Book Review: The Second Founding: An Introduction to the Fourteenth Amendment

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The Fourteenth Amendment is now over 150 years old. The Supreme Court has long rejected interpreting that Amendment with its original meaning. But what would an originalist interpretation of the Amendment look like? Would it be unworkable for modern problems?

In this teleforum, Profs. Steven Calabresi and Ilan Wurman will discuss Wurman's new book The Second Founding: An Introduction to the Fourteenth Amendment, in which he argues not only that we should reclaim the original meaning of the Fourteenth Amendment, but that doing so would lead to many desirable and surprising results. Professor Wurman argues that the privileges or immunities clause is not, like many originalists claim, a fundamental rights provision, but is instead an antidiscrimination provision. The implications for incorporation, economic liberty, school desegregation, and gay rights may surprise you. 

Featuring:

Prof. Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law, Northwestern University Pritzker School of Law

Prof. Ilan Wurman, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University; Author, The Second Founding: An Introduction to the Fourteenth Amendment

 

This call is open to the public and press. Dial 888-752-3232 to access the event.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a book review titled The Second Founding: An Introduction to the Fourteenth Amendment. My name is Micah Wallen, I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Professor Steven Calabresi. He's a Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law. And we also have with us our author, Professor Ilan Wurman who's an Associate Professor at Sandra Day O'Connor College of Law at Arizona State University, and is the author, again, of The Second Founding:  An Introduction to the Fourteenth Amendment.

 

      After our speakers have their opening remarks, we will then open the floor for an audience Q&A. Thank you for sharing with us today. And Ilan, the floor is yours.

 

Prof. Ilan Wurman:  Great. Well thanks so much for having me to do this Teleforum. And thanks to everyone who's participating in the call. What I'd like to do, in just five to ten minutes, give an overview of what the book does in its methodology. And then I'll try to give a preview of its argument on some of the key evidence for the argument. And then Professor Calibresi has some response, which I very much look forward to.

 

      So the overarching claim of my book, and what makes it a bit different than lots of other recent books in scholarship on the Fourteenth Amendment is that the central provisions of the Fourteenth Amendment's first section—due process of law, equal protection of the law, and the privileges and immunities of citizenship—they aren't these broad and open-ended provisions that they are sometimes thought to be. But they're also not unduly narrow. And they don't unduly, narrowly confine us to what the Framer's would have thought in 1866 or 1868.

 

      My claim is that the Fourteenth Amendment is written in the language of the law. Each of the key concepts—again, due process, protection of the laws, privileges and immunities of citizenship—has this rich antebellum legal history. And I argue each has a quite specific legal meaning. I think this is a much surer guide to understanding the meaning of the Fourteenth Amendment than plumbing the depths of the legislative history.

 

      So if I were to summarize it overall, it is a legal history of the Fourteenth Amendment's provisions in Section 1, rather than a legislative history. And my claim is that the specific antebellum legal concepts directly solved the three principled problems the Framers of the Fourteenth Amendment confronted, mainly, the economy rights of free blacks, the widespread private violence, and the concomitant denial of the protection of the laws. And the abridgement of the rights of the newly freed men and women in the Black Codes.

 

      Well, I can't, obviously, go through all of that. So let me briefly say -- set up -- basically, it's a comprehensive analysis. Because you need a complete picture. You need to know what due process means. You need to know what equal protection means to figure out what privileges or immunities, the Privileges or Immunities Clause means.

 

      And I argue the Privileges or Immunities Clause is an antidiscrimination provision. I argue it does not incorporate the Bill of Rights against the states. It was fundamentally about constitutionalizing the Civil Rights Act of 1866 that guarantees equality of civil rights under state law. But to see why, we have to know, not only what the Framers were trying to accomplish, but we have to know why due process of law, and the equal protection clause don't do that work, don't do that nondiscrimination work.

 

      So very briefly, in the due process chapter, I go through from Magna Carta to the petition of rights, to Blackstone, and I basically agree with the McConnel / Chapman -- the Chapman / McConnel view, I should say, that the due process of law is basically about process. It just meant that there had to be established law that was violated before someone could be deprived of life, liberty, or property. And that one's violation of that established law has to be adjudicated according to a certain fundamental minimum of procedure.

 

      Then in the chapter, I show three variants of the substantive due process argument, this police powers argument, this idea that it limited state legislatures to reasonable exercises of the police power. There's an argument that due process was anti-CASS legislation. And then there's an argument that the Abolitionists constitutional thinkers morphed the changing of due process into sort of a substantive due process.

 

      And I show that each of these is wrong when it comes to the police powers, and I have a paper in this that goes into more detail in the University of Chicago Law Review. I basically show that state legislatures weren't limited to reasonable exercises of the police power. It was up to them what was reasonable exercise of the police power. Municipal corporations, entities exercising delegated powers by the legislature were limited to reasonable exercises of police power. And there were some theories as to why that was true.

