At Law & Liberty, Kurt Lash: An Incomplete Introduction to the Fourteenth Amendment (reviewing Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment). From the introduction:
Scholars seeking to master commentary on the original meaning of Section One of the Fourteenth Amendment confront a bewildering array of theories and schools of thought. Like the college freshman walking about the quad on “Club Day,” the budding Fourteenth Amendment historian is wooed by the competing voices of the “Libertarian Club,” the “Substantive Due Process Club,” the “Equal Protection Club,” and the “Incorporation Club”—all trying to out-shout one another in their attempt to win the affection of the young academic.
The newest voice in this cacophony of Fourteenth Amendment choristers is that of Arizona State Law Professor Ilan Wurman. In his new book, The Second Founding: An Introduction to the Fourteenth Amendment, Wurman wanders about the quad visiting the various organizations and, finding none of them completely satisfactory, decides to start his own. It is a short and breezy book (144 pages) that serves as a kind of introduction to Fourteenth Amendment scholarship and the various approaches to this endlessly fascinating and complicated Amendment. Although historians will find nothing new here, students of Fourteenth Amendment theory will come away with a deeper appreciation of how utterly fractured this corner of constitutional scholarship has become.
Unfortunately, they will learn relatively little about the history of the Fourteenth Amendment. Instead of introducing the reader to the dramatic story of the framing and ratification of the Fourteenth Amendment, Wurman focuses his efforts on the legislation of the Thirty-Ninth Congress. The result is a book that says a great deal about the men and ideas behind the Freedmen’s Bureau Bill and the Civil Rights Act, but almost nothing about the events that drove the framing of the Fourteenth Amendment or the men that explained the meaning of its text to the ratifying public. Wurman is an excellent writer and his book constructs much of the proper historical background, and he fills his stage with many of the key supporting players. The stars of the Fourteenth Amendment, however, are left standing in the wings.
And from further on:
Wurman’s more controversial position involves his reading of the Privileges or Immunities Clause. Unlike most constitutional scholars, Wurman rejects the theory of “incorporation,” the application of the Bill of Rights against the states. Instead, Wurman reads this enigmatic text as a kind of equality provision where state citizens are guaranteed equal access to state-defined “privileges and immunities.” Whether a state’s citizens enjoy freedom of speech thus depends on state law, and not the federal Constitution.
Wurman arrives at his “equal state rights” reading of the Privileges or Immunities Clause by combining the antebellum reading of the “privileges and immunities clause” of Article IV (the so-called “Comity Clause”) with what he believes were the key intentions of the Thirty-Ninth Congress. Antebellum Americans commonly viewed the Comity Clause as an “equal treatment” provision. Concerns about equal treatment also dominated the legislative agenda of the Thirty-Ninth Congress as illustrated in equal civil rights statutes like the Freedmen’s Bureau Bill and the 1866 Civil Rights Act. The words “privileges” and “immunities” retained an antebellum equal rights connotation due to use in the “privileges and immunities” clause of Article IV. The “Privileges or Immunities Clause” of the Fourteenth Amendment simply transforms what had been the equal “privileges” of out-of-state citizens into the equal “privileges” of in-state citizens.
Wurman is certainly right to claim that the Thirty-Ninth Congress was concerned about equal rights and the need to respond to the invidious southern “Black Codes.” The issue, however, is whether in 1866 this was Congress’s only concern. Determining the answer to that question requires expanding ones investigation beyond the legislative output of Lyman Trumbull’s Senate Judiciary Committee which produced the Freedmen’s Bill and Civil Rights Act. It turns out that other members, and other committees, had much more on their minds than just the eradication of discriminatory codes.
The problem with Wurman’s approach is that he uses the intentions of one set of framers (those who framed the Freedmen’s Bureau Bill and Civil Rights Act) as a proxy for the intentions of a completely different set of framers (those who framed the Fourteenth Amendment). In fact, these two groups had different agendas, embraced different constitutional theories, and often publicly disagreed with one another. Understanding this history is essential to anyone trying to make sense of the actions of the Thirty-Ninth Congress.
Professor Wurman responds: Reading the Wrong Play. From the introduction:
Kurt Lash’s review of my new book ably restates his own position, which has become conventional wisdom among originalists: that the Privileges or Immunities Clause of the Fourteenth Amendment incorporates the Bill of Rights against the states. Unfortunately, the review less ably conveys the argument against this view, which it is the objective of my new book to put forward. Lash claims that, in largely ignoring the stories and statements of John Bingham and Jacob Howard, I have produced something akin to “Hamlet without the Prince.” That may be, if Hamlet is what we’re reading. But the central argument of my book is that the key to understanding the Fourteenth Amendment is the antebellum legal histories of its terms, not the legislative history in which Bingham and Howard are important players. Lash and many other contemporary Fourteenth Amendment scholars, I argue, have been reading the wrong play all along.
Posted at 6:21 AM