At NRO, Ed Whelan has started a series of posts on Kurt Lash's book The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Here they are so far:
Related: James W. Fox Jr. (Stetson University College of Law) has posted Publics, Meanings & the Privileges of Citizenship (Constitutional Commentary, Vol. 30, pp. 567-610, 2015) on SSRN. Here is the abstract:
In this essay I review Kurt Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Lash has written perhaps the most important work to date on the background of the Fourteenth Amendment’s Privileges or Immunities Clause. This essay summarizes the basic insights and arguments of the book and then presents a critique of it on two levels. First, it argues that the background of the Privileges or Immunities Clause is more ambiguous than Lash suggests and that this background does not support Lash’s rejection of natural rights interpretations of the Clause. Second, and more fundamentally, the essay argues that Lash — consistent with some other contemporary originalists — assumes an overly narrow concept of the historical public in his pursuit of the public meaning behind the Clause. Given the formal and informal exclusions of women and minorities from public discourse and decision-making, it is impossible to speak of a unitary “public.” We should consider instead how to identify and incorporate multiple publics and to consider what such a multi-public or counterpublic approach to historical meanings might look like.
Posted at 6:18 AM