 

      As for the CASS legislation, it's true that there's lots of language in these antebellum cases that suggests that partial laws, as opposed to general laws, violate due process of law. But in each and every case of the dozens of cases, with maybe two exceptions that I found, one or two exceptions, these cases were all about abrogating judicial procedures for a specific person or specific class of people. And that was held to be violative due process. So it wasn't anti-CASS legislation as such. It very much was consistent with the procedural due process understanding.

 

      As for the abolitionist constitutional thinkers, it's often thought that they advanced a substantive version of due process. But when you looked at what they say, it was purely conventional due process. They might have been wrong about its application to slavery. But they said things like, what slave is there in the District of Columbia that has been deprived of his liberty with an indictment and trial by a jury of peers? This might be an incorrect application of the meaning of due process of law, but it's very much consistent. The actual argument they made is actually consistent with sort of procedural due process. So the big claim there is that there, in fact, isn't substantive due process. It's not a thing.

 

      And then the protection of the laws is intimately related to due process. Equal protection doesn't mean equality in everything. It doesn't mean equal civil rights. Equal protection of the laws is a much narrower concept. It requires equality in the protection of the laws. What was the protection of the laws? Well, it was the flip side of due process of law.

 

      Due process of law says, only the government can deprive you of life, liberty, or property. And only according to established laws and known procedures. The protections of the laws is the legal protection that the government had to accord your exercise of life, liberty, or property against private interference. Right, it's the legal protection against private people interfering with your life, liberty, and property.

 

      So quintessentially, it's about anti-mob rule. It's about police protection. And it's about judicial remedies, when someone commits a tort or commits a battery, do you have a legal remedy? Blackstone says the remedial part of the law is what we mean when we speak of the protection of the laws. Marbury v. Madison, the first duty of government is to provide the protection of the law to a citizen when he receives an injury. So the protection of the law is a very important concept, but it's much narrower than equality generally.

 

      Okay, so that is the setup to my main argument about the Privileges or Immunities Clause being an antidiscrimination provision. I think I'm maybe the only originalist scholar under 50, maybe, who still thinks incorporation of the Bill of Rights is probably wrong. And so that's why I wanted to sort of elaborate on that argument today.

 

      It's pretty conventional, it's pretty widely understood, that a key objective of the Framers and the 39th Congress was to constitutionalize the Civil Rights Act of 1866. The Civil Rights Act of 1866 was targeted at eliminating the Black Codes in the south that had arisen after abolition, that systematically gave fewer privileges and immunities, fewer rights under state law to the newly freed people than white citizens enjoyed.

 

      So here's what the Civil Rights Act -- and I'm going to quote this because the language is very telling. Here's what the Civil Rights Act of 1866 declared. It said "that all persons born in the United States, and not subject to any foreign power, and excluding any that's not taxed, are hereby declared to be citizens of the United States and such citizens,"—again, such citizens— "such citizens of the United States of every race and color shall have the same right in every state to make an enforced contracts, to sue, be parties, give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens."

 

      So note what the Civil Rights Act does and doesn't do. It doesn't guarantee any rights at all. It does not define any of the rights it lists. It instead guarantees only that whatever civil right a state happens to accord its white citizens, it must also give its black and other citizens on equal terms.

 

      And again, I don't want to harp on this too much, but it's important. Note the terminology. Professor Kurt Lash and others have written that the privileges or immunities of citizens of the United States, was a term of art referencing the Bill of Rights and other enumerated federal constitutional rights. But note how it's used in the Civil Rights Act. The Act declares anyone born in the United States to be a citizen of the United States. And then it says such citizens— again, such citizens of the United States are entitled to equality with respect to provision of civil rights defined by state law.

 

      Okay, this is how other people understood it. Andrew Johnson in his veto message said the same thing. Several other prominent members of the 39th Congress connected the privileges and immunities of citizens to the Civil Rights Bill. So why, why does the Privileges or Immunities Clause constitutionalize the Civil Rights Act?

 

      Well, first, note the formulation. Note the formulation. No state shall -- it's a citizenship clause. It declares people born in the United States to be citizens of the United States. And then it says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Exactly the formulation that existed in the Civil Rights Act of 1866.

 

      More to the point, if the Privileges or Immunities Clause doesn't constitutionalize the Civil Rights Act, if the Privileges or Immunities Clause isn't this antidiscrimination provision, then nothing else in the Fourteenth Amendment constitutionalizes the Civil Rights Act because we've already said due process of law is about process. The protection of the laws was narrow. It doesn't require equal civil rights. It just says whatever civil rights you have; you also get legal protection. So you could exercise those rights free of private interference. It doesn't mean your rights have to be equal. Just the legal protection you get for whatever rights you have must be equal.

 

      So in other words, only in antidiscrimination reading of the Privileges or Immunities Clause succeeds in accomplishing that central objective of constitutionalizing the Civil Rights Act of 1866. The People Protection Clause doesn't do the trick. So I think this means I'm going way longer than I anticipated. So I'll just briefly say what I think this means in some crucial modern cases.

