by Timothy Sandefur
September 19, 2018
This year marks the 150th anniversary of one of the great milestones of constitutional liberty: the ratification of the Fourteenth Amendment, which guarantees individual rights against state governments. Before it was enacted, courts had held that the Bill of Rights applied only against the federal government. Passed in the wake of a bloody Civil War, the new Amendment made clear that certain individual rights—life, liberty, property and what are referred to as the “privileges or immunities of citizens of the United States”—are guaranteed against state oppression, as well.
On Friday, I’ll be speaking at George Mason University at a conference commemorating this victory, and you can read my paper, Rebuilding the Fourteenth Amendment, here. I reflect on the victories we’ve attained in the past 20 years in rescuing the Amendment from incorrect interpretations foisted upon it by courts in the intervening years—and discuss some of the obstacles that still remain. Specifically:
- The Trade Trigger—Courts often allow the government to regulate things that they otherwise would not allow, simply because commercial activity appears somewhere in the equation. This often makes no sense. If it’s okay to do something, then it’s okay to do that thing for money—and it’s irrational for the government to allow people to, say, allow guests to stay in their homes, and then not allow that if a commercial transaction is involved.
- Simply making things up—When courts invented the rational basis test in the 1930s, the idea was that courts would presume as a factual matter that a law was constitutional unless proven otherwise. But in the 1950s, it changed into a virtually impenetrable legal presumption where we’re often told that actual facts don’t matter. This means courts often simply make stuff up in these cases, which violates the basic principles of due process.
- Originalism and surrendering substantive due process—Originalism is the idea that we should interpret the Constitution as it was understood at the time of the ratification. It’s a plausible theory, but in the end, an unsatisfactory one, because that approach is still basically subjective. What we want is an objective theory of what the Constitution means. And the danger of Originalism is that it plays into the hands of people who insist that we should have some master list of all the rights that people are allowed under the Constitution. But that’s just not how the Constitution works. There is no master list, and there never can be one. Indeed, the Constitution explicitly protects “liberty,” which is just the open-ended category of freedom, not a list of specific rights. Unfortunately, many conservatives want that list, and they are willing to surrender substantive due process—the oldest, most important of all constitutional protections—as a result.
- And more!
Due to some last-minute shuffling, I’ll be speaking on the first panel, about the generation that wrote the Amendment, and I’ll be discussing Frederick Douglass, rather than presenting this paper. But I’m sure we’ll have some fascinating exchanges during the Q&A. If you’re in the D.C. area, please join us!
Timothy Sandefur is the vice president for litigation at the Goldwater Institute.