tv QA Randy Barnett Evan Bernick The Original Meaning of the Fourteenth... CSPAN November 15, 2021 6:00am-7:01am EST
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get our constitutional house in order. randy barnett, what is disordered about our constitutional house? randy: we have a very important amendment that most of the country does not even know exists, the 14th amendment. it is the amendment that is at issue every time you hear about a first amendment challenge to a state law, freedom of speech, freedom of the press, or a second amendment challenge to a state law. the original bill of rights did not apply to the states. if you have a constitutional right against the state government, you have that right because of the 14th amendment. but the supreme court began misinterpreting the 14th amendment. the 14th amendment was enacted in 1868 by the republicans in order to fight the white supremacy that had arisen in the south after the abolition of slavery, which was abolished by the 13th amendment. beginning in 1873, the supreme court systematically gutted the
amendment by misinterpreting it, and we have been paying the price for its initial misinterpretation of the 14th amendment ever since. susan: evan bernick, what are some of the prices we have been paying? evan: society has paid the price in the forms of one of the most tragic cases in recent supreme court constitutional positions, in the form of the deshaney v. winnebago county social services, a case involving the state action doctrine which holds that the 14th a moment only applies to state action. it does not oblige estates to provide protective services to anybody in respect to their civil rights. deshaney involved a young boy who was beaten repeatedly by his father and whose abuse came to the attention of social services
that never intervened in order to protect him from his father's violence. ultimately, he was beaten into a life-threatening coma and was left permanently mentally disabled. the supreme court said that is not a matter for the constitution to address because the 14th amendment only applies to states action. one of the things we show in our research is one of the primary functions of the equal protection of the laws clause was in fact to empower congress, empower legislatures, to intervene, to protect people from private violence. in particular, the violence of the ku klux klan and their allies as they sought to sabotage reconstruction. we now have a constitution as interpreted by the supreme court that says that a state is under no constitutional obligations to stop a father from almost beating his son to death, and that is both a moral problem and it is a constitutional problem
that we seek to address by marshaling the evidence that we do. susan: staying with this thought of the utmost significance of the 14th amendment, let's listen to justice neil gorsuch talking about it in general and the equal protections clause in particular. this is from march of 2017. [video clip] justice gorsuch: the point of originalism, textualism, what a good judge always strives to do, and what i think we all do, is try to understand what the words on the page mean, not import words that come from us, but apply what other people's representatives, the lawmakers have done. so when it comes to equal protection of the laws, it matters not a whit that the drafters of the constitution were racist, because they were, or sexist, because they were. the law they drafted promises
equal protection of the laws to all persons. that is what they wrote. i think that guarantees equal protections of the law. it took a civil war for this country to win. this may be the most radical guarantee in all of the constitution, and maybe in all of human history. susan: randy barnett, enlighten us a little more about this thought of how radical it is for not only our own constitution, but perhaps any constitution in history. randy: well, what we have here is a provision that protects the fundamental rights of each and every citizen the privileges of citizenship, as well as the natural rights or from the -- or fundamental rights of each and every person from being deprived. and it creates two avenues of redress.
if that is to happen, the first is the courts, because section one of the 14th amendment is an injection to the courts. it is a higher law that the courts must enforce when confronting an inferior law, like a statute that is in conflict with it. section five of the 14th amendment creates an enumerated power in congress to create remedies to protect the rights of individuals from their states when their states are failing to do so. this is a very radical -- let's put it this way. i don't know how radical it is, but it is a major change to our federalism. it was a qualification of the system of federalism we had implemented in 1788, when the original constitution was ratified. susan: evan bernick, in the introduction to your book, civil war historian james oakes says that they have a specific audience in mind, and that is sitting supreme court justices, and you have to change the way they interpret the constitution.