 

      I think this means there's no incorporation. I think this means that there's no incorporation. Is incorporation plausible? Sure. I don't think it's the best reading of the clause. Having no incorporation today be such a crazy idea? Well, you know, there's something in it for liberals and something in it for conservatives. Under a state constitution, someone could ban -- I guess California could ban handguns. And I guess they could get rid of First Amendment protections for corporations. For conservatives, I think this means maybe you don't need Miranda warnings. Maybe this means no suppression of evidence. I don't know. The point is, why not have that sort of state experimentation? I get that that's a radical sort of conclusion. But just food for thought.

 

      I think this means, I think this means that Lochner was wrongly decided. I think it means Lochner was wrongly decided because there's no substantive due process. It's not a fundamental rights provision. But I don't think that means Slaughter-House was rightly decided. In Slaughter-House, you had a monopoly. A case of extreme economic favoritism. And that, I do think, is discrimination.

 

      In other words, the Privileges or Immunities Clause does cover discrimination, even if not regulation. Sort of a generally applicable regulation. I think this means Brown v. Board is an easy case. And by the way, if I'm wrong about the Privileges or Immunities Clause, and I'm right about equal protection and due process, then the Fourteenth Amendment clearly doesn't lead to Brown v. Board. Only an antidiscrimination reading of the Privileges or Immunities Clause leads to Brown v. Board of Education, which I think was correct under the understanding that I put forward.

 

      And finally, I'll end by saying that I think Obergefell v. Hodges is a tough case. But at least it's a plausible case. And the reason here is, not all discriminations are prohibited. Like an abridgement. You should be able to justify discriminations on the basis of police powers. A 15-year-olds can't drink. 14-year-olds can't drive. I mean there are some rational discriminations. So it's not a fool-proof case.

 

      But what if the Court had written a short two-page opinion along the following lines: The Privileges or Immunities Clause is an antidiscrimination provision, with respect to state defined civil rights. Marriage is undeniably such a privilege. It comes with a bundle of other privileges, too. Once it's recognized that being gay is not a choice, and it is not reasonable to ask gays to marry individuals of the opposite sex to obtain these privileges, then limiting marriage to a union of a man and a woman abridges the privileges or immunities of gay citizens.

 

      In other words, it gives one set of privileges to heterosexuals that it denies, arbitrarily, to gays. This is not a fool-proof case. Again, not a fool-proof case because you can have reasonable grounds for believing that there are legitimate reasons why, or state interests in why marriage maybe should be limited to a union of a man and a woman. So again, not a fool-proof case. I'm not making a claim one way or the other on the reasonableness of one view or the other.

 

      The point is, at least if the Supreme Court had decided Obergefell that way, then wouldn't we have at least gotten the feeling that what the Court was doing was an honest attempt at law, instead of just sort of making things up.

 

      Okay, I've gone on too long. And I'll pass it over to Steve.  Thanks, again, for your attention.

 

Prof. Steven G. Calabresi:  Great. Thank you very much Ilan. And I want to begin by saying that this is an absolutely superb book and I'd encourage people to buy it and to read it. As I said in my blurb for the book, it is a concise and brilliant overview of the Fourteenth Amendment's hardest questions by the brightest young scholar in law teaching today.

 

      I do however disagree with Ilan. I agree with Ilan that the Privileges or Immunities Clause is the main clause that is important in Section 1 of the Fourteenth Amendment. And I also agree with him that the Privileges or Immunities Clause incorporated the Civil Rights Act of 1866 into the Constitution. But I think the Privileges or Immunities Clause is in several ways much broader than the Civil Rights Act of 1866.

 

      The 1866 Act was only about discrimination on the basis of race and color. The Fourteenth Amendment is broader. So let me say where I agree and where I disagree.

 

      I agree that privileges or immunities are protected -- are conferred under state common law, state statutory law, and state constitutional law, are protected from discrimination. I do not agree with Ilan that the clause is only an equality guarantee and that it's not an individual rights guarantee. And I also do not agree with Ilan that the Privileges or Immunities Clause does not apply the federal Bill of Rights against the states.

 

      My disagreement with Ilan on the incorporation comes from the fact that the Privileges or Immunities Clause's ban on abridgments is not only an equality guarantee, but I think also a protection of one's individual civil rights. One can abridge, i.e. shorten, or lessen rights, one class of individuals at a time, or one person at a time.

 

      Abridged rights are like an abridged novel. Abridged novels can be abridged by omitting whole chapters, or by omitting particular words. I think Ilan is so consumed by his task of giving meaning to phrases, like privileges or immunities, due process, and equal protection, that he only covers, on pages 118 to 119, the meaning of the word abridge.

 

      So let's look at how the word, abridged, is used elsewhere in the Constitution. It clearly can apply to laws or law enforcement actions that apply to one individual at a time, or to one class of individuals at a time. The First Amendment uses the word, abridge, primarily to protect individual rights. Although it also protects the rights of class of people to engage in freedom of expression.

