Editor’s Note: This essay is a response to our symposium, “The Contested Legacy of the Fourteenth Amendment.”
It is difficult for a political scientist and William Rehnquist fan to respond to Randy E. Barnett and Evan D. Bernick’s new book, The Original Meaning of the Fourteenth Amendment.
Rehnquist, the longtime former Supreme Court Chief Justice, is perhaps best known for his concern in United States v. Morrison that broad conceptions of the Court’s so-called Fourteenth Amendment “incorporation doctrine”—supported by these authors—has the potential of “obliterating the Framers’ carefully crafted balance of power between the States and the National Government.”
From John Marshall Harlan’s limited sense of incorporation in the late 18th century, to Justice William Douglas’s 20th-century discovery of mysterious “penumbras” and “emanations,” to today’s expansive “equal protection” and “due process” interpretations, innumerable ultra-Constitutional “rights” enforceable upon the states seem to “emanate” from the Court, severely hampering if not obliterating the federal balance.
Barnett and Bernick actually agree the due process and equal protection clauses have been over-interpreted, but they would substitute an even more powerful Fourteenth Amendment incorporation power using its “privileges or immunities” clause instead. The authors agree with critics that the 20th-century incorporation was not properly derived from the Constitution but insist that a proper reading of the privileges or immunities clause based on historical sources does support incorporating many of the rights that have been established under the due process or equal protection clauses. And, contrary to present court doctrine, that proper reevaluation would also justify incorporating the stronger property rights actually existing in the Bill of Rights.
In reviewing the book, appeals court justice Raymond Kethledge agreed with the authors that the framers of the amendment did incorporate the rights already enumerated in the Constitution. But he found “more doubtful” the authors’ claim that “fundamental rights” that are merely “deeply rooted in the nation’s history and traditions” but not in the Constitution itself were incorporated too. Indeed, he objected, that assumption was “precisely the formulation” used by the Supreme Court to justify substantive due process—which has “proven woefully inadequate as a device to restrain judicial will.” Indeed, Kethledge charged, “The authors offer even broader formulations, particularly when they invoke the amendment’s “spirit,” comparing their expansion of judicial power to Justice Douglas’s open-ended penumbras.
The nonexpert can conclude that whether it is “due process” and “equal protection” or “privileges or immunities,” Douglas has prevailed. Whatever the justification, the result is that the national courts decide what history and what traditions become national rights binding upon states regardless of the fact they do not appear in the Constitution. Even in a recent Law & Liberty‘s symposium, three of the four participants more or less supported—or would go even further—in granting the Supreme Court wider power to define and enforce broad “rights” upon states.
The symposium holdout, Patrick Henry College political scientist Jesse Merriam explained his reluctance by presenting a helpful five-sequence view of the incorporation doctrine’s history. Following ratification of the amendment, the national courts first kept to the original 1789 view of federalism with very limited national oversight of state authority. A second generation enforced economic limits on property regulation but generally operated within the original sense of federalism. Radical change did not come until the middle of the 20th century. This third phase was inspired by civil rights movement statutes requiring states to meet national requirements protecting African American rights and then other minorities and institutions. This represented a radical “second founding” by using Fourteenth Amendment incorporation to dramatically limit states’ powers to define civil and social rights. In a fourth period, the success of this progressive-led period of “judicial activism” under Justices Douglas, Brennan, and Marshall, provoked a conservative reaction supporting “judicial restraint” under Rehnquist, Scalia, and others.
As the conservatives won more seats on the Supreme Court, however, they “began embracing a robust Fourteenth Amendment that could be harnessed against state regulations that they opposed, such as state restrictions on business, guns, and religion,” Merriam continued.
In this fifth phase, neither side is interested in leaving their preferred issues to the political process outlined in the 1787 Constitution. In our ‘jurisotocracy’ phase, the left-right axis in constitutional law no longer operates according to judicial activism/judicial restraint or a broad/narrow Fourteenth Amendment. Rather, in our current phase, legal debate is now structured as a war over how to wield the federal judiciary’s mighty Fourteenth Amendment sword.
