How the 14th Amendment Changed America (with Randy Barnett and Evan Bernick)

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0:00:00.0 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Randy Barnett, the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, and Evan Bernick, Assistant Professor of law at Northern Illinois University College of Law. Together they are the authors of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. Welcome to Free Thoughts, gentlemen.

0:00:27.9 Randy Barnett: Thanks for having us.

0:00:29.7 Evan Bernick: Thanks for bringing me, Trevor.

0:00:32.5 Trevor Burrus: Since my audience are not necessarily lawyers, let’s start at the beginning so everyone’s on the same page. What is the Fourteenth Amendment, before we get into its letter and spirit?

0:00:43.1 Randy Barnett: The Fourteenth Amendment is an amendment that was proposed by Republicans after the abolition of slavery to combat white supremacy that had been around… Had arisen in response to the abolition of slavery. In other words, most people thought, most anti-​slavery activists thought that if slavery was abolished, things would be good. And it took the Civil War to effectuate that. And yet, somewhat to everybody’s surprise, with the formal abolition of slavery came the re-​imposition of something close to slavery, as close as possible, using what was referred to then as the Black Codes, which were discriminatory laws, as well as organized terrorism that was aided and abetted by law enforcement, government law enforcement agents.

0:01:34.1 Randy Barnett: And as a result, the Republicans responded with a series of civil rights laws, some of which the constitutionality of which was called into question by President Andrew Johnson. And then in order to reinforce the constitutionality of what they’d done, as well as to enshrine it in the Constitution so it could no long… So it could not later be undone, once the Democrats got back into power, they enacted the Fourteenth Amendment.

0:02:00.7 Trevor Burrus: Now, in terms of popular understanding, what sort of things have been held under the Fourteenth Amendment? I mean, it’s a very important amendment. People talk about the First Amendment and the Second Amendment, and they maybe know what those are, though civil, civic literacy is not super high. But what sort of rights that we currently have have been found in the Fourteenth Amendment under current jurisprudence?

0:02:20.3 Randy Barnett: Well, one of the things that it’s important for readers to know before they undertake this book, is most of the constitutional law challenges that they’ve been exposed to are actually Fourteenth Amendment challenges. So most of the First Amendment challenges, any First Amendment challenge against the state, any Second Amendment challenge against the state, any Fourth or Fifth Amendment ruling against the state, those are not, strictly speaking, First Second, Fourth, or Fifth Amendment challenges, they are Fourteenth Amendment challenges. Because prior to the Fourteenth Amendment, none of those rights were held to be protected against the states in federal court or by Congress.

0:03:00.9 Randy Barnett: They were considered to be something that states had to respect, or not, as they wished. The Fourteenth Amendment changed our structure of government to provide federal enforcement of fundamental rights, among which are the freedom of speech, the right to keep and bear arms, the right to be free from unreasonable searches and seizures, etcetera.

0:03:20.4 Trevor Burrus: The interesting subtitle of your book, Its Letter and Spirit, may cause some originalists, of which the book is an originalist’s book, but may cause some originalists some heartburn, because for many originalists, the problem with constitutional interpretation is too much spirit and not enough letter. So what are you getting at by talking about its letter and spirit?

0:03:43.9 Evan Bernick: We are acknowledging the reality that lots of the cases that make their way through litigation are not easy to answer on the basis of original meaning, for a number of different reasons. One is that these questions are raised in the context of litigation. That means the evidence that’s brought to bear is imperfect, it’s driven by the adversarial system, and there are going to be gaps in any effort to accurately approximate the original meaning, number one. Number two, as Madison recognized and emphasized in Federalist 37, now language is inherently imprecise. There are always going to be borderline cases for which reasonable arguments could be made back and forth about whether a word covers or doesn’t cover a particular thing. And the other driver of what we refer to as under-​determinacy, as distinct from indeterminacy, where everything is up for grabs in the Constitution, is simply the reality of the ratification, the framing and ratification process.

0:04:43.1 Evan Bernick: You’ve got a multi-​member body of people who have different… Differing, although cluster around the same basic principle views. You have a number of ratifying conventions. There are going to be uncertainties and unclarities or lack of clarity in the constitutional text. And then you have a choice. You’ve got to fill it with something. And what we argue is that what we should fill the gaps in the constitutional text with are rules, principles that are grounded in what we can gather about the original purpose or functions of the constitutional text, as a lumens by examination of some of the same evidence that we would gather and consider in the context of figuring out what words or phrases mean.

0:05:30.8 Evan Bernick: So when we appeal to the spirit, we are not appealing to moral principles unmoored from anything other than the judge’s perception of what is right and good in the world, but rather, we are going to origins in the same way that was actually common in the way that common lawyers and Founding era jurists approached questions of statutory and constitutional interpretation.