 

      All of the great freedom of speech and of the press cases in American history decided to protect or not to protect individual rights. Wyatt v. United States on the constitutionality of the Sedition Act was an individual rights case. Debs v. United States on speech opposing the draft in World War I was an individual rights case. West Virginia State Board of Education v. Barnett was an individual rights compelled speech case.  New York Times v. Salomon was an individual right case on the libeling of public figures. Cohen v. California was an individual rights case involving the use of obscenities.

 

      I could go on, but clearly, when the Fourteenth Amendment was written and when it banned abridgement, so freedom of speech and of the press, the word abridgment would have been understood in 1868 as applying to -- abridging individual's rights, as well as to abridging the rights of classes, or races, of people.

 

      Ilan also argues that -- so Ilan argues that the Privileges or Immunities Clause does not incorporate the Bill of Rights. But the Fourteenth Amendment makes it clear that citizens of the United States have both their rights, as citizens of the United States, and also rights as citizens of the state wherein they reside. So I think when the Privileges or Immunities Clause protects privileges or immunities, it protects your privileges or immunities of federal citizenship, as well as protecting your privileges or immunities of state citizenship.

 

      What that means, I think, is that not only is Justice Field's dissent in the Slaughter-House cases correct, but the majority opinion is correct insofar as it goes, but it does not go far enough. I think federal privileges or immunities are protected against abridgement, as well as state privileges or immunities.

 

      The majority opinion in the Slaughter-House cases gives us an example of a federal privilege or immunity, which no state can interfere with:  the right to travel to the seat of government in Washington, D.C. That is certainly, I think, a right that is a federal privilege or immunity and that the states can't interfere with. But other federal privileges or immunities include the rights mentioned in the first eight amendments to the Constitution, the Bill of Rights, and the rights mentioned in Article 1 Section 9.

 

      So it was a federal right not to have one's freedom of speech abridged or one's free exercise of religion prohibited in 1868; therefore, the Privileges or Immunities Clause banned laws that abridged that right.

 

      I think Ilan is right on his most important point, which is that the Privileges or Immunities Clause protects one's rights to enjoy the privileges or immunities of the state wherein one resides. I think this follows a fortiori from the first sentence of Section 1, which again says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. This is why, in addition to the majority being right in the Slaughter-House cases, all of the dissenters were right, as well. All rights, both of federal and of state citizenship, are protected by the Privileges or Immunities Clause.

 

      Ilan is wrong, I think however, in arguing that the clause applies only to unequal state legislation, like the Black Codes. It also applies to state deprivation of individual rights, which are abridgements, such as the deprivations of individuals rights that occurred in Williamson v. Lee Optical Company, where a state forbade opticians from creating new glasses for people who had not seen an eye doctor and received a new prescription.

 

      In sum, I think Ilan's book is concise, brilliant, and well written. It admirably and correctly defends the position taken in Justice Field's dissent in the Slaughter-House cases. Ilan errs, however, to the extent that he claims that the Fourteenth Amendment only bans unequal legislation and not deprivations of individual rights. And he also errs in arguing that the Fourteenth Amendment does not incorporate the Federal Bill of Rights against the states. I pass the microphone over to the moderator, or to Ilan if he wants to respond.

 

Prof. Ilan Wurman:  Yeah, do we have time? I want to briefly respond that all of these points are absolutely well taken, and I just want to tease out fully the implication of that view of abridge. And I think Steve hits on it and accepts the implication. He mentioned that the privileges and immunities can't refer only to federal rights.

 

      And so I guess the conclusion is, if those rights are incorporated in some way that they could be lessened, or taken away, not just by discriminating, but by treating everybody equally and just taking away an entire right, well, that means that the same has to be true of the contract rights, and the property rights, and so on, which means Lochner was rightly decided -- or not rightly decided. Maybe it was wrong on the lower order question of whether that was actually an abridgment.

 

      But that means, now, that it's up to the federal courts, not only to establish a baseline of all federal enumerated rights, but also all states civil rights. And it's just not clear to me that they thought that that's what they were doing. And that's certainly not necessary. Such a drastic result is not necessary to accomplish. What they did hope to do was just require equality in the state civil rights. And I think it means, if we incorporate the fundamental baseline, I think it means that the state could discriminate above the floor of the fundamental rights that are protected, unless, I think Steve's point is abridge has both meanings simultaneously in the Fourteenth Amendment, that is it creates both a floor that states can't reduce for anybody, and above that floor, it's still an abridgement if you give one group less than another. That's possible, but it certainly makes abridge do a lot of work. And again, I'm not sure it's consistent with their aim, their more modest aim of just constitutionalizing the Civil Rights Act.

