A New (Read Old) And Improved 14th Amendment? Reviewing Barnett and Bernick's "The Original Meaning of the 14th Amendment"

 By Eric Segall

Imagine writing a 400+ page book titled "The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit," but not discussing in any detail abortion, same-sex marriage, or affirmative action. Professors Randy Barnett and Evan Bernick (Barnett & Bernick) have written such a book, and while some have criticized it for leaving out perhaps the three most controversial public policy and legal disputes centered around the 14th Amendment, I praise the authors for their decision to leave those issues for another day. Given the primary goal of the book, to provide a scholarly account of the 14th Amendment's original meaning, and given their concession that courts today will need to construct doctrines that implement that meaning, which will be underdetermined in many (in my opinion most) cases, it was appropriate for the authors to duck those contentious questions. Accordingly, if you read this book, and you should, don't be disappointed that you won't find all the answers to burning modern disputes that arise under the 14th Amendment. The book has other plans.

First, as a hardcore legal realist, I want to disclose my priors. I approach any book with the phrase "Original Meaning" in the title with great trepidation, and I don't have to explain to readers of this blog why that is so. Second, I think our world would be a much better place with more judicial deference than Barnett and Bernick advocate in their prior writings and in this book. And, third, I consider myself a personal friend to the younger of the two authors and have tried to help him in his career, and I have a complicated and somewhat strained relationship with the more senior author, but I try my very best to approach his work keeping that out of mind. 

My major takeaway is that anyone interested in the circumstances surrounding the ratification of the 14th Amendment should read this book. This is not to say that either I, or certainly other scholars who have mined the same sources, will agree with all the conclusions that Barnett and Bernick reach. But the book is fascinating, accessible when necessary and sophisticated where appropriate, and most importantly, it does what books by law professors ought to do: it makes one think, reflect, and then re-examine core assumptions. 

There is much too much content in the book for a blog post to do justice to all the covered ground. Here are some headlines that might surprise you and some that probably won't.

Before turning to their historical accounts, Barnett and Bernick provide a thumbnail sketch of their "letter and spirit" approach to constitutional interpretation. In their words, the letter of the law is "the meaning that it originally conveyed to the public." The spirit of the law "consists of the ends, purposes, goals, or objects that the [law] was adopted to accomplish--its design functions." Where the letter is clear, judges must follow it. Where it is not, judges should look to the spirit of the law, which the authors concede in many circumstances dealing with the Constitution, will lead to underdeterminacy. There, we find the famous New Originalism construction zone, and forests have been burned by legal scholars debating its contours.

I have discussed this "letter and spirit" approach at length before on this blog. My two main conclusions have not changed: virtually all of litigated constitutional law is in the construction zone, and if "spirit" is going to be our trump card over the specific expected applications of those who wrote, discussed, and ratified the text in question, then that approach is originalism in name only. Those criticisms are not relevant, however, to most, maybe all, of this book, and I do not want them to sidetrack people from appreciating the book.

The authors are concerned with Sections 1 and 5 of the 14th Amendment, which provide: 

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

The authors use founding-era, more immediate pre-ratification, and post-ratification evidence to reach their conclusions regarding what the 14th Amendment originally meant. The stories they recount, the cases they describe, and the debates they summarize make for compelling reading. Anyone interested in constitutional debates from the Founding to the end of the 19th century will find much in this book to learn, digest, and think deeply about.

I am not a historian and therefore do not feel qualified to judge the authors' historical conclusions, which are at times quite surprising. I will summarize them below to possibly entice those reading this review to pick up the book.

Like many or maybe most scholars who have investigated the original meaning of the 14th Amendment, the authors argue that the Supreme Court got everything wrong in 1873 in the Slaughter-House Cases, when it narrowed the scope of the privileges or immunities clause to a limited set of  rights pertaining to the relationship between citizens and the federal government. 

The authors argue, contrary to Kurt Lash and Ilan Wurman, two law professors who have also recently written books about the Clause's original meaning, that the Clause protects both enumerated and unenumerated rights and should do much of the equality work currently being done by the Court under the equal protection clause. Professor Lash would limit the Clause to those those rights specifically enumerated and Professor Wurman urges an equality-centric reading that would apparently allow states to violate even enumerated rights as long as they deny them to their own citizens as well as out-of-staters. 