0:05:56.0 Randy Barnett: Now, let add to that, that it’s important to stress the relationship between the letter and the spirit, and that is that the letter comes first and the spirit is the way of implementing the letter. The spirit does not override or trump the letter of the Constitution, which is how spirit has typically been used, that is… Living constitutionalists or non-​originalists claim to be faithful to the Constitution because they say they’re faithful to the underlying principles for which the text was adapted to accomplish, and therefore they can so hope… They can put the text aside and pursue their vision of these principles.

0:06:37.9 Randy Barnett: And so not only do we say that it’s the original principles that govern and not the interpreters’ principles that govern, that’s one important part of our theory, which Evan just stressed, but also that these principles don’t trump or supersede what the original meaning of the text is. They must be there to amplify it and to be a means of applying that text.

0:06:58.6 Evan Bernick: And I would just put the point even more sharply. I don’t think that any textualist or textualist originalist is really committed to the position that there are no structural inferences that we can draw from text, no purposes that can be reasonably attributed to text, no assessments that we can make about what laws are designed to do. They are primarily worried about emphasizing purpose, structure or function to the detriment of a careful investigation into patterns of word and phrase usage. And we try our best to emphasize that that investigation into patterns or phrase usage, semantic meaning always comes first before we even get into the other stuff.

0:07:48.0 Trevor Burrus: Is there an implication here that, for some originalists at least, they have oversold the determinacy of the text? There seems to be an interesting sort of part of your book is that you start with the text and move on to the construction and the spirit, but a lot of originalists really sort of say, well, just read the Constitution, and there it is. And that seems to be overselling not only what they intended to write, meaning they weren’t writing something so determinate that you couldn’t read anything into it, and the ability to interpret the Constitution via construction and within its spirit was part of the point of when they said people would be interpreting this in the future.

0:08:29.1 Randy Barnett: Yes, it’s true that many textualists/​originalists do seem to overestimate the determinacy of the text, but they’ve been doing that for a very long time. And the argument about under-​determinacy and why that makes necessary what we call constitutional construction, has also been around now for a very long time. It’s been around since at least 1999, when Keith Whittington introduced that distinction into originalist scholarship. It’s a distinction that long pre-​dates us, it’s a distinction that you can find explicitly discussed as early as 1830s, in the 1830s in the work of Francis Lieber, and I think it was implicit in how the Founders discussed meaning and construction.

0:09:14.5 Randy Barnett: But it’s been over 20 years that originalist theory has taken into account under-​determinacy, it’s just that armchair… Some armchair originalists or originalists that are not scholars, or people that are not paying that close attention to the debates, or people that just want to claim that the text is more determinate than it is, they have… Not all of them have gotten with the program.

0:09:39.3 Evan Bernick: I was just going to say, from the other direction, non-​originalists tend to over emphasize the text’s lack of determinacy. And they will say things, for instance, like the Equal Protection Clause is vague or ambiguous because it guarantees equality, and people can reasonably disagree about what equality means. Well, yes, people can reasonably disagree about what equality means, but the text says, “Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” And that text in context has a history and a use by reconstruction Republicans that is considerably more determinate than equality full stop.

0:10:19.8 Evan Bernick: And research into the original meaning of the Fourth Amendment and its guarantee against unreasonable searches and seizures, which Laura Donahue has argued simply means searches that are contrary to the precepts of the common law, or the inquiry into the Cruel and Unusual Punishments Clause, which John Stinneford has determined actually tracks deviations. Some deviations from long-​standing punitive practices tend to have more determinacy than non-​originalists give them credit. So if originalists are over-​emphasizing, sometimes non-​originalists underemphasize, and we try to find our way into a happy medium.

0:11:02.4 Randy Barnett: And just so I say that, this is where the book comes in, because among the provisions that are most often claimed to be open-​ended and way under-​determinate, if not indeterminate is… Are the provisions of the Fourteenth Amendment. So the reason why our book is necessary and the reason why, unfortunately or fortunately, our book is on the long side, is because it’s important for originalists to understand and appreciate how determinate the language of the Fourteenth Amendment really is, and that’s what we show in our book.

0:11:35.6 Trevor Burrus: In the course of this, yeah, we’ll get into some of these clauses and do the interpretation and construction. Of course, you don’t talk about the entire Fourteenth Amendment, because that would be an even much longer book, ’cause there’s sections in the middle that are very, very important for the time, but not necessarily important to your book. But you start with the Citizenship Clause, which I found to be very interesting, a novel approach that I hadn’t seen in other Fourteenth Amendment scholarship to the extent that you do, but… So Section 1 talks about citizenship. Reading those words, interpreting what they mean, and then what their purpose was at the time, how do you construe that?