 

      I will say, by the way, Section 2 says, and I don’t want to get too into the weeds of this sort of intra-textualism. It's not always super reliable, but Section 2 of the Fourteenth Amendment says when the right to vote is denied to any of the male inhabitants, regardless of states, or in any way abridged, then the representation shall be reduced proportionately. Well, this seems to suggest that a denial is different from an abridgement. I mean, but I don't want to read too much into it. You can always overread a text. But Section 2 seems to say a denial of a right might be distinguished from an abridgement of a right. And so that's one point of skepticism.

 

      And then it also seems to suggest that the right to vote, that the content of that right, can be seen as independent from an abridgement of that right. And so when I think of the content of the right, I think it's up to the states to decide what is the content of contract rights, and property rights, and so on. But an abridgement is when you give more of that right to one person than another.

 

      So I think Section 2 is a bit better for my reading than the First Amendment, which I grant certainly is amenable to both understandings of abridgement. But well taken. And as I said, the incorporation thesis is certainly plausible. Maybe sufficiently plausible that we could say it's liquidated in a settled question. Though it's hard to say that it's liquidated, since incorporation has happened under substantive due process. So can you liquidate something under the wrong clause? I don't know. That's a whole other question. But I'll leave it there and we'll take --

 

Prof. Steven G. Calabresi:  Yeah, as a brief response, the word abridge appears in the First Amendment, clearly applying to individual rights. And it appears in Section 2 of the Fourteenth Amendment and in the Fifteenth Amendment in an antidiscrimination sense.

 

      So I think the Constitution uses the word abridge both as to individual rights abridgements, and as to race or class abridgements. And I don't think that leads to Lochner v. New York because, as the framers of the Fourteenth Amendment were very fond of quoting Corfield v. Coryell, which is an Article 4 privileges and immunities clause case, which they said liquidated the meaning of what they were putting into the Fourteenth Amendment.

 

      And Corfield v. Coryell allows the police power to trump rights by just laws prescribed for the general good of the whole people. And the 60-hour work week for bankers was, for the reasons Justice Harlan's dissent mentions in Lochner, a just law prescribed for the general good of the whole people. So I think you don't need to buy into Lochner in order to get into incorporation of the Bill of Rights.

 

      I don't think, unless you have incorporation of the Bill of Rights, that Ilan can explain all the First Amendment cases I cited, all of which involve individual abridgements.

 

Prof. Ilan Wurman:  Well, it's interesting, on that point by the way. You might be right about the way abridged is used in the First Amendment. But the quintessential violation of the First Amendment is viewpoint discrimination, or content-based discrimination, which would be consistent with the discrimination reading of abridgment. I guess it's possible that you could have a universe in which the government says nobody can speak period. But even if they said, nobody can speak on a topic, that's viewpoint discrimination, and that seems to be an abridgment.

 

      It is hard for me to imagine a case where these can't be reconceptualized or understood is abridgments in the discrimination sense. Even a blanket law prohibiting anyone from leaving their house and talking at all wouldn't apply to the government, or officials, and then that would be an abridgment in the discriminatory sense. So it's just -- it's hard for me to conceive of an abridgment here that would also be plausible to discrimination, to characterize it as --

 

Prof. Steven G. Calabresi:  What about the abridgment in Texas v. Johnson, where the Court held that burning the flag was protected freedom of expression? Wasn't that an individual right exercised by Johnson?

 

Prof. Ilan Wurman:  Well, but again, I mean, how is that different than any viewpoint discrimination case? You could say it's an individual case with respect to the person who's trying to exercise the speech, or it's a discrimination case against a group of people who want to exercise that particular kind of expression or say those particular kind of things. So I don't know. I will have to think more about the point that you've made. But all of them strike me as plausibly discrimination cases, too. But it's totally a fair point and something I'll have to think more about.

 

Prof. Steven G. Calabresi:  Yeah, thanks. And I don't want my criticism to detract from the book, which is really an excellent book and which I would encourage people to buy and read. It's very well written and very well argued. And it's 85 percent correct in my opinion.

 

Prof. Ilan Wurman:  I'll take it.

 

Prof. Steven G. Calabresi:  I just think the Privileges or Immunities Clause not only incorporates the Civil Rights Act of 1866, it goes a lot farther than that. I think it bans systems of cast, and it protects individual rights, both federal and state. But maybe we should turn it over to the floor for questions.

 

Micah Wallen:  Absolutely. We had two hop in the queue right away. Do you want to turn to those, or did you have something to add first?

 

Prof. Ilan Wurman:  I was just going to say that Steve neglected to mention that the key virtues of the book are that it is short. It is only 144 pages. And that it is cheap. It is only $20. So really no excuse to those of you who [inaudible 0:31:50].

 

Micah Wallen:  All right, and with that, we'll proceed to our first caller.

 

Ken Masugi:  Hi. This is Ken Masugi. I have a question about the Thirteenth Amendment and how your understanding of it relates to the Fourteenth. And what I'd like to put forward is that the Thirteenth was intended to reconcile the Declaration of Independence with the Constitution. And as such, is robust enough to do what the Fourteenth and the Fifteenth Amendments did separately. And so I'm wondering how you -- what do you think of that approach to understanding the Thirteenth?

