Challenging but important for every US citizen to read.
Reviewed in the United States on 1 August 2022
The book merits five stars for its transformational effect, not for ease of reading. This is college-level material, full of abstract ideas and hair-splitting distinctions that may force you, as it did me, to take copious notes and to frequently pause and reflect. Randy Barnett and Evan Bernick seek to rehabilitate originalism, arguing persuasively that the Supreme Court has long misinterpreted three key clauses of the 14th Amendment – the Privileges or Immunities Clause, the Due Process of Law Clause, and the Equal Protection of Law Clause. In some ways, courts have interpreted clauses too conservatively and in other ways too liberally, they say. If the authors have accomplished nothing else with this thoroughly researched, closely reasoned, and logically organized book, they have provided effective tools for rethinking the crucial 14th Amendment and the Constitution as a whole.
Starting with the Privileges or Immunities Clause, the authors assess that it originally encompassed a more expansive, and expandable, set of rights than the severely restricted list the Supreme Court discerned within just five years of the amendment’s 1868 passage. The authors cite numerous speeches and articles to identify four categories of fundamental civil rights identified by the drafters and the public. (1) They include those rights already enumerated throughout the Constitution as it stood in 1868, (2) those rights enumerated in the 1866 Civil Rights Act, (3) those rights unenumerated but deeply rooted in the nation’s history and traditions, and (4) any right that might get added to the Constitution in future years (pages 238-39). The last category is what makes the list expandable.
Likewise, the authors take issue with the Supreme Court‘s use of the Due Process of Law Clause. While they criticize the modern conception of “’substantive due process,’ which authorizes judges to single out some liberties as fundamental and worthy of heightened protection and leave aside other mere ‘liberty interests’ (32),” they nevertheless see a substantive element in the clause. They argue that the clause requires the Supreme Court to determine if the substance of the legislative act falls within the proper scope of legislative power. So, the difference between the two types of substantive due process, as I understood it, is that the incorrect one amounts to identifying or manufacturing rights and the correct one involves assessing the proper limits of legislative power, though both can achieve similar ends.
The authors also see flaws in modern interpretations of the amendment’s Equal Protection of the Laws Clause. Contrary to prevailing doctrine, they assert that equal protection “imposes an affirmative duty on state governments to act (34),” even with respect to rights violations committed by private actors. Real protection requires “effective enforcement (335)” on behalf of all. They note, however, that the framers did not intend the clause “to encode a general antidiscrimination principle (342),” even though frustrated pro-Reconstruction commentators tried to stretch its purpose in that direction after the Supreme Court gutted the Privileges or Immunities Clause.
The authors deftly deploy several tools of Constitutional analysis, including some useful conceptual distinctions. To name a few, they distinguish original intended meaning from original public meaning, Constitutional interpretation (identifying original meaning) from construction (applying interpretations to a specific case), and the letter of the amendment (original conveyed meaning) from its spirit (the ends, purposes, goals, and objects of the amendment). They also advocate a three-step process for interpreting the Constitution and constructing meaning. Justices should (1) make a good faith effort to determine original meaning; (2) failing that, identify original, publicly accessible functions or spirit of the provision; and (3) formulate a rule consistent with the letter of the amendment and designed to implement the amendment’s original public functions (17-18).
Finally, you might want to supplement this dry and scholarly treatise with historical narratives that lay bare the human costs of the Supreme Court’s decision to cripple the 14th Amendment in the 1870s. Many good books are probably available, but from personal experience I can recommend Charles Lane’s compelling and at times upsetting "The Day Freedom Died."