can you talk a little more about that goal? evan: there is a majority of justices on the supreme court now who either claim to be or at least are open to arguments about original meaning, the original public meaning of the constitutional text. our book investigates the most significant, most often litigated constitutional text that these justices are empowered to interpret, to the extent that they would fulfill their commitments, their promises, and their public statements to the effect that we just her justice gorsuch talk about, that the law that governs them, that empowers them, is the original meaning of the text of the law. then, we feel we are at a point where we can persuade a supreme court that is more open to
originalist arguments than perhaps any supreme court in our country's history. it is a unique opportunity. of course, that does not guarantee it will happen, but we want to have the evidence. we want to put it forward. we want to give them the opportunity to fulfill their expressed commitments, even when, as it often does in the course of our book, it leads to conclusions that people who are right of center might find not congenial. susan: randy barnett, do you have any evidence in history of a book successfully impacting -- influencing the direction of the supreme court? randy: let me think, let me think. i think john hart ely's "democracy and distrust" was a very influential book. it gave a theory, a way of understanding which rights the supreme court would protect and which ones they would not protect. i do think that one is
influential. i do think one reason why we might be hopeful that our book might have more influence than other books, picking up where evan left off, is the justices who have publicly committed themselves to being an originalist we think may be more likely to believe the scholarship produced by people who themselves are originalists , which we are, than they are to believe someone who is not an originalist but is generating arguments for their consumption. that is what many amicus briefs consist of that are filed in the court. they might very well give us a better shot at filling in some of the gaps of their own understanding about the original meaning of the 14th amendment, which most people have, and they are not to be faulted for. this book needed to be written because this information was lacking. susan: i want to learn a little bit about your partnership. randy barnett, i hope you are a familiar face to c-span
audiences because of the work you have done with us before, but you lead georgetown law center's center for constitution. evan, you teach law at northern illinois university. you are a generation apart in age and i am wondering how the two of you got together to work on this project? how did it get started? evan, do you want to start? evan: sure. the story of our meeting and our collaboration beginning at the same time at the institute for justice conference several years ago. i was working at a libertarian public interest law firm as the assistant director, which was the in-house constitutional scholarship that animated the litigation and articulated the role that judges ought to take with respect to enforcing the constitution. and in the course of my performing that role, i spent a
lot of time with randy's work and of the work of other originalists, and i ultimately came to the conclusion that there might be something a little bit important missing from an area of originalist theory, which was a question of what do you do when the text runs out, when the original meaning runs out? the traditional answer originalists have come to give is you have to engage in a constitutional construction. original meaning will not tell you what to do. ok, well, that is potentially a lot. there are a lot of constitutional provisions that are litigated. there are a lot of disputes about what they mean. judges are time pressed and they do not have the benefits that historians do to spend a lot of time with the primary sources. so i started thinking about how
to fill in the construction zone. i approached randy after this conference and told him about my idea, which was as it happens not just my idea. it was something he had been thinking about as well, the idea of judges as agents, empowered, given the great deal of discretion they need to exercise in good faith consistently with the original purpose of the constitutional provisions that they are interpreting. he developed doctrine that fulfills the purpose of the text when the text does not tell you directly what to do. that led to a series of projects and ultimately took us down a road where due to a confluence of circumstances we ended up focusing on the 14th amendment and deploying the theory that we had developed together in the context of this important amendment. susan: when did you know that you had a book? randy: evan produced a rough manuscript of a portion of what we were doing with respect to
the privileges or immunities clause, which is one of the clauses of section one. it became obvious to me that this manuscript could not be reduced to an article and had to be restructured and refocused to be the first part of a book. we also had another article we had already published on the due process of law, and that meant if we could reshape the privileges or immunities material and add the new process -- add the due process material and do a separate treatment of the equal protection clause, we would have a book. in fact, it would be the kind of thing that would only be presentable as a book. that is how we got started. that is how we knew this would be a book project, although it took several years to actually produce a book. susan: there are 69 pages of notes in your book representing -- book reference a great deal -- book referencing a great deal of research. in the acknowledgments, you write, "our prior views of each of the clauses have had to be revised as a result of this research in ways that surprised us."