 

Prof. Ilan Wurman:  Yeah, so that's a terrific question. A classic Ken Masugi question, so thank you for that. I'll say two things, one is what they thought about it. And then I guess I can kind of give my own thoughts.

 

      So there's no doubt that when they enacted the Civil Rights Act of 1866, many in Congress did believe that it was plausibly constitutional as enforcement legislation under the Thirteenth Amendment, which again says neither slavery nor involuntary servitude, except as punishment for a crime where the party is shown duly convicted shall exist in the United States or any place subject to the jurisdiction. So again, neither slavery nor involuntary servitude. And they thought that the Black Codes were just badges of slavery, the incidents of slavery, basically a system as near as possible to slavery as possible.

 

      And that's certainly plausible. But most members of Congress, including the principle authors of the Fourteenth Amendment did not think that the Thirteenth Amendment was sufficient to constitutionalize the Civil Rights Act and the other legislation that they were attempting to do. But by the way, even if it were, even if it were enough, they all understood that a future Democratic Congress might undo all the work that they were doing through legislation. And so that's why they wanted to enshrine, specifically in the Fourteenth Amendment, the requirements on Privileges or Immunities and due process, if you will, giving teeth to the Thirteenth Amendment to the extent that that does plausibly create a hook for these anyway.

 

      As for who was right about that, I'm an originalist. I'm a textualist. I very much believe that the Constitution effectuates the Declaration of Independence. It was sort of the second half of that revolution. The Declaration of Independence set the criteria for good government, and you can imagine a number of different constitutions that meet those criteria. And I think our Constitution meets those criteria, especially as corrected by the reconstruction amendments.

 

      But as a matter of just textualism and originalism, which again, I see as the same thing, saying neither slavery nor involuntary servitude, it's a bit of a stretch. It's a bit of a stretch to, I think, lead to this idea that the states can't discriminate in the provision of any civil rights. I mean, it's a little more than the text seems to bear to me. But certainly, lots of people did believe that, the opposite of that.

 

Prof. Steven G. Calabresi:  If I could comment briefly on that, too, Ken. I think the Thirteenth Amendment argument you sketch out is very plausible. And once the Thirteenth Amendment banned slavery, I think many of the people who ratified that amendment just assumed that the results of banning slavery was that free African Americans would become citizens with equal civil rights to white citizens. But in the South, the southern states passed a series of laws called the Black Codes, where they invented a special status in between citizenship and slavery, which is probably best described as peonage under which they sought to reassert a class system.

 

      Now the Civil Rights Act of 1866 was enacted under Section 2 of the Thirteenth Amendment to correct that, and it was vetoed as unconstitutional by President Johnson who said the Thirteenth Amendment banned only slavery and didn't empower Congress to pass civil rights acts. I think Johnson was wrong and the reconstruction Congress was right, that the Civil Rights Act of 1866 was passed over Johnson's veto. But after Johnson's veto, I think the reconstruction framers thought that they needed to be even more specific about applying the Declaration of Independence to the states. And they accomplished that with Section 1 of the Fourteenth Amendment.

 

      And I'll just close by reading a speech that the Speaker of the House of Representatives, Schuyler Colfax, gave during the ratification debates on the Fourteenth Amendment. He said, and I quote, "The first section of this constitutional amendment is going to be the gem of the Constitution. I will tell you why I love it. It is because it is the Declaration of Independence placed immutably and forever in the Constitution."

 

      So I think the Fourteenth Amendment may have been repetitive of the Thirteenth Amendment. But sometimes, when you want to protect your right very badly, you have to say so more than once in order to get people, like President Andrew Johnson and the southern states to go along.

 

      So without disagreeing with you on the Thirteenth Amendment, I also think the Fourteenth Amendment applies the Declaration of Independence to the states.

 

Micah Wallen:  Thank you. We'll now move to our next caller in the queue.

 

Simon Lazarus:  Perhaps I'm the right -- it's my turn, I'm Simon Lazarus, and I had two points or questions to Professor Wurman, which I thought this was a terrifically impressive book. And that is, you say that your interpretation of the Equal Protection Clause narrows it. And I think that's not entirely true. I think that your interpretation that what the framers were concerned about was preventing the southern states from denying blacks the protection of the laws that protected other people in their exercise of ordinary rights and practices. But that means, I think, that the state action doctrine, which was used for a long, long time to prevent federal laws that were directed at private discriminatory action from being constitutional.  I think that that would mean that that state action doctrine was wrong.

 

      And the second question I wanted -- or point I wanted to make is that regardless of what their subjected intent was, or how narrow it was, if one is an originalist and a textualist, as Justice Gorsuch was last summer in a very important case, in which Chief Justice Roberts, when he was confirmed, said about applying the Equal Protection Clause, not just to blacks but also to women, isn't it true that the enacted text of the Equal Protection Clause, as it has been interpreted, is perfectly appropriate in originalist and textualist terms?

