Pushing Back on Overruled: Does the Constitution Protect Economic Liberty?

Root takes the reader on a lively ride through the history of libertarian lawyers and their struggle, as the book’s title puts it, to “control” the Supreme Court. As one might expect, this is not a serious investigation of either the Constitution or contemporary legal theory. It is, rather, a sort of biography of the current libertarian movement and its legal heroes. Readers will meet the legal movement’s intellectual grandfather, Supreme Court Justice Stephen Field, modern libertarian luminaries like William H. “Chip” Mellor, Roger Pilon, Clint Bolick and Randy Barnett, and they will learn about the establishment of major libertarian organizations like the Cato Institute and the Institute for Justice.

Damon Root, responds in a July 13, 2015 post on Reason’s Hit & Run blog, and suggests Overruled is serious:

Lash’s complaint boils down to this: “Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights.” According to Lash, the 14th Amendment offers no such protection. State and local officials, in his view, should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.

The problem with Lash’s view is that he’s wrong on the history and wrong on the law. Lash’s slipshod take on the 14th Amendment falls apart under scrutiny.  

Strong arguments but different perspectives on the “original intent” of the framers of the 14th Amendment. Damon Roots argues Republicans of the 39th Congress were focused on protecting economic freedom:

The 14th Amendment was drafted in 1866 and ratified in 1868. It was added to the Constitution in response to the mounting outrages then occurring throughout the former Confederacy, where state and local officials were, among other foul deeds, attempting to restore slavery in practice—though not in name—by imposing a tangled web of laws and regulations known as the “Black Codes.” In Overruled I examine this historical period in some detail; for our purposes here, it’s sufficient to say that, among other things, the Black Codes inflicted terrible harms on the economic freedom of the freedmen. The Black Code of Opelousas, Louisiana, for example, made it illegal for blacks “to rent or keep a house within the limits of town under any circumstances.” That same ordinance required would-be black merchants and entrepreneurs to get the permission of white officials before they were permitted to “sell, barter, or exchange any articles of merchandise.” Needless to say, such permission was not forthcoming from those racist white officials, who were in no hurry to see black residents enjoy any degree of economic liberty.

Kurt Lash counters:

Like other libertarian theorists, Root tries to argue that the framers of the Fourteenth Amendment intended the Privileges or Immunities Clause to nationalize an undefined set of natural or fundamental rights—rights enforceable against both national and state governments. 

According to Root, the Supreme Court erred when it failed to embrace this interpretation in The Slaughterhouse Cases and erred again in the 1930s when the New Deal Court rejected Lochnerian libertarianism. 

The author is wrong, though, about the framers of the Fourteenth Amendment, and about the original meaning of its Privileges or Immunities Clause. That particular clause restored and strengthened what moderate Republicans believed was the proper federalist balance of national and state authority—a balance betrayed by the slave-holding Southern states. 

The members of the Thirty-Ninth Congress who proposed, drafted, and deliberated upon the Fourteenth Amendment held varying views of national power and the value of constitutional federalism. Conservatives wanted immediate readmission of the states of the former Confederacy with no serious alterations in state autonomy beyond the abolition of slavery. Radical Republicans, on the other hand, rejected federalism and pressed for congressional control of every aspect of social life in the South. Finally, moderate Republicans continued to believe in constitutional federalism, but they insisted on an amendment forcing Southern governments to grant all persons the natural rights of due process and equal protection, and to guarantee to all American citizens their constitutionally enumerated rights. 

Of these three positions, the moderates had the votes and they controlled the final decisions of the Thirty-Ninth Congress. 

One such moderate was Representative John Bingham (R-OH), the author of Section One of the Fourteenth Amendment. As he repeatedly reminded his colleagues, Bingham believed that the biggest problem with the pre-Civil War Constitution was its failure to expressly require the states to enforce the federal Bill of Rights (followed closely by its failure to grant Congress the power to ensure that the states did so). Neither Bingham nor the majority in Congress wished to nationalize unenumerated civil rights in the states.

In fact, Bingham and the moderates successfully forced Radical Republicans to remove the term “civil rights” from the proposed Civil Rights Act of 1866 in order to avoid even the implication that Congress had, or ought to have, authority over the innumerable subjects of common law rights. 

Damon Root quotes John Bingham as a supporter of liberty of contract:

None other than Republican Congressman John Bingham of Ohio, the author of the 14th Amendment’s Privileges or Immunities Clause, openly stated that the 14th Amendment protects unenumerated economic rights against infringement by the states. “The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States,” Bingham explained to the House of Representatives, include the “constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

Students are encouraged to read both posts to get a sense of divergent views of the federal courts’ proper authority and responsibility to protect economic liberties from both federal and state government legislation and regulations.