can you each point to an example of a surprise you had when doing the research? randy: i was surprised that in identifying with the privileges or immunities clause, what are the privileges or immunities over the citizens of the united states that one should look to the positive law of a super majority of the states to identify those fundamental rights? that in fact i had previously thought that this was a protection of natural rights. but the way to understand the privilege immunities clause is to understand that civil rights are the rights you get from government in exchange to protect -- before leaving the state of nature to protect your natural rights. in order to identify what a civil right is, you have to look at the positive law of the states to figure out what the privileged immunities are. this is not the view i set out to show. this is not the view i started with. susan: what about you, evan bernick? evan: i was actually persuaded by randy's view of the
privileged immunities clause. i took an overwhelming amount of evidence that natural rights are protected by the privileges or immunities clause, only to the extent that they are specified in the positive law of the states and protected by the positive law of the states. i learned, having followed randy along that earlier line. the other thing i was surprised to discover involved the equal protection of the laws clause. there were two things i was surprised by. first, the degree to which equal protection has a history within abolitionism, within radical abolitionism. one of the central points that we make over the course of our book is the 14th amendment is a radical amendment not only in the sense that its promises are in the annals of political history more generally unusual,
but if the central ideas, the constitutional theory that underpins section one, section five, was developed by beleaguered radical movements toward the beginning of the 19th century that only over the course of time and contestation and a bloody war saw its ideas become hegemonic and actually structure what congress did, what congress proposed and the states ratified. we got an amendment that was mainstream among republicans who themselves were influenced by the most radical of radical abolitionists. that is what i was surprised to discover. the other thing i was surprised to discover is there had been a traditional dispute over equal protection with most people holding what the supreme court holds to be the orthodox view that equal protection just
protects people against discrimination, discrimination of any kind, and there is an alternative originalist point of view that argues that protection is just about protection. hat argues that protection is just about protection. protection against physical violence. we found that it is something in between. it is not just protection against discrimination, but it is also not just protection against violence either. it restricts both the states and nonstate actors in attacking or discriminatory early regulating people's civil rights. that is a new thing i discovered as well. host: if the entire exercise is based on interpreting the constitution in driving original public meaning, what was your definition of original public meaning? randy: original public meaning
is the information that a competent speaker of the english language would attribute to the words of the text. it is very much like what justice gorsuch said in that clip. this is a copy of the constitution. there's words in this document that convey information. the original public meaning is the meaning this would have -- this information would have conveyed to a competent speaker of english at the time it was enacted. that is the original public meaning. as to what originalism is, that can be summarized in one sentence. that is that the meaning of the text of the constitution, the meaning of this document should remain the same until it is properly changed by amendment. that is originalism. a lot of times when we focus on originalism we are talking about the fact that the meaning has not changed. but when we talk about the 14th amendments, we have to talk about how the meaning was changed because it was changed by amendment, which is the only proper way and originalist
thinks the meaning of the constitution should change. host: you give readers a history of the evolution of originalism, and former attorney general ed meese is one of the earliest and most important proponents of the theory of originalism. we have a clip from him from 1988 speaking about enumerated rights in the constitution. i want to have you talk about the origins of originalism and how it they became so controversial in the ensuing confirmation hearings. let's listen. [video clip] >> courts of course have a role in protecting rights. indeed, they should, because that is a particular power granted by the constitution. but the rights themselves, in order to be valid, must be derived from written legal documents. that they should be enumerated and fixed in writing is fundamental both because of fairness and because of the need for certainty. to argue otherwise would be to
suggest that judges have the authority to discover and enforce rights that our constitution and our laws do not ever mention. this view of course is at odds with basic precepts of a political society whose self understanding holds that all power, all governmental power, including judicial power, has to be derived from the people. host: randy barnett? randy: well, i have a great year of respect and admiration for ed meese, and i know him personally and i like him very much. i think what he is manifesting here in 1988 was the conventional wisdom amongst political and judicial conservatives about constitutional rights. ironically, they took that wisdom from the new deal court, who famously said in footnote four in 1938 that there is a narrower scope for the presumption of constitutionality when legislation appears on its face to be violating an
express or specific prohibition of the constitution which are deemed to be equally specific when held to be embraced by the 14th amendment. this is the theory propagated in 1938 that the only constitutional rights that deserve judicial protection or merit judicial production are the enumerated rights. but that understanding of constitutional rights was not the understanding that preceded the new deal court went under enumerated rights were protected by the court and by state courts, and it was not an understanding that held fast after 1938 when the right of privacy was protected by the court in 1965. our book is an answer to that particular originalist claim about what rights are protected, in this case, by the privileges
or immunities clause of the 14th amendment. there are other provisions that protect rights as well. so it does two things. one is it says that that clause protects rights that are not enumerated in the constitution, and we identify what those rights are. but it does another thing that is also important to the conservative legal movement because many conservatives actually question whether the 14th amendment is properly read as protecting the enumerated rights. they question the position that ed meese articulated in 1988. this is what is known as questioning the incorporation doctrine. what our research demonstrates is those enumerated rights were protected not because they were enumerated per se, but because their enumeration in the bill of rights was proof they were fundamental rights of send citizenship. that is one of the ways that fundamentality can be established, that they are in the constitution. host: to put this in layperson's terms, you wrote that
