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?