It is arguably the most important question concerning judicial review today. Should judges require the government to offer an honest, reasoned explanation every time it restricts individual liberty, or just some of the time? In a provocative two-part critical review of Damon Root's book, Overruled, Professor Kurt Lash argues for the latter view, making an originalist case for broad judicial deference to assertions of government power that do not implicate textually enumerated constitutional rights. Drawing upon his own extensive study of the Fourteenth Amendment's Privileges or Immunities Clause, Lash argues that that the clause only secures secures rights enumerated elsewhere in the Constitution. He thus praises the New Deal Court for "defer[ing] on matters involving unenumerated rights" while "remain[ing] actively engaged when it came to those rights explicitly enumerated in the Constitution." Lash identifies the New Deal Court's approach with a famous footnote (commonly referred to simply as "Footnote Four") in United States v. Carolene Products (1938).
There are compelling reasons to believe that Lash is wrong about the meaning of the Privileges or Immunities Clause, and that it is a very good thing that he is wrong. While Lash raises valid concerns about the difficulty of evaluating the legitimacy of the government's actions, that difficulty is inherent to interpreting and applying a written Constitution informed by a broad understanding of individual liberty. Neither the Framers of the original Constitution or the Reconstruction Amendments thought that liberty could be reduced to a handful of protected activities. Consistent judicial engagement in every case involving plausible abuses of government power is thus required.
Let's begin with the history. It is uncontroversial that the Republicans who dominated the Thirty-Ninth Congress (which drafted and adopted the Fourteenth Amendment) were firmly devoted to the Declaration of Independence and its conception of natural rights--rights that precede government and that are as innumerable as the actions that we can take without violating the rights of others. Republicans repeatedly stated that the Declaration's principles had been betrayed because of slavery and that those principles must be entrenched in the text of the Constitution. In the House, John Bingham, the author of Section 1 of the Fourteenth Amendment, relied upon the Declaration to support numerous versions of that provision and stated that it would protect by national law "the inborn rights of every person." In the Senate, Jacob Howard cited Corfield v. Coryell, an 1823 decision in which Supreme Court Justice Bushrod Washington 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." Although Justice Washington was interpreting Article IV's Privileges and Immunities Clause, Republicans repeatedly referred to his (inexhaustive) list of "fundamental rights." Congressman Frederick Woodbridge stated that the "object of the proposed amendment" was to protect "the natural rights which necessarily pertain to citizenship." Finally, when Schuyler Colfax, the speaker of the House, described the Fourteenth Amendment to his constituents, he called it the "the gem of the Constitution" because it placed the Declaration "immutably and forever in the Constitution."
It is also uncontroversial that the Fourteenth Amendment was designed to ensure the constitutionality of the Civil Rights Act of 1866. That legislation protected the rights to (among other things) engage in real property transactions, appear in court, and make and enforce contracts--certain of which rights appear nowhere in the text of the original Constitution. Such legislation was deemed necessary since many southern states attempted to perpetuate the institution of slavery by reducing recently freed blacks to constructive servitude through oppressive laws known as the Black Codes and also deprived white supporters of Reconstruction and abolitionists of their most basic civil rights. Had the Privileges or Immunities Clause only extended the Bill of Rights to the states, as Lash contends, it would not have fulfilled one of its key goals, that of "constitutionalizing" the Civil Rights Act of 1866.
Finally, regardless of how any particular Framer may have understood the Privileges or Immunities Clause, its language is broad and abstract. It does not simply state that the Bill of Rights shall be extended to the states -- indeed, many Republicans thought that the Bill of Rights already did extend to the states, the Court's contrary holding in Barron v. Baltimore (1833) notwithstanding. "Privileges" and "immunities" had been used to refer to natural and common law rights since the days of Blackstone--if the Framers did not want to constitutionalize those rights, it is difficult to understand why they chose such language. Lash is incorrect that this understanding would empower the federal government "to establish the national substance of everything from local contract law to marital law to public education." It would and did, however, empower the federal government to prevent systematic violations of natural and common-law rights by the states.
Lash also does not discuss the Fourteenth Amendment's Due Process of Law Clause in any detail--a remarkable omission, given the importance of the concept of due process of law to Republican thought. The concept can be traced back to the Magna Carta, and was understood by the Founding generation to prohibit restrictions of common law or natural rights that did not rationally further legitimate, public-spirited ends. As early as the 1830s, abolitionists argued that the Fifth Amendment's Due Process of Law Clause prohibited Congress from establishing or maintaining slavery because it violated natural rights. The notion that the Due Process of Law Clause protected natural rights became a thesis that was asserted in the platforms of anti-slavery parties throughout the antebellum period. Due process of law clauses in state constitutions had been interpreted to provide natural law protections for property rights before the Civil War and the Supreme Court had interpreted states' law of the land provisions to protect substantive rights. There is no reason to believe that either Bingham or any other Republican in the Thirty-Ninth Congress did not accept what influential Progressive jurists would later disparage as "substantive due process" or that the Fourteenth Amendment's Due Process of Law clause was not designed to prevent substantive unenumerated rights from being violated by the states.