conservatives are looking at the constitutional interpretation and suggesting an evolution of originalist thinking, a more expansive reading of rights. is that correct? evan: i should first clarify that i am by no stretch of the imagination conservative. but with that out of the way, i do think we are articulating an understanding of the 14th amendment that is both going to surprise conservatives in many respects, but is also going to tap into an intuition they have about what kinds of things unenumerated rights could possibly be if they were not going to give judges free rein to invent rights left and right. the way i can talk about this is with the process doctrine that conservative
justices, given the lead in this respect by the late justice scalia developed, deal with the question of what fundamental rights are incorporated against the states? this is known as the glock spurred test. it looks to whether they are deeply rooted in history and tradition. it is very conservative. it sounds limited in ways implicit to the concept of ordered liberties, the test for determining whether a right is a constitutional right, just does not seem as limited. what we articulated, something that is even more demanding, even more constraining on judges than the deeply rooted in the nation's history and traditions formula that were made central to our due process law. not only do we say is this right deeply rooted in the nation's history and tradition, if we are talking about an
unenumerated right. we called for a stable generational consensus as to the centrality of that right to american citizenship. only if you had an effective super majority consensus across the state that lasted a generation, to the effect that rights cannot be taken away without severely undermining someone's citizenship should that right be treated as a privilege. it is more demanding than the test conservatives have embraced as a means to determining what rights are fundamental already. host: since i obviously mischaracterized your point of view, how would you characterize yourself? evan: i am a left libertarian with an emphasis on left. my politics are very different from my co-author's in a number of ways, although we certainly
see along the same lines with respect to others. i could elaborate in greater detail, but i worry that we will quickly run out of time because my political leanings and how i think about how the law ought to interact with politics at large surprise me on a more or less weekly basis. host: randy barnett come out where you -- randy barnett, where you intersect is in your libertarian point of view? randy: i am a libertarian as well but libertarians are divided in ways that are not commonly recognized within the libertarian movement. i think my next book is going to be about the divisions within libertarianism. i strongly identify as a participant in the conservative legal movement, although i am a libertarian. this book is aimed at the conservative legal movement, but also at progressives because the challenge is the views of progressives as well as to what fundamental rights are protected
by the constitution. i do think the book is challenging for both left and right. let me just add this for your conservative viewers of this program. if you agree with attorney general meese but the only rights that are fundamental enough to be protected are the enumerated rights, that means you do not have a constitutional right to raise your own children because that right is not anywhere in the constitution. you don't have a constitutional right of self-defense. you have a right to keep and bear arms, but you don't have a fundamental right to self-defense that those arms might be used for. those are rights that are so fundamental they did not need to be put in the constitution because it would have been insulting to the general public to think anybody would deny the existence of the right to preserve your light, the right to self-defense, or the right to raise your own children. all of these grounded fundamental rights, granted in the law of every state, are the
privileges even though they are not mentioned in the first 10 amendments. host: this is justice elena kagan on how the constitution changes. this is from 2010. [video clip] >> the 14th amendment was an enormous break after the civil war and created a different constitution for america. so partly, the changes come in that way. but partly they come outside the formal amendment process as well. if you look at the specific intent of the drafters of the 14th amendment, they thought that the 14th amendment was perfectly consistent with segregated schools. you can't really argue otherwise as a historical matter. but in brown, the courts said otherwise. and step by step by step, decision by decision, in large
part because of what justice marshall did, we got to a place where the courts said, it is inconsistent with the principle of equal protection of the laws that the drafters of the 14th amendment laid down. it is inconsistent with that principle to have segregated schools. so that is a way in which change can happen as well. host: how does her scholarship differ from what you are proposing in this book? evan: there's a lot that she said that i entirely agree with. i agree that the 14th amendment did radically transform the country. it was designed precisely to do that. i agree with her that the principles that are embodied in the 14th amendment took years, decades, nearly a century to come to a point where you had an institution in the supreme court that was willing to implement them. to that extent, i have no
quibbles with saying that the law does change. the law changed from upholding segregation to brown, rejecting segregation in public education. but when justice kagan goes on to say there is no way you can deny as a historical matter that the framers of the 14th amendment endorsed segregated schools, that is demonstrably not the case. it took several years worth of debates about what to do in the district of columbia between republicans before there was anything resembling sustained discussion about just how the 14th amendment interacted with segregation at all. this was not a situation where we had framers swearing up and down that this would not touch segregated schools. you have a couple offhanded statements that are undeveloped . you have a number of republicans who by that time or on the record as opposing segregated schools. and you have then several years
later many of the same people and many of the same people drawing upon resources, interpreted resources and principles that were articulated at the time the amendment was ratified to talk about just what to do under the 14th amendment with respect to segregation. randy and i argue that by the time the 14th amendment was ratified, there was a privilege enjoyable by all citizens to have access to public institutions that were central to civic life. and we argue that not at the time of the 14th amendment's ratification, but shortly thereafter, public schools had a sufficiently wide spread. it included the right to not be arbitrarily excluded from common
schools. the fact that it took decades and brown v. board of education, and also the military and a compliant congress and an entire movement agitating for the delivery of the constitutional promises to make brown and desegregation the law of the land should not lead us to think that the 14th amendment itself either endorsed or just did not take a position one way or another on something that is so fundamental to our civic life as public schools. host: we are at the 30 minute point of our conversation. we have been talking about the 14th all this time. i am going to take a minute and put the 14th amendment on screen, at least the first section and the fifth section, the two you write about in the book, so those who don't know it by heart can remember.