In this political science context, one rejected by the book’s authors, Merriam finds that the true thrust of the Barnett and Bernick book is an attempt to create a sixth period to resolve the war. They do this by coopting the political left by defining the “privileges or immunities” clause as including what are currently considered due-process/equality rights. Their new version of “privileges or immunities” mostly adds rights in the economic sphere, which should be appealing to many on the right. So, Merriam concludes, “The ‘compromise’ provided in this book would therefore provide some significant wins for libertarians, lots of significant wins for liberals, and absolutely no significant wins for conservatives.” In fact, he claims, it is the triumph of Arizona Supreme Court Justice Clint Bolick’s libertarian “principled judicial activism” project.
All this does not seem to leave much room for Rehnquist’s Fourteenth Amendment federalist conservatism. Justice Neil Gorsuch is often considered close to the Bolick camp. Even the more conservative Samuel Alito was the Justice who wrote the opinion for the Court applying the Washington D.C. Heller gun-rights decision to the states in McDonald v. Chicago. Its official court summary concluded that “almost all of the Bill of Rights’ guarantees met the requirements for protection under the Due Process Clause” and must “be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
Even the most conservative Justice, Clarence Thomas, felt it necessary to support the majority in McDonald, although in a concurrence. Here, Thomas rejected a due process argument and substituted a “privileges or immunities” incorporation replacement. Barnett and Bernick would clearly agree with that basic position, but Thomas restricted those incorporated rights to the ones actually listed in the Constitution, which they would not.
Thomas agreed with Alito that the Second Amendment was “fundamental” and “deeply rooted in this Nation’s history and traditions,” but argued the due process clause only refers to “process” and thus cannot restrict state legislation as Alito asserted. Rather, the right to keep and bear arms limits the states because it is a “privilege” of American citizenship. Thomas found that his survey of legal authorities at the time of ratification plainly showed that the ratifying public understood the privileges or immunity term to protect only constitutionally enumerated rights, primarily in the Bill of Rights, including the right to bear arms.
Thomas thus expressed sympathy with the Rehnquist concern of maintaining the original federalist sense of the Constitution, trying to provide some limit to the Supreme Court’s ability to contrive rights out of penumbras and traditions. Yet given Barnett and Bernick’s incorporation of additional traditions, it is unclear whether Thomas could convince even his fellow originalists to narrow the Fourteenth Amendment’s judicial power. Section 5 of the amendment does give Congress the power to enforce the Fourteenth with legislation: Perhaps the elected legislature might suggest limits. Obviously, a new constitutional amendment could clarify provisions and limits; and such a process could even start in the states. But there seems to be little interest in these formal non-judicial approaches today.
We seem left with political checks and balances as the only means by which judicial power can and has been limited. As president, Lincoln issued a passport to a former slave and issued the Emancipation Proclamation by simply ignoring the Supreme Court’s Dred Scott decision. Franklin Roosevelt refused to enforce the Court’s gold clause decision. Congress has passed de facto overrides of major Supreme Court decisions with simple legislation, although fewer since 2000. Congress also has unlimited power to restrict the appellate jurisdiction of the Court under Article III (2), recognized by the McCardle decision. Even states have many ways to avoid or endlessly delay decisions they oppose, as the northern states—and even my Maryland—did to limit Dred Scott.
With the country divided into red and blue states and ideological groupings representing very different values, controversial national decisions imposed upon all uniformly by an unelected court are sure to alienate large portions of such a diverse national citizenry. Under these conditions, limits seem essential. Relying on a Supreme Court to enforce uniform national opinions on rights when there is no consensus seems more like an invitation to civil war than to civil rights.
Like Rehnquist, Thomas has called for some sense of limits on national court decisions that use unenumerated rights to distort the “carefully crafted balance of power between the States and the National Government” set in the original Constitution. How to do so wisely is the challenge of our time.