0:12:13.3 Evan Bernick: So we construe it as Reconstruction Era Republicans construed it, drawing upon what had emerged as the primary constitutional position of those abolitionists who, like Frederick Douglass, regarded the Constitution as a glorious liberty document, and even prior to the ratification of the Thirteenth or Fourteenth or Fifteenth Amendments, thought that there were fundamental rights tightly associated with a citizenship grounded in natural rights and civic equality, the lack of any second class status that were already guaranteed to all people who are born or naturalized in the United States through the Privileges and Immunities Clause of Article 4.

0:13:00.9 Evan Bernick: Now, that’s a mouthful, and it’s pretty weird in the context of antebellum constitutional law, which generally regarded the Privileges and Immunities Clause as just a guarantee that states couldn’t discriminate between in-​staters and out-​of-​staters when out-​of-​staters were sojourning. Republicans had a broader understanding, they said all states had to secure a basic floor of rights associated with citizenship, and the Fourteenth Amendment’s Privileges or Immunities Clause essentially enshrines that understanding. This idiosyncratic view of the Privileges and Immunities Clause became the view that the dominant political coalition responsible for the Fourteenth Amendment put into the Privileges or Immunities Clause, with the result that there is no doubt that the Fourteenth Amendment guarantees a fundamental floor of civil rights to all people who are citizens of the United States.

0:14:00.3 Trevor Burrus: Now, that’s only for the Privileges or Immunities Clause, ’cause you point out that one talks about citizens, but let’s do some textual analysis here, and that there’s of course more to it than that, but if you just read the word privileges or immunities, it’s not entirely clear what that would mean. On one level, traditional rights theory has most of the rights that we think of be… They’re immunities, they could be called immunities, immunities from state action, such as my right to free speech means I’m immune from abridgements of my speech from state actors would be the way you would think of it, but a privilege is a completely different thing if you just read the text. My right to free speech under Enlightenment thought that is the core of the Declaration is not a privilege by any sense. So if we texturally look at those words, how should we think about these two sides of privileges or immunities?

0:14:55.4 Randy Barnett: Well, Blackstone sharply distinguished, or pretty identifiably distinguished, between the two. We don’t claim that everybody who used this phrase made as sharp a distinct… A textualist distinction as he did or as you just did, but it’s nice to do so in terms of just explaining what’s going on, and it is useful to think of immunities as these liberties that may not be interfered with, like freedom of speech, and a privilege would be something what… An example of a privilege would be the privilege of participating in post-​political goods that are created by the government on a non-​discriminatory basis. So that in a state of nature, we have privilege, we have these rights, we have these liberties that we then get civil rights to protect, but when leave this state of nature, we get civil rights from civil society in return, but we also get certain privileges associated with citizenship, among which are the right to equal participation of benefits that the government has created within our political, within civil society.

0:16:02.1 Randy Barnett: These are privileges like the privilege of going to a government school or the privilege of using roads and highways that don’t exist in the state of nature, but what you get when you enter civil society and you become a member of that community. And some of those privileges of membership are associated with citizenship and not with personhood, so that’s one of the reasons why the Privileges or Immunities Clause is distinguished from the Due Process and Equal Protection Clauses because it speaks of the privileges of citizenship in addition to private immunities, whereas the Due Process and Equal Protection Clause just protects the basic natural rights of all persons from being arbitrarily interfered with or deprived.

0:16:49.2 Trevor Burrus: This seems like a lot of opportunity for bootstrapping in the sense of if privileges come from things the government does, then they can redefine the meaning of that word written in, at least in the Fourteenth Amendment in 1868, and just create a bunch of new privileges by virtue… You mentioned public education, Randy, so the government didn’t have to do that, and they didn’t do that for a very long time, and there’s a lot of things they don’t have to do, but once they do them, does it become a privilege now that is a right in some sense protected by the Fourteenth Amendment?

0:17:20.3 Evan Bernick: It can. So we don’t contend that we can get out in a certain way of the problem that you have identified by saying, “Look, there are certain rights that even if they are the subject of a broad sustained two-​thirds of states consensus that they are key to citizenship and should be recognized, we can still find a way to not call them privileges of citizenship.” What prevents that from happening arbitrarily, suddenly, in some context frighteningly, is precisely that requirement that we have just described. This idea that you need a sustained, widespread consensus that these rights really work in the sense of securing natural liberty and civic equality, and once that happens, they can be elevated to the status of privileges, not because we’re redefining what privileges means, but because the very concept of a privilege of citizenship is something that can emerge over time as a product of trying and testing and democratic convergence across a broad number of states for an extended period of time.

0:18:36.2 Randy Barnett: An example of a privilege of citizenship that we think did exist in 1868 was the privilege of gaining… Of participating or gaining access to government-​provided benefits or goods. Institutions that the government has created for the people as a result of tax revenue and other measures are something every citizen has a right to participate in. What those privileges are may change over time as government adds more benefits, and that’s really up to the government to do, and they may stop adding benefits or take away benefits, but they’re going to have to take away benefits from everyone.