all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united dates and the state wherein they reside. no state should make or enforce any law that 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 jurisdiction the equal protection of the laws. section five, the congress shall have the power to enforce by appropriate legislation the provisions of this article, ratified in 1868. your readers will get a history of antebellum debates and also the reconstruction era debates that led to the 14th amendment, and i want to spend a little time because the history is very rich and it. first of all, randy barnett, before this enactment, what was the view of citizenship that the constitutional -- our original
constitution, 1787 document, espoused? host: i -- randy: i am going to let evan answer that question because he has done much of the work on the development of citizenship that we capture in the first two chapters. but i want to go back to an earlier point. i meant to make it earlier, but i didn't. many people today judge constitutional arguments based on the results. so they said, here are my political priors, here are my political preferences. if your theory does not match up with my political preferences, i reject your theory. or the only good theory is one that matches up with all my political preferences. the collaboration between evan and myself illustrates that that is not the only way one can go about doing constitutional scholarship or constitutional theory, because evan and i do not share the same political views down the line. and frankly, i am not all that
aware of all the political views he does have. i think he might be more aware of my views because i am more public about them and he is younger than i am, but i am not aware of all the views he has because in the years we collaborated on this book we did not discuss those views. we instead focused on the evidence of what the meaning of the text was, then we let the evidence and the meaning of the text, we let the chips fall where they may. first comes the meaning of the text, then we come to the implications of that meaning for results. at that point, then you can judge whether you think the constitution is a good constitution because it leads to good results, or is a bad constitution because it leads to bad results. but that is a separate judgment than figuring out what the constitution says. a collaboration between two people like evan bernick and myself, who do not agree on every political position, illustrates the value of looking at the constitution first and then only looking at political consequences as a result of that. host: to citizenship and how it
was actually enumerated in the original document? evan: you do have the definition of citizenship -- you do not have the definition of citizenship laid out. you have the qualifications for the presidency. you have a privileges and immunities clause that says citizens, that several states shall be entitled to all the privileges and immunities of citizens in several states. but we do not have a definition of citizenship. the constitution does not lay that out in the text. one of the most are markable features of the amendment is that it does for the first time explicitly take a position on what citizenship is, and it is a broad and inclusive citizenship that we purport to show was initially developed by abolitionists.
and also the recognition that members of a particular policy may have entitlements over and above baseline protections for national -- natural rights that enable them to participate in governments, to participate in civic life, and to receive the benefits of things that go over and above the baseline requirements that governments need to follow in their treatment of all people. many of those additional privileges come by state expense. they are provided through funds even by taxation. one of the ideas was that citizens are entitled because they are paying taxes, etc. two additional services that are calculated to secure their natural rights and also there
civic equality. host: among the abolitionists who gave rise to the 14th amendment,randy, you credit three. frederick douglass is well known. but there was a new name to me. who was he? randy: he was a very iconic lawyer from western massachusetts, who wrote a great deal. when i was in college, i wrote one essay of him article -- i read one essay of him critical of the constitution. it was not until i was teaching that i read "the unconstitutionality of slavery." what could anyone have argued in 1845 against the constitutionality of slavery, which took the civil war to abolish? i found out he had written this book, then i found out that was part of a six volume collective works of lysander spooner, so i
became more familiar with him. ultimately, i ended up raising money because he is buried in forest hills cemetery in boston and i went to visit his grave and it was just marked by a bronze plaque that had been putting by somebody -- put in by some of the i knew the 1970's. i raised $10,000 to erect a monument on his grave at forest hill cemetery. then i was able to arrange with the owners of his boyhood home in massachusetts to put a plaque commemorating that as his boyhood home in western massachusetts. he was a great antislavery theorist who has been dismissed and marginalized as an eccentric crank. but in fact, he was very well respected within the abolitionist movement and was very influential. his work crossed a number of different competing factions within the abolitionist movement. his approach to constitutional interpretation is how i became an originalist. i am probably the only person
who became an originalist because i read lysander spooner's "the unconstitutionality of slavery." i thought, if that is originalism, i think i can get behind it, because i was not an originalist. i became an originalist because of lysander spooner. host: another name you says belongs on the list is congressman john bingham. who is he? evan: john bingham is correctly regarded as the primary architect of the specific text of the 14th amendment. he is a congressman from ohio who spends a lot of time in an area, one of the few areas where abolitionists could propagate their ideas and interact with one another, seeks to persuade people outside the movement without fear of getting killed or otherwise persecuted.
