WSJ – October 30, 2021

The Amendment That Remade America

The First? The Second? No, the 14th—the basis for every claim against a state government for violating individual rights. Randy Barnett and Evan Bernick say it’s time to assert its original meaning.

By Tunku Varadarajan | 1966 words

What’s the most important amendment to the U.S. Constitution? The First, which guarantees the freedoms of religion, speech and assembly? If you favor gun rights, perhaps the Second? Criminal-defense lawyers might be inclined to invoke the Fifth. Randy Barnett and Evan Bernick make a case for an amendment that isn’t even in the Bill of Rights—the 14th, ratified in 1868.

That amendment, among its other provisions, bars states from abridging “the privileges or immunities” of citizens or depriving any person of life, liberty or property “without due process of law.” It’s best known for guaranteeing to all persons “the equal protection of the laws.”

The 14th Amendment “not only changed the structure of our federalism, but it extended the protection of fundamental rights,” Mr. Barnett says. Before its ratification, the Supreme Court had held in Barron v. Baltimore (1833) that the Bill of Rights didn’t limit states’ authority. That started to change in 1897, as the court “incorporated” various rights, holding that the 14th Amendment’s Due Process Clause obligates the states to respect them.

By the end of the 20th century, all of the First and Fourth Amendments had been incorporated, as had most of the provisions of the Fifth, Sixth and Eighth Amendments, along with unenumerated rights such as privacy and travel. In 2010 the court added the Second Amendment to the list, and in 2019 the Eighth Amendment’s prohibition against excessive fines. Thus every challenge to a state or local law or action that alleges an improper establishment of religion, the imposition of cruel and unusual punishments, or anything in between is also a 14th Amendment challenge.

Consider New York State Rifle & Pistol Association v. Bruen, a gun-rights case on which the Supreme Court will hear oral arguments on Wednesday. It concerns “the right to bear arms outside the home, which most states protect and a few outliers do not, such as California and New York,” Mr. Barnett says. “So that’s a 14th Amendment case.”

 In District of Columbia v. Heller (2008), the high court found that the Constitution protects “individual” gun rights. “That was truly a Second Amendment case,”Mr. Barnett says, “because it was about the federal government and D.C., a federal entity. But the ruling, by itself, didn’t protect the right to keep and bear arms from any of the 50 states in the union.” That protection arrived in McDonald v. Chicago (2010), which held that the Second Amendment is enforceable against states through the 14th Amendment. (Heller and McDonald, unlike Bruen, involved the right to “keep” firearms in the home.)

Mr. Barnett says the historical evidence is overwhelming that Second Amendment rights belong to individuals. “But if there’s any doubt about that, raised by the existence of the Militia Clause of the Second Amendment, there’s no doubt whatsoever that the 14th Amendment’s Privileges or Immunities Clause was aimed at the protection of the individual right—in this case the individual rights of the freed blacks to keep and carry their own weapons.”

Messrs. Barnett and Bernick make their case in a new book, “The Original Meaning of the 14th Amendment.” They are both law professors, and both describe themselves as libertarians, though their politics differ. Mr. Barnett has long been associated with the conservative legal movement and was a leading theorist behind the 2012 challenge to ObamaCare. Mr. Bernick is a self-professed “libertarian of the left” who in 2015 testimony before the U.S. Commission on Civil Rights argued for the abolition of qualified immunity for police officers.

Mr. Barnett, 69, is a professor of constitutional law at Georgetown. Mr. Bernick, 35, teaches at the Northern Illinois University College of Law. They met at a 2016 academic conference, where they bonded over the 14th Amendment. Mr. Barnett asked the “very astute” young scholar if he’d like to collaborate on a book. Mr. Bernick readily agreed.

In addition to their libertarian inclinations, the two share a commitment to the constitutional philosophy of originalism, which Mr. Barnett defines as the belief that “the meaning of the Constitution should remain the same until it’s properly changed by amendment.” Mr. Bernick adds: “Randy and I are trying to correct what is a longstanding originalist narrative about the limited force of the 14th Amendment.” They argue instead that it was meant to be sweeping, and that even today the court’s interpretation of it is in some ways too cramped.

The justices’ misinterpretation of the 14th Amendment, Messrs. Barnett and Bernick say, began only five years after its ratification and involved three key 19th-century decisions. The Slaughter-House Cases (1873) upheld a Louisiana monopoly that regulated butchers. The justices found that the Privileges or Immunities Clause required states to respect only the rights associated with federal citizenship, not state citizenship. In dissent, Justice Stephen Field wrote that his colleagues had made of the clause “a vain and idle enactment.”

Mr. Barnett says the majority feared the “terrible consequences” of an amendment that would “greatly disrupt the pre-existing arrangement between the states and the federal government.” The majority “really wanted to restore the federalism that they were more familiar with before the Civil War.”

Then, in U.S. v. Cruikshank (1876), the court held that the Bill of Rights doesn’t apply against the states. The justices overturned a white man’s conviction on federal charges of violating the civil rights of black protesters by participating in a Colfax, La., massacre in which scores of them were murdered.

In the Civil Rights Cases (1883), the high court struck down the Civil Rights Act of 1875, which barred racial discrimination in public accommodations. The justices said Congress had exceeded its authority under Section 5 of the 14th Amendment, which gives it “the power to enforce, by appropriate legislation, the provisions” of the amendment. Messrs.