0:19:14.7 Randy Barnett: An example of a privilege that was not a privilege of citizenship, most decidedly was not a privilege of citizenship in 1868, but we believe became one, was the right to vote, the right of suffrage for people who are of majority age for adults, not for every single person. And that right to vote, which was characterized in 1868 as a political right, and therefore, since political rights were not civil rights, was not included as a privilege of citizenship, we believe became a privilege of citizenship as a result of a number of constitutional amendments. There’s the amendment to protect the right to vote against race discrimination, against sex discrimination, and then to lowering the right to vote to the age of 18 made this right a fundamental right, and that is a privilege of citizenship.

0:20:11.7 Trevor Burrus: Let’s do a little back story here on the Privileges or Immunities Clause, because it is a core piece… Arguably the core piece of the Fourteenth Amendment by intent, at least, if you want to talk about what the drafters were doing there. But very quickly, it is sort of rendered a nullity in an interesting and controversial, what I would say today widely-​condemned opinion, the Slaughter-​House cases, which is sort of a stunning reversal, given a five-​year timespan when they could have gone and knocked on the door of the drafters of the amendment and said, What did you mean by this and gotten a better interpretation than they came up with in the Slaughter-​House cases.

0:20:56.4 Randy Barnett: Well, that’s very true, and I think it’s because some of what the Republicans did in Congress and then what they were able to get ratified by state legislatures controlled by their party was not always popular even amongst Republicans. And there was resistance even amongst Republican-​nominated or appointed Justices of the Supreme Court to the radical change, what they thought was a radical change, in our form of government. And essentially, to boil it down, they preferred our system of federalism as it existed prior to the Fourteenth Amendment, to the system of federalism as amended by the Fourteenth Amendment.

0:21:40.9 Randy Barnett: And five of those Justices preferred the original federalism. Four of them went along or were adamant in favor of the revised federalism, but as a result, we went backwards to the pre-​Fourteenth Amendment version of federalism, which gave states a whole lot more power to violate the rights of their people. And here’s another way to look at it, to the prior to the Thirteenth Amendment, states had so much power to violate the rights of their people that they could authorize the enslavement of some by others. That is an enormous amount of power. The Thirteenth Amendment limited that, they could no longer authorize the enslavement of some by others, but then it turns out there were other rights, fundamental rights that were being violated by state governments as a way of approximating slavery.

0:22:32.9 Randy Barnett: And even though the Thirteenth Amendment probably gave Congress a lot of power to go after that stuff, at least with respect to the freed men, people who had been enslaved, the Fourteenth Amendment went beyond that and provided a general amendment to our system of federalism in which there would be federal constraints on state abuse of the rights, of the fundamental rights, of their own people in a way that just didn’t exist before.

0:22:57.3 Evan Bernick: And I would just add a couple of things to that. One is that Republican presidents just were not particularly good at picking justices that were committed to the basic project of reconstruction. Ulysses S. Grant, for instance, had a number of judicial picks, one of which was the author, Morrison Waite, of the follow-​up to Slaughter-​House, Cruikshank, in which an acquittal of the primary participants in the Colfax Massacre, the single bloodiest episode of Reconstruction, was the occasion for the court holding emphatically that the Fourteenth Amendment does not guarantee the right to bear arms, the right to speak freely, or any even of the specifically enumerated rights against the states.

0:23:39.6 Evan Bernick: So that’s one thing. The other thing is that congressional Republicans didn’t have a very high opinion of the Supreme Court. That’s part of why the Fourteenth Amendment specifically empowers Congress to enforce its provisions, not that they wanted to leave it to Congress, but it did, the textual choice, the institutional choice did betray a lack of confidence in the judiciary, and that was soon vindicated. So you not only had Slaughter-​House, you had Cruikshank, and you also had the Civil Rights cases, the 1883 decision in which the court held that the Fourteenth Amendment did not empower Congress to prohibit discrimination in private municipality institutions and common carriers, because that wasn’t state action, even though they were discharging functions that were associated with the monopolistic powers of governments. All of these decisions vindicate the Supreme Court, or the Republican skepticism about the Supreme Court, as a Civil Rights enforcer.

0:24:44.4 Trevor Burrus: It does seem a big change. I mean, obviously, it was a huge change, and we can’t downplay the Civil War and what happened after the Civil War, but to put the judiciary in the seat of enforcing all of these rights against the freemen, and everyone… But let’s just say freemen, African-​Americans in the South was fundamentally changing everything about what the federal judiciary was going to do on one level, and maybe when the Supreme Court was hearing Slaughter-​House, they said it was almost like a judicial… The flood gates kind of concern that this is going to be a massive rights violation happening on there, and everyone can’t sue all the time as their rights are being fundamentally violated, and we can’t hear every case, so there’s no way that the drafters of the Fourteenth Amendment intended us to hear every case about this, ’cause there will be thousands a day. Maybe that was one thing going through their mind.