 

Prof. Ilan Wurman:  Yeah, so thanks for both of those. And I think the state action doctrine is wrong. I think it is inconsistent with the original meaning of the protection of the law. The lack of protection of the law was quintessentially when government officials fail to protect you against mob rule, against mob violence. And I think, therefore, if a state denies protection of the laws by inaction, by failing to protect, by failing to provide adequate remedies, I think the government can step in and supply protection of the law.

 

      Does that mean Cruikshank was wrongly decided? Well, sort of.  I mean, sort of. The problem there was that the Court wanted -- or I guess the rights cases rather than Cruikshank here, really I guess this applies to both of them but really the civil rights cases. The problem was, if you read the Court's decision there, is that it wasn't -- the Court seemed to assume that state remedies existed for the violation of the rights of the blacks that had been violated. And so it was really -- it can be reread as an enforcement power case. That you have to show that there's a denial of the protection of the laws.

 

      Now, of course, the case actually went much beyond that and said the Fourteenth Amendment does not deal with private interference with private rights. That is one of the most incorrect statements in all of constitutional law. The Protection of the Laws Clause deals exactly with private interference with private rights.

 

      However, that doesn't mean that case should have come out the other way, only because it wasn't clear that the states were actually denying the protection of the laws, though they probably were. Which is why I think both Cruikshank and the civil rights cases could have come out differently.

 

      And as for applying it to women, I think that's absolutely true. But I would just do it under the Privileges or Immunities Clause. Not all -- what is an abridgment? Abridgment is irrational or arbitrary discrimination. An arbitrary reduction or denial of certain privileges or immunities to one group that the government grants to another group.

 

      And it could be that in 1871, I think Bradwell v. Illinois was wrongly decided then. Myra Bradwell couldn't be a lawyer because the woman's place is in the home, so says the Supreme Court. Well, the text doesn't change, but the underlying background understandings about women, the background legal norms about marriage and women could change sufficiently dramatically, that in 1970 it becomes irrational and arbitrary to deny women the same ability to participate in the workforce than men.

 

      And by the way, the biggest key here is the Nineteenth Amendment. If women are fully brought into the regime with the highest level of political rights, then surely they get the same amount of civil rights as men do. And so I think it's perfectly plausible to apply the text to those changing factual legal backgrounds and to give women full equal rights.  And so I think Justice Scalia was wrong in the VMI case. I mean, I don't know if he was necessarily wrong on the lower order question in that case, but he was absolutely wrong to focus on historical practices and traditions to determine the content of the Equal Protection Clause.

 

      Clearly I think that has to be right to the extent we have a substantive due process doctrine. And it has to be right in substantive due process law. But in terms of Equal Protection, or what I saw Privileges or Immunities law, the text can apply to new and changing factual assumptions and understandings. And so I absolutely agree that it can apply to women.

 

Prof. Steven G. Calabresi:  So let me comment briefly on this, if I may. First, because the Supreme Court erased the Privileges or Immunities Clause in the Slaughter-House cases, it forced the Equal Protection Clause to do all the work of being the antidiscrimination command of the Fourteenth Amendment. And in fact, the Privileges or Immunities Clause was about the making or enforcing of laws which abridged privileges or immunities. And so it was the main antidiscrimination provision.

 

      The Equal Protection Clause is misread today because people focus on the adjective, equal, and not on the noun, protection. The clause is about the protection of the laws. And the protection of the laws has to be equal as to races and as to gender. And so I think that the Equal Protection Clause imposes an affirmative duty on government to act to make sure that people are being treated equally, which is part of why the civil rights cases are wrongly decided and why Cruikshank is wrongly decided.

 

      And as to gender, I'd mention even in addition to the Nineteenth Amendment argument, which I've written about before and agree with what Ilan said, you'll note that the Section 1 of the Fourteenth Amendment gives citizens privileges or immunities. It gives persons due process rights. And it gives persons equal protection of the law. Well, women are persons.

 

      And in contrast, in Section 2 of the Fourteenth Amendment, which is about voting rights, Section 2 in the Fourteenth Amendment twice uses the word male citizens in referring to voting rights. So the people who wrote Section 1 knew perfectly well how to put in the word male in Section 2 when they wanted it to apply just to men. And I think the fact they did not use the word male in Section 1 but conferred rights on citizens and persons means that they conferred rights on women as well as men from the beginning, making the Bradwell v. Illinois case wrong from the beginning.

 

Micah Wallen:  We have one more question in the queue as of now, we'll move to that caller.

 

Caller 3:  Yes, my question concerns the Professors. Your understanding of what is meant by protection of the law, it's always been my understanding that the purpose of the written law, or Constitution and laws made in pursuance thereof is to protect the individual, the private citizens, from the government and those who act in the name of the government.