Barnett and Bernick believe the Supreme Court has never given the 14th Amendment its full effect or allowed Congress to exercise all of its delegated constitutional power to enforce it. The justices upheld the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S., decided barely five months after the bill became law, and they have effectively overturned Cruikshank through a series of incorporation cases.

But the Privileges or Immunities Clause is still moribund. In McDonald, Justice Clarence Thomas argued for overturning Slaughter-House and incorporating the Second Amendment via the Privileges or Immunities Clause rather than the Due Process Clause. But no other justice joined his opinion. Had the other conservatives on the court shared Justice Thomas’s approach, Mr. Barnett says, “our book would probably not need to be written. Our book, in some senses, is for the four justices who didn’t want to join with Justice Thomas.”

The 14th Amendment “gave Congress and the Supreme Court the power,” Mr. Bernick says, “to protect individual citizens and persons from having their fundamental rights violated by their own state governments.” This ran counter to the Constitution’s original federalist structure, under which, as Mr. Barnett puts it, states were “on their own” when it came to protecting the rights of their citizens.

“That had to be the case,” he says, “because otherwise slavery would have been unconstitutional under the original Constitution. The most egregious violation of rights that you can imagine is chattel slavery—and chattel slavery was consistent with the federalism originally established by the Constitution.” (Slavery was abolished by the 13th Amendment, ratified in 1865.)

The 14th Amendment also undid a basic political premise of the 1787 Constitution. The Framers believed, in Mr. Bernick’s words, that “the primary systematic threats to liberty were going to come from the federal rather than the state level.” Local threats to liberty, they thought, could be countered by vigorous political action. “The entire project of Reconstruction, the Civil Rights Acts of 1866 and 1875, as well as the Reconstruction’s constitutional amendments”—the 13th, 14th and 15th, which protects voting rights—“rested upon the belief that that older vision of federalism was inadequate to the needs of protecting liberty.”

The most significant misinterpretation of the 14th Amendment, as Messrs. Barnett and Bernick see it, is the judicial disregarding of the Privileges or Immunities Clause. Judges see it as an impenetrable “inkblot” (to borrow a metaphor Robert Bork used in a different constitutional context), the recognition of which would serve as a license to judges to invent new rights. In its original conception, Mr. Barnett says, the Privileges or Immunities Clause “protects rights that are fundamental to what we call ‘republican citizenship’—citizenship that’s grounded in natural rights and civil equality.”

Those include rights guaranteed by the Constitution and the Civil Rights Act of 1866, which extended citizenship to all persons born in the U.S. “without distinction of race or color, or previous condition of slavery or involuntary servitude.” They also include rights that are deeply rooted in tradition and history, as evidenced by the laws of the states.

Some of these rights are listed in the text of the Constitution, such as the freedom of speech. “Others are not,” Mr. Barnett says, “like the right of parents to raise their own children.” The key question is what the privileges of citizenship are, not what they ought to be.

Mr. Barnett says the Privileges or Immunities Clause is unpopular across ideological lines. “Conservatives don’t care for the clause,” he says, “because they think it’s going to open up the protection of unenumerated rights, some of which, let’s just say, they don’t really want to see protected.” Liberals think the clause is “going to legitimate the protection of certain rights, like economic liberty rights, that they don’t want to see protected.”

Yet the court since the mid-20th century has read the Due Process and Equal Protection clauses expansively, and the professors agree it would be impossible to imagine modern American law without it. “It’s difficult to think of a seminal Supreme Court case that does not have to do with the 14th,”Mr. Bernick says.

He names Brown v. Board of Education (1954), which held segregated schools unconstitutional; Gideon v. Wainwright (1963), which guaranteed the right to legal counsel for criminal defendants; Griswold v. Connecticut (1965), which established a “right to privacy” and accorded married couples the right to obtain contraception; Roe v. Wade (1973), which extended that right to include abortion; and Obergefell v. Hodges (2015), which found that same-sex couples have the “fundamental” right to marry.

The last two are still controversial; most legal conservatives think they were wrongly decided. “I don’t think those are originalist decisions,” the liberal Mr. Bernick says. “They make claims about the meaning of the 14th Amendment, and Roe in particular has a long discussion of the history of abortion law, but neither of them is an example of public-meaning originalism in practice. So they’re not entitled to any presumption of correctness that might attach to a good-faith, reasonable effort to determine public meaning.”

Which brings us to another pending case, Dobbs v. Jackson Women’s Health Organization. On Dec. 1, the state of Mississippi will ask the high court to uphold a law banning abortion after 15 weeks of pregnancy, in what Mr. Bernick calls “a frontal challenge to Casey v. Planned Parenthood and the rule that effectively prohibits restrictions on abortion prior to the point of viability.”(Casey is the 1992 decision that upheld what a three-justice plurality called Roe’s “central holding.”)

The legal arguments on both sides of the abortion issue are ultimately about the 14th Amendment, Mr. Bernick says. “Is the right to terminate a pregnancy among the privileges or immunities of citizenship? Are unborn fetuses constitutional people?” The answers “turn on the original meaning of ‘persons’ and ‘citizens’ in the 14th Amendment.”

Mr. Varadarajan, a Journal contributor, is a fellow at the American Enterprise Institute and at New York University Law School’s Classical Liberal Institute. ■

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