At Reason, Damon Root replies (sharply) to Kurt Lash's review of his book: Yes, the 14th Amendment Protects Economic Liberty. From the introduction:
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.
Let's start with Lash's claim that "the views and political make-up of the Congress that produced the Fourteenth Amendment made it extremely unlikely that they would produce a clause nationalizing the general subject of unenumerated civil rights in the states." According to Lash, the Republicans of the 39th Congress, who passed the legislation that became the 14th Amendment, went to great efforts "to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights."
But that's absurd. 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."
Which brings us back to Lash. In the professor's view, the 14th Amendment cannot be read to protect unenumerated rights. Yet Senator Jacob Howard, a leading Republican who played a crucial role in the amendment's passage, plainly discredits this view. According to Howard, the 14th Amendment compels the states to respect both "the first eight amendments" (enumerated rights) and other fundamental rights that "are not and cannot be fully defined" (unenumerated rights).
In short, the evidence all points in the same direction: The 14th Amendment was designed to protect a broad range of fundamental rights from state abuse, including the very sort of unenumerated economic rights that Professor Lash tries—and fails—to disparage.
Posted at 6:51 AM