0:25:38.6 Randy Barnett: Well, in addition to that, in the Slaughter-​House cases itself, the lawyer for the butchers was a former Justice of Supreme Court, Campbell, who resigned from the Supreme Court and became a member of the Confederacy, and had a series of lawsuits lined up in which he was challenging the civil rights laws that had been enacted by a reconstructed Louisiana legislature, a biracial legislature. And so what some of the more sympathetic Republicans might be seeing here is the use of the Fourteenth Amendment against Reconstruction. And so therefore, they might have been somewhat unsympathetic to these white butchers represented by their former Justice Campbell coming into court and saying, “Hey, look, not only is this part of what this legislature did, but coming up, I’m going to contest the public accommodations law that the Louisiana state legislature picked.”

0:26:41.2 Randy Barnett: So race may have played a role, and I would say… Well, you say race liberalism might have played a role in saying, “Hey, we’re not going to be gamed by these white butchers represented by this Confederate high official in gutting Reconstruction, by using the Reconstruction Amendment against us, we’re going to limit it to racial discrimination against Blacks, because that’s what it was there for.” That makes more sense. It shows the majority in a better light than just a bare commitment to the old federalism, which is how I… The explanation I previously offered.

0:27:21.5 Randy Barnett: On the other hand, on the other hand, defenders of the Reconstruction in Congress, lawyers defending it included a man named Jerome Black, who was somebody who was ardently opposed to Reconstruction, and he was one of the lawyers representing or defending the law in order to gut the Fourteenth Amendment from being used in Reconstruction, so we had both… On one side, we had a lawyer using the Fourteenth Amendment to help gut reconstruction, on the other side, we had a lawyer opposing the Fourteenth Amendment to help gut Reconstruction. And years later, when he was interviewed, Campbell was asked what he thought about this outcome of the Slaughter-​House cases which he had lost, and he said, “Well, you know, on balance, it might have been for the best that I lost that case.”

0:28:14.1 Evan Bernick: Alright, so at this point, with conflicting motives and reasons to not align oneself with the goals of any particular participant in this drama, we just ask the question: Does the Fourteenth Amendment guarantee the right to earn a living in the occupation of your choice? Subject to reasonable regulations, which the regulations that were ultimately upheld in Slaughter-​House might have been? And we conclude that the answer is: Yes, there is such a right, it can be reasonably regulated. Perhaps Slaughter-​House, I tend to think Slaughter-​House could have been decided on that ground, but much like Lochner v. New York, where the dissent’s position as represented by Justice Harlan might have been reasonable deference to genuine regulatory measures, we have a situation where the middle ground that might have been the more constitutionally accurate ground was lost.

0:29:11.7 Trevor Burrus: Now, moving on to the next big clause of the Fourteenth Amendment, and by inference, there’s the Privileges or Immunities Clause, there’s the Due Process of Laws clause, which you are very, very careful to say, this is Due Process of Law and the Equal Protection of Law Clause. By implication, all of them must do something different, just standard canon of construction, we included them all, they can’t all do the same thing. So what does the Due Process of Law Clause… What is the intent, interpretation and construction of that clause that you guys offer?

0:29:46.3 Randy Barnett: First of all, I would dispute the canon that you decided that there can’t be… That these can’t do the same thing. There can be overlap. When you’re designing an airline, you want multiple airline engines, if one fails, you have more engines, this is… Redundancy is a virtue, not a vice when you’re trying to devise a mechanism. We do think that each of these provisions are distinct from each other, and they each do things that the others don’t do, but that doesn’t mean there isn’t overlap, they’re not hermeneutically sealed off from each other, or hermetically sealed off, not hermeneutically… Hermeneutically or hermetically sealed off from each other, and I’ll give Evan the opportunity to take a first crack at what the Due Process of Law Clause aims at doing and how it’s distinct from the Privileges or Immunities Clause.

0:30:35.8 Evan Bernick: So I think the best way to think about the Due Process of Law Clause is about guaranteeing both process and law. It guarantees a process, a judicial procedure through which acts of governments are evaluated as to whether they pursue what are regarded as constitutionally legitimate lawful ends. In the period before the ratification of Fourteenth Amendment, that kind of inquiry, inquiry into the ends for which laws were enacted primarily took place, almost exclusively took place under state constitutions. Why? Well, because the federal Constitution didn’t bind the states, except in a couple of limited contexts.