 

      The government, we don't need -- I mean the government can protect people from the so-called mob, or from other private citizens. They can do so with just their monopoly on force. The Bolshevik communists under Stalin were quite effective and people were very, very safe. They didn't have to worry about their neighbors burglarizing them or committing robbery or theft. And the same was true in Nazi Germany because these were lawless states. There was no law to protect the individuals. There was a written law. But it was just -- I mean it just wasn't adhered to.

 

      And it's my understanding that the purpose of the Fourteenth Amendment, when it says equal protection of the law, it meant that the law was to protect the black people, as well as the whites, from the governments in the southern states. Because that's who was oppressing them. It was more than the private -- fellow private white citizens. It was their governments. So I just wanted to comment on that.

 

Prof. Ilan Wurman:  Yeah, of course. That's a terrific question. So I think the short answer is the Fourteenth Amendment as a whole is absolutely intended to require the government to protect the newly freed people from government abuses, as well as private abuses. It was both about state action and state inaction.

 

      My claim about the protection of the law is only that that clause is about inaction. It's about remedies in court. The government, as Steve said, has to provide sufficient remedies in Court. Has to provide sufficient protection from mob rule and private violence. And by the way, Blackstone again said, and I quote here, I pulled it up, "The remedial part of the law, that method of recovering and asserting rights when wrongfully withheld or invaded is what we mean when we speak of the protection of the law."  Remedial rights.

 

      And then in Marbury v. Madison, John Marshall wrote, "The very essence of civil liberty certainly consists in the right of every individual the claim to protection of the laws whenever he receives an injury." So it's the protection against private interference. With your private rights.

 

      But then the government is bound by the same restrictions through the due process clause. The government can't just come in and take away your life, liberty, or property. They can only do that with due process of the law, which required established law and established procedures. And that is what was missing in the totalitarian governments of the 20th century.

 

      Of course, the Privileges or Immunities Clause I think prohibits laws that, on their face, treat people unequally. So it's absolutely about both. But I think the protection of the laws is a narrower concept. I'm not sure, Steve, if you want to add anything.

 

Prof. Steven G. Calabresi:  Yeah, I'd like to comment. I agree with Ilan that the Privileges or Immunities Clause in protecting privileges or immunities against the making or enforcing of discriminatory laws is the protection of private individuals from state governments.

 

      But my reading of the legislative history of the Fourteenth Amendment suggests that the Equal Protection Clause was put into the amendment in addition to the Privileges or Immunities Clause because of a widespread perception that southern blacks and northerners in the south were being killed by the Klu Klux Klan. And that there was a real problem of private violence against free African Americans and northerners in the south.

 

      And that to correct that problem of private violence, the Equal Protection Clause obligated southern states to use their police forces, their prosecutors, and their state courts to provide protection to freed black Americans, and also to the northerners in the south. So I do see it as imposing an affirmative guarantee. And I also agree with Ilan that I think Justice Scalia's dissent in the VMI case is, therefore, wrong.

 

Prof. Ilan Wurman:  I don't know if we have any other questions in the queue, but what I will say is, some of you might have seen -- I just wanted to do a little advertisement. Some of you might have seen an exchange between me and Kurt Lash which goes over a lot of these in Law and Liberty. We will be debating this live, I think, at Hillsdale College in April. I think on April 16th, so I hope you all tune in. And if there are any lawyers, chapter leaders here, or student chapter leaders, I'm sure you could get us, or at least me, to come out and do a similar song and dance with these competing views.

 

      This is the one situation -- not one situation. But a clear situation in which you don't need a non-originalist speaker there to disagree with the originalist speaker. There's just so many competing originalist views on the Fourteenth Amendment that you could easily invite two originalist speakers to have a debate about the topic. And so if you are a student on the call, or part of a lawyer's chapter, that's just something to consider, if you are desperate for some programming as we emerge slowly from the COVID situation.

 

Micah Wallen:  We do have one more question in the queue, so I'll try and squeeze in one more person before we close today.

 

Caller 4:  Question for Ilan, there's been some written about this recently. In your view, are unborn human beings due protection under the Fourteenth Amendment? Do they come under the definition of persons?

 

Prof. Ilan Wurman:  The short answer is, I don't know. I don't know. I've not done the research. I know that Josh Craddock has a paper on this, which I've not yet read. And so I don't know. I will say, there will be something very -- I don't want to say -- I don't know what the right word is, odd, but something of a bate-and-switch if conservatives, who all this time have been saying this is a matter just to be left to the states. It's just a matter to be left to the states all of a sudden change their tune and say, you know just kidding, actually abortion is prohibited in all the states as a matter of constitutional obligations. That might be right as a matter of original meaning. I don't know. If that's your question, I've not done the research. But it strikes me as a big about face for conservatives who are today making that argument. But it's a fair question.

 

Micah Wallen:  All right. Well, I'll give one last chance also to Mr. Calabresi, is there anything you'd like to say before we close today?

 

Prof. Steven G. Calabresi:  No, I agree with everything Ilan just said.

 

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you both for joining us. And we are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.