It was proper, then, for state courts and, later, the Supreme Court, to use the Fourteenth Amendment's Due Process of Law Clause to safeguard individual freedom. Indeed, after the Slaughter-House Cases (1873) virtually wrote the Privileges or Immunities Clause out of the Constitution and before the New Deal Court's jurisprudential revolution, the Due Process of Law Clause was the only game in town when it came to protecting individual rights, and the Court used it to protect both "enumerated" and "unenumerated" rights. In Meyer v. Nebraska (1923), for example, the Court explained that liberty "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience." As the Constitution does not distinguish between "economic" liberty and "personal" liberty, neither did the Court. Instead, in cases like Meyer, Lochner v. New York (1905), and Pierce v. Society of Sisters (1925), it sought to determine whether governmental incursions upon individuals' peaceful pursuit of happiness had a substantial connection to any constitutionally legitimate end.
Thus, there is reason to believe that, contra Lash, both the Privileges or Immunities and the Due Process of Law Clauses are properly understood to protect unenumerated rights. Further, the consequences of adopting Lash's understanding of the Fourteenth Amendment would be grim indeed. According to his understanding, citizens do not have a right to sell margarine if states do not permit their citizens to sell margarine (or other wholesome items); use contraceptives if states do not permit them to use contraceptives; live together with members of their own family; or guide the upbringing of their children. Citizens may vote for laws that protect such activities if they wish, but they are to receive no meaningful judicial protection in places that choose to prohibit them. In vast areas of life, majoritarian might would make right.
The New Deal Court never truly embraced Lash's preferred approach. Even as it elevated textually enumerated rights to the status of "preferred freedoms" and applied heightened judicial scrutiny to burdens upon them, it did not deny the existence of other rights--not even "economic" rights, which the New Deal Court continued to acknowledge, even as it withdrew any meaningful protection for those rights by applying the so-called "rational basis test." The notion of inherent limits on governmental power is present in Skinner v. Oklahoma (1942), a decision in which the court struck down a law that provided for mandatory sterilization of certain classes of "habitual criminals." Although the Court's decision was nominally grounded in the Equal Protection Clause, Justice Douglas, writing for the Court, emphasized that the legislation "involves one of the basic civil rights of man" and engaged in "strict scrutiny of the classification" on that basis--despite the fact that there is no right to procreate spelled out in the Constitution. Skinner is commonly understood to have effectively (and properly) overruled Buck v. Bell (1927), the infamous case in which the Court upheld a law approving the sterilization of the "promiscuous" and "enfeebled" Carrie Buck, who was neither promiscuous nor enfeebled. The opinion in Buck was written by Justice Oliver Wendell Holmes, a thoroughgoing moral relativist who boasted that he had "sneered at the natural rights of man" all his life; believed, as Lash apparently does, that the Constitution does not protect unenumerated rights; and advocated practically unlimited deference to legislative majorities. On Lash's understanding of the Fourteenth Amendment, it is hard to see why Holmes was wrong.
More recently, the modern Court in cases like Lawrence v. Texas (2003) and Obergefell v. Hodges, has explicitly embraced a comprehensive understanding of liberty that does not distinguish categorically between enumerated and unenumerated rights. Lawrence, in terms that recall Meyer, brought "freedom of thought, belief, expression, and certain intimate conduct" under the heading of "liberty." Obergefell's language is broader still, affirming the "liberty" to "define and express one's identity" "within a lawful realm."
Lash is correct that cases like Obergefell bring to mind the "once-abandoned libertarian approach of Lochner v. New York" and that it raises questions about how judges are to separate legitimate from illegitimate exercises of government power. As Professor David Bernstein has observed, "The post-New Deal settlement, which basically sought to preserve judicial protection of fundamental rights and minority rights while constraining the Court's ability to broadly protect liberty and equality interests as the Justices see them is threatened by Justice Kennedy's jurisprudence." It appears Lash wants to defend that settlement and is concerned that the alternative is government by judiciary: "We become subjects waiting for the Supreme Court to tell us what we may or may not do, what we may or may not discuss and debate."
But, as we have seen, the New Deal settlement was far more unstable than Lash suggests. The Court never (as Lash does) denied that unenumerated rights were constitutionally protected--it simply gave many of them lip service, while elevating others on an ad hoc basis. To this day, the Court has never offered a compelling reason for elevating some unenumerated "personal" rights above "economic" rights that were of central concern to both the Framers of the original Constitution and the Reconstruction Amendments and of central importance to ordinary Americans' peaceful pursuit of happiness today.
In brief, we need to drop the charade. We do not have a principled jurisprudence, one that protects only enumerated rights and denies the existence of any others, or one that protects all peaceful exercises of individual freedom, in keeping with the comprehensive understanding of liberty held by the Framers. Instead, we have meaningful judicial review in a handful of cases and judicial review in name only in others -- and not for the principled (if, I believe, incorrect) reasons that Lash articulates. The result: A theoretical mess that leaves ordinary Americans utterly bewildered about what rights they hold and allows the government to trample on those which are central to Americans' perception of their country as the "land of the free," such as the rights to earn a living, run a business, and start a family. What we need is an approach that is both faithful to the Framers' capacious conception of liberty and consistent across constitutional cases, insisting always upon an honest, reasoned explanation for restrictions upon our freedom. Only then can the Constitution's gem truly shine and the as-yet unrealized promise of the Fourteenth Amendment be fulfilled.