0:31:23.7 Evan Bernick: What you saw happen after the ratification of the Fourteenth Amendment was courts drawing upon case law interpreting state constitutional guarantees at due process of law to flesh out new federal constitutional limitations on the purposes that states could pursue now that we have a federal Constitution that binds the states, and this is where the idea of the police powers really comes from. The idea that there are certain ends that all just governments must be able to pursue, we get this formula that is alternatively framed in terms of public health, public safety, public welfare, public morals, we condense it down to the idea that all states have an obligation to protect life, liberty and property. You can use your own so long as your use of your own doesn’t injure others.

0:32:19.0 Evan Bernick: And to the extent that legislation is not designed to regulate your exercise of your life, liberty and property rights, but instead to take from some and give to others, more or less because others are politically powerful, you don’t have something that is consistent with the constitutional limits on government. You don’t have the due process of law. Equal protection of the laws, this is, somewhat unusually one might think, in the context of the Constitution, a positive right to government protection of you against private violence. It’s not a generalized guarantee of non-​discrimination, although it does operate so as to prevent states from discriminatorily failing to protect some people and not others against private violence, but it is a rare instance, or one that doesn’t get a lot of attention, of a constitutional provision that gives you not only freedom from but freedom to, freedom to call upon the government to protect you from others attacking your freedom.

0:33:36.0 Randy Barnett: So it’s about protection, and the government duty of protection, which is one of the people in that era said, the first duty of government is the protection. And when we think about it, libertarians should think about this, when you leave a state of nature, why do you leave a state of nature? John Locke said that one of the reasons you leave a state of nature, the primary one is, to get a better protection of your rights than you can get on your own. So the whole point of the so-​called social contract is that in return for entering civil society, what you get in return is better protection. That is the duty that is protected for the first time expressly in the Constitution, in the Equal Protection Clause.

0:34:21.3 Trevor Burrus: The positive right formulation from Evan is interesting. So, on your point, Randy, an obvious example of this would be police in Reconstruction South, or let’s just say all the way up through Jim Crow, who may be not protecting African Americans from murder, so they’re not enforcing laws against… So we assume the murder law is passed via due process. It’s a general, valid law, you prevent murder, but then the equal protection side would apply to the executive branch there. So does that mean that most of the equal protection properly construed would apply to executive action rather than legislative action?

0:35:00.6 Randy Barnett: This was the position we began with when we started our book, which was the position identified by Chris Green from Ole Miss, whose work we like very much and we largely agree with. However, the research that we did, and I would say primarily that Evan did, reveals that there is, in fact, a duty of the legislature to pass laws for the protection of all, so it’s still about protection. And the primary ill that was being rectified was a failure of the executive branch to protect, but there still is also a duty on the part of the legislature to enact laws, and a duty on the part of the judiciary to enforce them equally as well. So all three branches of government have a role to play in extending the protection of the laws to each individual.

0:35:54.7 Trevor Burrus: This seems tied to the privileges part of the Privileges or Immunity Clause to some extent too, since we talked about those being maybe post-​political rights and maybe somewhat… Not positive rights, but post-​political rights that come, that you might gain by virtue of the government giving it to people. So we talked about public education, for example, as a privilege and not an immunity, but when it comes to equal protection, is this a similar type of action? And I’m thinking of Obergefell and gay marriage, for example. The government doesn’t have to recognize marriage, or maybe it doesn’t, but if it does, is that where the Equal Protection Clause kicks in, because it has done this and therefore created a post-​political system of delineating a relationship, and now it can’t do it unequally when it does the application of that?

0:36:46.3 Evan Bernick: No, the Equal Protection Clause guarantees positive rights, but the positive rights that it guarantees are calibrated, designed to protect negative rights in ways that the post-​political goods that are recognizable through the Privileges or Immunities Clause need not be. You can tell a story according to which the provision of equal access to public education somehow has an attenuated connection to the protection of natural rights, but it’s not particularly easy to get there. It requires a lot of steps, and probably the best way to think about what that privilege is primarily for is in the context of civic equality rather than natural rights.

0:37:33.6 Evan Bernick: By contrast, the Equal Protection Clause is primarily about the protection of negative rights. Going back to Obergefell, Obergefell as I see it is a privileges or immunities question. This is a question about whether given that there is this positive right to recognition from the states, the contractual relationship that also has state-​created benefits associated with it, is it arbitrary to distinguish between some citizens and others on the basis of the sex and the sexual orientation of the married couple? And if the answer to that question is yes, that’s a privileges or immunities problem.

