Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce inequality among citizens of the United States. Lash and I agree about a great deal, but this Article provides a focused explanation of the clash between our two books.
Searchable electronic databases have produced an amazing variety of new evidence and argument related to the Fourteenth Amendment’s original meaning and the enumerated-right controversy. Lash’s book vividly shows that there is an enormous amount that the last seventy years of discussion of incorporation failed to uncover. Here, I raise six problems for Lash’s enumerated-rights-only view: (1) the gulf between the constitutional needs of the Founding and Reconstruction; (2) the inherent unabridgeability of federally enumerated rights through state action; (3) textual and historical complications for sharply distinguishing Article IV from the Fourteenth Amendment; (4) equality-focused interpretations of the Louisiana Cession language and of the Privileges or Immunities Clause, explaining the Clause in terms of the Civil Rights Act of 1866; (5) 1866 disputes over voting rights and indefiniteness, incomprehensible on the enumerated-rights-only view; and (6) subsequent-interpretation evidence, especially the use of the enumerated-rights-only view against the Civil Rights Act of 1875.