Eric Segall: A New (Read Old) And Improved 14th Amendment? Review of Barnett and Bernick ...

Review: Barnett and Bernick: A New (Read Old) And Improved 14th Amendment? Review by Eric Segall:  By Eric Segall  

Randy Barnett (leading originalist and adversary of the Affordable Care Act) joins with fellow Georgetown prof Evan Bernick to re-read the history of the Fourteenth Amendment.  Eric Segall commends it as interesting and thought provoking. As someone who sees the "state action" limit on the 14th Amendment in Cruikshank and the so-called Civil Rights Cases as low points in our constitutional history I am surprised and welcome this aspect of Barnett and Bernick's new book The Original Meaning of the Fourteenth Amendment.  As recounted by Segall they argue:

Given their capacious reading of the privileges or immunities clause, Barnett and Bernick's accounting of the original meaning of the equal protection and due process clauses, with one major exception noted below, feels almost anti-climactic though, as the authors say, there is something to clearly grounding rights in the correct places. 

As for equal protection, the authors argue that the clause requires state governments to 1) impartially execute nondiscriminatory state laws protecting life, liberty, and property; 2) provide people with equal access to courts; 3) not enact laws that unreasonably leave the personal security of some more uncertain than the security of others; and 4) not deny people security-related benefits derived from valid federal legislation. 

The major doctrinal shift that would definitely change much of constitutional law is that the authors argue that the Court's holdings in The Civil Rights Cases and United States v. Morrison were incorrect because Congress has the power under Section 5 of the 14th Amendment to enforce the limits of the equal protection clause, which includes the states' failure to remedy private action that violates those rights protected by the clause. In other words, the authors believe that equal protection means the state has affirmative obligations to protect people from private actors and thus reject the very restrictive version of the state action requirement that the Court has adopted since 1883.

If the Court were to accept this framework (it will not), coupled with the authors' reading of the privileges or immunities clause, the constitutional landscape would change dramatically. Barnett and Bernick's well-known libertarian priors would be furthered by all of this as judges would protect a lot more rights than they do now. On the other hand, Professor Barnett has long argued for a narrowing of federal power and this interpretation of the 14th Amendment gives Congress far more authority at the expense of the states than current Supreme Court caselaw allows. Reading the book carefully trying to spot where the authors' priors came into play, I have to say that I think they both simply went where they thought the evidence led. 

- GWC