0:38:19.2 Trevor Burrus: One of the things that you guys get into, which is novel, especially from an originalist and libertarian book, is what sort of powers you interpret the Fourteenth Amendment to convey upon Congress via Section 5, which gives Congress the power to enforce the provisions of the Fourteenth Amendment, and who those can be enforced against. And again, it makes sense to me, having read the whole book, especially, that they knew that the South, post-​the Civil War, the oppression would not just come from the government, and they knew that at the minimum, and they tried to rectify that with the with the Civil Rights Act. So in your interpretation of the Fourth Amendment, there are broader powers than the court has given for Congress to rectify discrimination and other types of oppression from both private and public actors.

0:39:12.2 Randy Barnett: Yeah, I have for a very long time thought that Section 5 was under-​utilized, under-​appreciated, that many of the civil rights cases, the modern civil rights cases that are decided under the Commerce Clause or the spending power, primarily the Commerce Clause, they really ought to be Section 5 powers, as some of the justices at the time also thought. Like Justice William O. Douglas thought this should be a Section 5. “This is really about civil rights,” he said. “This isn’t about commerce.” But one of the things that the book… In almost every particular of what I previously argued about the Fourteenth Amendment was both confirmed and required modification as a result of the research in this book.

0:39:52.8 Randy Barnett: And one of the nuances that I had not appreciated before we did this book was the degree to which Congress might be in a position to remedy rights violations by the states, or a neglect of rights by the states in a way that courts are not. So there’s not a one for one or a hundred percent overlap between what judges should be doing to rectifying a failure of protection and what Congress may be doing to rectify a failure of protection. For one thing, courts are not in a good position to create remedies, and they’re not… In any systemic way, because they handle things one case at a time.

0:40:31.4 Randy Barnett: Congress can create remedies. And what Congress began to do even during Reconstruction with respect, for example, to racially exclusionary juries, is they started to enact federal bypass statutes. The Civil Rights Act of 1866 did sow it well, that you could actually… You didn’t have to rely on state judicial proceedings for your remedy or state. If the state is not in compliance with the Constitution, you can go to federal court and remove your case to federal court. That’s something that only Congress can do. I mean, the states can’t create, the federal judiciary can’t create that kind of remedy.

0:41:10.0 Randy Barnett: What the court has done, unfortunately in our view, is they’ve limited the scope of Section 1 to what they think is judicially administrable. So it’s an argument, well, Section 1 can’t mean this because we the judges can’t be doing this. What they ought to do instead is recognize that some of the norms in Section 1 are under-​enforced or they’re un-​enforced, under-​enforced constitutional norms with respect to judicial power. But that Congress would be free to pick up and adopt something that courts cannot do, and courts should not be precluding Congress from using its power to do that thing.

0:41:49.2 Trevor Burrus: Alright, so I have to ask the question. We’ve got the backdrop here, and you addressed it and, Evan, you brought it up a couple times, but within the context of the originalist discussion, there have been always this what Scalia called the bloody shirt of Brown v. Board of Education, that it was, if you don’t have a theory that would have decided Brown, at least in terms of outcome in the way it was decided, then you don’t have a valid constitutional theory, is the way a lot of people think not just about Brown, but other cases too. And then always originalists have brought up that there’s no way that the 1868 Congress, which I believe might have been the same Congress that set up the segregated DC public school system, would have thought that this amendment desegregated education. So how would you have briefed that case, or written it if you were a justice, to say that, “No, this, the original meeting does encompass this,” even though it’s clear that they didn’t think it would end up this way when they ratified the amendment and wrote it.

0:42:53.4 Evan Bernick: They would have and indeed did think that there existed a right accessible by all citizens of non-​discriminatory access to taxpayer-​funded public institutions, one of which. As in the course and the development of public education, it eventually became public schools. And by the time that Brown was decided, public schools were sufficiently prevalent that one could speak, as one could not speak in 1868, of a specific right on the part of citizens who enjoy non-​discriminatory access to public institutions that included, as well, access on a non-​discriminatory basis to public schools. The distinction between segregated and non-​seg… Or the distinction that was relied upon in the creation of segregated schools was an arbitrary one. You cannot arbitrarily make classifications between citizens. Brown v. Board of Education was correctly decided on the basis of original meaning. Next case.

0:43:56.9 Trevor Burrus: I would add to that, that the… What’s completely underappreciated is the principle of separate but equal itself is a concession that there is a privilege of citizenship that allows you equal something with respect to these privileges. And so they don’t deny… The opponents of the Civil Rights Act of 1875 did not deny that African-​Americans had a privilege of citizenship entitling them to equal government services. They simply asserted that that was not infringed by providing separate but equal services. So the “but equal” part is a concession, even by opponents, even by segregationists, that the privilege of citizenship that Evan and I show was part of the original meaning of the Privilege or Immunities Clause, was in fact a privilege of citizenship. Basically, no one denied it.

0:44:51.5 Trevor Burrus: I’m glad you added that, because I was going to add that, because I love that point in your book. It’s very strong and I’m like, “That’s a very good point.” And it also shows the kind of evolution that maybe in 1868 public schools, which were pretty new, but by Plessy, they are assuming that it is a duty to supply this, so just but equal was the important part here.