The authors rely on the privileges or immunities clause to do a lot of the work that the equal protection and due process clauses do now, plus a whole lot more. They say that it protects all of the enumerated rights in the Constitution, all of the rights listed in the Civil Rights Act of 1866, a bunch of natural law rights relating to contract and employment, unenumerated fundamental rights, and the right of similarly situated citizens to equality in the public sphere, which they define broadly to include places of public accommodations. They define fundamental rights as those that have been demonstrably accepted as such by the polity for at least thirty years and do not conflict with enumerated rights. They concede that this definition of fundamental is a construction that, if proven unworkable, should be changed.

The authors use this reading of privileges or immunities to argue that circa 1868 "a citizen had a civil right to participate in public schooling and other public institutions even if a particular political establishment dominated by a majority or minority faction would rather not allow it." And, this, of course, is how they suggest Brown v Board of Education can be justified on an originalist basis even if the expected application of the 14th Amendment as a whole by the people at the time was that it allowed segregated schools. I will only repeat what I said above--that if today's judges are free to discard known expected applications by raising levels of generality as times and values change, the differences  between originalism and non-originalism all but fade away.

I do not have the expertise to choose among the authors' interpretations and those of Lash, Wurman, and many other 14th Amendment scholars who have reached quite different conclusions. For now, I think it is enough to say that I found Barnett and Bernick's discussion of the privileges or immunities clause interesting, provocative, and certainly plausible (although the Court is a long way from accepting most of it).

Given their capacious reading of the privileges or immunities clause, Barnett and Bernick's accounting of the original meaning of the equal protection and due process clauses, with one major exception noted below, feels almost anti-climactic though, as the authors say, there is something to clearly grounding rights in the correct places. 

As for equal protection, the authors argue that the clause requires state governments to 1) impartially execute nondiscriminatory state laws protecting life, liberty, and property; 2) provide people with equal access to courts; 3) not enact laws that unreasonably leave the personal security of some more uncertain than the security of others; and 4) not deny people security-related benefits derived from valid federal legislation. 

The major doctrinal shift that would definitely change much of constitutional law is that the authors argue that the Court's holdings in The Civil Rights Cases and United States v. Morrison were incorrect because Congress has the power under Section 5 of the 14th Amendment to enforce the limits of the equal protection clause, which includes the states' failure to remedy private action that violates those rights protected by the clause. In other words, the authors believe that equal protection means the state has affirmative obligations to protect people from private actors and thus reject the very restrictive version of the state action requirement that the Court has adopted since 1883.

If the Court were to accept this framework (it will not), coupled with the authors' reading of the privileges or immunities clause, the constitutional landscape would change dramatically. Barnett and Bernick's well-known libertarian priors would be furthered by all of this as judges would protect a lot more rights than they do now. On the other hand, Professor Barnett has long argued for a narrowing of federal power and this interpretation of the 14th Amendment gives Congress far more authority at the expense of the states than current Supreme Court caselaw allows. Reading the book carefully trying to spot where the authors' priors came into play, I have to say that I think they both simply went where they thought the evidence led. 

As for the due process clause, which the authors call the "due process of law clause," and the notorious doctrine of substantive due process, the authors would replace all of that with their readings of the rest of the 14th Amendment as well as this move: there must be a judicial proceeding or process of some kind before the state deprives anyone of life, liberty, or property in an arbitrary manner. What is arbitrary will of course have to be flushed out by judges in action but the authors are clear that the "any conceivable" basis review of Williamson v. Lee Optical, Inc., should be replaced with a real and more searching rational basis review. Economic legislation would be harder for judges to uphold under this reformulation.

I am not sure how I feel about this move. On the one hand, as I have conceded on many occasions, even for a Thayerian like me, I am quite troubled by the Court saying it is reviewing a law when in fact it is not really doing so. I agree with the authors, and my friend Clark Nelly, that Williamson falls under that category.

On the other hand, I am quite apprehensive about giving judges the power to overturn laws on the basis of a real rational basis review that could quite quickly escalate to the type of judicial aggression we saw from the Lochner Court. Where I end up here though is not important. This section of the book is transparent and readers can judge for themselves how persuasively the authors make their case.

Throughout the book the authors did enough to make me rethink some core assumptions that I held about the Fourteenth Amendment but not too much for me to conclude their work was result oriented. I learned a lot of important history while not feeling like I was being played. And, I found the authors' arguments provocative and at times compelling, even where I disagreed with their methods, conclusions, and especially their labels. "The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit," is, to put it simply, an excellent book.