of Law Clause as a source of substantive restrictions on both the federal government and on territorial governments subject to federal control in multiple pre-Civil War speeches. Beyond the glib smokescreen of what Timothy Sandefur calls the "foolish, misguided, politically biased, intentionally misleading nonsense" written about substantive due process lies a serious jurisprudential concept that would have been perfectly familiar to the Framers of both the original Constitution and the Reconstruction Amendments -- and embraced by many of them.

Finally, we are left with the question of what to do today. On Lash's view, the Constitution today would not prevent the government from performing eugenic sterilizations, prohibiting the use of contraceptives, outlawing private schools, criminalizing same-sex intimacy, or, to borrow one of his own examples, forbidding people from selling shoes. What would Lash say to a decision reached last week by the Second Circuit Court of Appeals, which upheld a nakedly anticompetitive restriction on non-dentist teeth-whiteners in Connecticut? Writing for himself and another judge on the panel, Judge Guido Calabresi claimed that a "simple preference for dentists over teeth-whiteners" would be a sufficiently "rational" justification for constitutional purposes, even if the challenged rule did nothing to -- and was not designed to -- protect public health.

It is difficult to conceive of a proposition more contrary to the Framers' understanding of the nature and limits of government. Jurists during the Founding era used the example of legislation that took from A and gave to B without any public-spirited justification as a paradigmatic example of illegitimate legislation. Even in its most cravenly deferential rational basis cases, the Supreme Court has always required at least a "fig leaf" of legitimacy--some assertion, however transparently false, of a public-spirited purpose for restricting the exercise of supposedly nonfundamental rights like the ability to earn a living. And yet, joining the Tenth Circuit and widening an existing split of authority, the Second Circuit held that a bare preference for the politically connected insiders is constitutionally kosher. As Judge Christopher Droney observed in his concurrence, under this approach, judicial inquiry into whether the government is pursuing a "legitimate" end (as is required under the rational basis test) is no more than a "disingenuous," formalistic ritual.

I suspect that most Americans would be outraged at Judge Calabresi's glib, surprising endorsement of rent-seeking as a legitimate government end. I also suspect that the reason the Supreme Court has neither endorsed naked economic protectionism as a legitimate government end nor entirely denied the existence of unenumerated rights is the Court's recognition of the fact that there are certain things that are beyond the scope of the government's "just powers," even in the absence of any explicit limitation. In the pithy words of Founding Father James Otis: "[P]arliament cannot make two and two, five." In an important respect, Lash's Constitution is amoral -- it would allow myriad individual rights that are central to human flourishing to be voted up or down. He is free, of course, to argue for that view -- but it is one that the Founders rejected, the Framers of the Reconstruction Amendments rejected, and the Supreme Court has repeatedly rejected, and it is fundamentally incompatible with Americans' sense of what our noble experiment is all about. If the Constitution is to fulfill its stated purpose of "securing the blessings of liberty" today, judges must reject Lash's amoral Constitution today as well.