Rereading the Fourteenth Amendment

In a piece just out in the new issue of National Review, I argue that conservatives should shift their arguments against racial policies. I claim that affirmative action and redistricting not only fail to achieve their stated goals, but also operate at the cost of violating the proper interpretation of the Constitution.  

The point that should be of most interest to Ricochet members is my argument that the Fourteenth Amendment’s Equal Protection Clause is not the true source of judicial protection from racial classification by the state. The provision that actually creates rights is the Privileges and Immunities Clause. Read the Fourteenth Amendment. Which provision sounds as if it recognizes natural rights?

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

To me, the Equal Protection Clause seems to require executive branch officers not to discriminate in how they execute the laws — in other words, the murder laws cannot just be enforced in cases of white victims. It is “privileges and immunities” that naturally reads as recognizing rights against government more broadly.

Do Ricochet members agree with my reading of the Fourteenth Amendment?

  1. billy

    Affirmative action was once the illegal immigration issue of its day, i.e. an issue Republicans had to drop if they were to have any hope of winning black voters.

    So when is the last time it has been mentioned by a Republican candidate and how many black voters has the party picked up?

  2. Shane McGuire

    Man, Johnny Yoo wants to revisit the Slaughterhouse Cases! That makes you, me, and Clarence Thomas.

  3. Eric Hines

    Part I:

    Shane McGuire: Man, Johnny Yoo wants to revisit the Slaughterhouse Cases! That makes you, me, and Clarence Thomas. · 0 minutes ago

    You can add me to the list.  Wickard, Berman, Midkiff, and Kelo all need revisiting and correction, also.

    [P]rivileges or immunities strike me more as civil matters than natural ones.  These are things legitimately granted or withheld by the governments we hire.  The natural rights recognition is in the nor shall any state deprive any person of life, liberty, or property, without due process of law clause.  This is a deliberate echo of the partial list of natural rights explicitly identified in our Declaration of Independence.  That due process can attach limits is recognized in the concept of social compacts being intended to help us preserve these for ourselves and in SCOTUS rulings that do things like restrict our ability to shout “Fire” in a theater and in laws that restrict us from using legitimately owned firearms to commit murder.  Those limits essentially give substance to the concept that one man’s liberty ends where it conflicts with another’s.

    Eric Hines

  4. Eric Hines

    Part II:

    It seems to me that there is very little need to create rights–affirmative action, which is fundamentally racist, is an example of the failure of this.   The privileges or immunities clause seems to me better used to concretize in civil law our existing natural rights.  In this regard, equal protection and due process dovetail, with some overlap.

    Eric Hines

  5. Mark
    James Of England: I wholeheartedly agree. With the prospect of another 2 Obama appointments on the horizon, though, I suspect that our energies will be better spent on defending territory we have already won than hoping for new victories. · 5 hours ago

    I agree.  While I’d like to see the Slaughterhouse Cases decision overturned realistically there is only one vote on the current Court in support (Thomas).  It’s not only liberals who like a deactivated P&I clause.  Precedent worshipping conservatives (Roberts) and Borkian style majoritarian conservatives also are fine with it.

  6. Eeyore
    John Yoo:  I claim that affirmative action and redistricting not only fail to achieve their stated goals, but also operate at the cost of violating the proper interpretation of the Constitution.  

    I hope that doesn’t put Mel Watt’s NC12th District into jeopardy.

    Nccd12.gif

  7. Shane McGuire
    Mark

    James Of England: I wholeheartedly agree. With the prospect of another 2 Obama appointments on the horizon, though, I suspect that our energies will be better spent on defending territory we have already won than hoping for new victories. · 5 hours ago

    I agree.  While I’d like to see the Slaughterhouse Cases decision overturned realistically there is only one vote on the current Court in support (Thomas).  It’s not only liberals who like a deactivated P&I clause.  Precedent worshipping conservatives (Roberts) and Borkian style majoritarian conservatives also are fine with it. · 57 minutes ago

    With regard to the P & I clause, you can add Scalia to the Roberts group concerning precedent, and I don’t think their position is an unreasonable one. While I agree with Thomas on the issue that the Slaughterhouse Cases should be revisited, there’s something to be said for continuity in the means by which we interpret a text.

  8. Eric Hines

    …concerning precedent…I don’t think their position is an unreasonable one.

    It isn’t, until it’s carried to extremes.  If precedent were sacrosanct, then we will have fought a civil war in vain, and Plessy will have been erroneously overruled.  But it isn’t sacred; even the Progressives agree: their Jones & Laughlin reversed a century of precedent in Commerce rulings and facilitated the coming Wickard.

    Precedent should be hard to get around, but not impossible.

    Eric Hines

  9. James Of England
    billy: Affirmative action was once the illegal immigration issue of its day, i.e. an issue Republicans had to drop if they were to have any hope of winning black voters.

    So when is the last time it has been mentioned by a Republican candidate and how many black voters has the party picked up? · 6 hours ago

    Romney won less than 1% of black women in many states. This was substantially less than the margin of error. This seems to support your implication. On the other hand, the issue appears to be a clear loser amongst whites. We’d have to pick up an awful lot of black votes to make the trade-off worthwhile, and this doesn’t seem plausible to me. That’s before one even raises the possibility of principles.

  10. James Of England

    I wholeheartedly agree. With the prospect of another 2 Obama appointments on the horizon, though, I suspect that our energies will be better spent on defending territory we have already won than hoping for new victories.

  11. Mark
    Shane McGuire

    Mark

    James Of England: 

    I agree.  While I’d like to see the Slaughterhouse Cases decision overturned realistically there is only one vote on the current Court in support (Thomas).  It’s not only liberals who like a deactivated P&I clause.  Precedent worshipping conservatives (Roberts) and Borkian style majoritarian conservatives also are fine with it. · 57 minutes ago

    With regard to the P & I clause, you can add Scalia to the Roberts group concerning precedent, and I don’t think their position is an unreasonable one. While I agree with Thomas on the issue that the Slaughterhouse Cases should be revisited, there’s something to be said for continuity in the means by which we interpret a text. · 1 hour ago

    I do agree that respect for precedent has a value.  The problem is that it can leave non-liberals permanently on the defensive.  Liberals have no problem overturning precedent either directly or indirectly without admitting what they are doing, as they did in Boumediane, while their opponents are loathe to overturn Carolene Products and Wickard because of precedent.  It ends up a one-way street.

  12. Eric Hines

    The problem is that it can leave non-liberals permanently on the defensive.

    A couple things about this.  One is that there’s no need for Conservatives to be on the defensive.   Conservatives are that because they’re incompetent communicators.  See today’s WSJ for a couple of articles on that.

    The other thing is that Conservatives don’t need to be so slavish to precedent–they’re guilty of going overboard.  They’re correct that the mother of all precedents–the Constitution–should be followed as it is written, until Article V procedures are executed.  Court precedents should be subordinate to that, and often these are erroneous.

    If they actually honored the principles they espouse, they’d see the errors in Wickard, Berman, Midkiff, Kelo, Jones & Laughlin, et al., and work to correct those errors. 

    Eric Hines

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