0:45:11.8 Randy Barnett: And Michael McConnell made this point in 1995 in his work, and when he said that, when he noted that it’s true that… First of all, he showed that majorities of both Houses of Congress supported the desegregation of schools be added to the Civil Rights Act of 1875. It didn’t get added because there were super majority requirements in both Houses, but a majority, and virtually everyone, not everyone, but virtually everyone who supported the Fourteenth Amendment also supported prohibiting racial discrimination in schools. And also that every time it was attempted to put separate but equal into the Civil Rights bill, which was pending for five years, every single time it was defeated. In other words, a majority, a clear majority of Congress rejected separate but equal between 1870 and 1875.

0:46:10.2 Trevor Burrus: I remember years ago, Randy, when I asked you something about the Fourteenth Amendment, and… I can’t remember what it was exactly, but you said, “We’re starting a book now on this, and I’ll tell you what I think when I finish the book.” And you kind of alluded to that your own opinions were changed or confirmed in this, even since you’ve been doing originalism for so long. Has this changed… Your view of the Fourteenth Amendment has changed… And Evan, I also want you to answer this too, within your shorter career. But has your view of originalism changed at all? I mean, the way or what its possibilities or how it should be done by writing this book?

0:46:46.1 Randy Barnett: Well, I would say my view of originalism hasn’t changed, but my view of libertarianism has changed. I think libertarians have a lot to learn from the Republicans and from the anti-​slavery constitutionalists who educated the Republicans. So for example, we as libertarians and generally classical liberals and most conservatives make a very strict distinction between public and private and government, non-​government. They associate public and private with government and non-​government. But what the people who wrote the Fourteenth Amendment understood and what they put into their Civil Rights Act of 1875 was a recognition that there is a middle category of goods that are public in nature, but non-​governmental, not governmentally-​owned. I mean, private railroads are an example of this, inns are an example of this.

0:47:35.1 Randy Barnett: These were all subject to common law duties of non-​discrimination that go back centuries. And so this is something that libertarians need to incorporate within libertarianism. It’s something that Barry Goldwater didn’t understand when he, for well-​motivated reasons, opposed the Civil Rights Act of 1865… 1965… 1964. And it’s something that, for example, Rand Paul, who I greatly admire, did not appreciate earlier in his career, when he saw, well, maybe some parts of that Civil Rights Act might have been constitutionally problematic. The Republicans were kind of ahead of us on this, and libertarians should consider modifying or amending their principles to accommodate the reality of freedom in the real world.

0:48:29.2 Evan Bernick: My major discovery in the course of this work is really the power of mass movements to shape not only how constitutional text is interpreted, but constitutional text itself. We start from a position held by only a minority of beleaguered radicals, the abolitionists. We find our way through consistent struggle, even unto death, of a multi-​racial coalition that captures all three branches of the federal government and entrenches a constitutional vision that was once totally off the wall, to borrow Jack Balkin’s famous phrase.

0:49:09.1 Evan Bernick: It’s not any news that minority groups and radicals can shape how the Supreme Court approaches particular issues. Non-​originalists like to point out that modern First Amendment law is largely a product of advocacy by the IWW and the ACLU in the early 1920s. But what this story really shows me is the possibility of situating constitutional text and its original meaning in the context of broader radical dissident history, and the possible utility in the context of current social movements to draw upon that text rather than looking at it as just the fruits of old white men with terrible ideas, determined to entrench their class prerogatives.

0:50:04.1 Randy Barnett: Since you mentioned the last time I spoke to you, and I was talking about a future book, in the spirit of what I just said before Evan spoke, I’m currently finishing a memoir that I’m writing of my life called A Life for Liberty. When I’m done with that, I plan to turn my attention to libertarian theory once again in a book that I have, the working title of which is Real World Liberty or Liberty in the Real World. In which I think it’s time after 50 years to look again at libertarian first principles to take account of how things work in the real world, as opposed to how they might work in a model of no state… Of no governments whatsoever, which is what I think the libertarian model is built on.

0:50:49.7 Randy Barnett: We basically are working with a state-​of-​nature model in a world of nation states. And I don’t think libertarian theory has adequately taken into account the existence of nation states in figuring out what libertarian principles in the real world should be. What motivated me to do this, what inspired me to do this, was this work on the Fourteenth Amendment to connect this up. I learned a lot from the people who are responsible for arguing against slavery and eventually for modifying our Constitution to put these principles into the text of the Constitution. And I think it’s time all of us learn more. I think all Libertarians could stand to learn more from the Republicans who actually made this major contribution to our understanding of the Constitution.

0:51:43.1 Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us on Apple podcasts or on your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.