anybody who has spent a significant amount of time with him is going to be a little bit bothered by his long-w indedness. he goes on for pages and pages of the congressional record in lavish tones, very ornate language. but he has a very sharp legal mind when it comes right down to it. the sharpness of that mind has been under appreciated in 14th amendment scholarship until fairly recently. they went out of their way to bingham bash. they could not say enough negative things about his holy headed, muddleheaded thinker, who could not identify what he meant by the bill of rights in a way that anybody could parse.
he would speak of the immunities clause as part of the bill of rights. from today's perspective, that looks totally weird and idiosyncratic. but if you focus enough on the historical record, you will find that he was articulate in understanding the bill of rights . it was in the mainstream of republican thought. as bingham himself was in the mainstream of republican thought. one of the difficulties with him is several years after ratification he seems to contradict things he said before ratification. you need to be careful with him, but he is a tremendous intellect and as far as the impetus within the republican party for a constitutional amendment goes, he was as responsible for that
push, that insistence that we really are transforming federalism if we are going to pass all these new civil rights statutes. we ought to make sure we have the constitutional authority to do that in a way that is going to stand up under judicial review and that future congresses will respect. once president andrew johnson vetoed the civil rights act of 1866, as well as the reauthorization, and it became clear to republicans that this was not a sure thing, we better take measures to prepare for a future if we cannot depend upon our own republican president to carry out our mission, we had better put this in the constitution so it can never be dislodged. bingham was the leader of that effort within the republican party. host: you write in the book that soon after its passage congress and the courts began misinterpreting the meaning of the 14th amendment. why did this happen?
>> [crosstalk] evan: go ahead, i have talked for too long already. randy: we can only speculate as to why because this goes to motives and they did not say what their motives were. i would say the most benign motive to attribute to the court is this was a radical change, or a fundamental change, in our federalism. many of our republican justices, because it was being undermined by justices appointed by abraham lincoln and president grant, many of these republicans wanted to see a return to the federalism that preexisted the civil war, because that is the federalism they knew and they liked. so they really undercut using constitutionalist methods and amendment they did not fundamentally agree with, and wanted to restore the federalism they remembered from their youth. it goes to show that evolving, living constitutionalism can be put to bad uses as well as good uses.
we would have all been much better off if they had actually stuck to the original meaning of the text because the meaning of the text must remain the same until it is properly changed by amendment, and it was properly changed by amendments, then they unchanged it without an amendment. evan: it was really one brief glorious moment during which wdb doughboys -- w.e.b. dubois mentioned thorough commitments for providing not only for the freedom of black people, but the economic freedom, the social opportunities, integration into the broader civic order. it was the most radical of abolitionists. the story has been told countless lee, including in his own black reconstruction, and we could not improve upon that. but the story is ultimately a tragic one in respect to the
short-term when it comes to just how thoroughly the promise of this glorious amendment was compromised by -- we focus our attention on the judiciary, but the forces within the south that went out of their way not only to enact the black codes, but perpetuate violence on a scale that even exceeded or at least was comparable to the antebellum period and its ferocity and viciousness with the rise of the ku klux klan. our story is not we had the 14th amendment and everything was good for a long time and then only a few decades ago some justices started messing it up. this was a problem from the beginning. i think it is a testament to the radicalism of the 14th amendment that these forces were so threatened by it that they went
out of their way to undermine it. host: it -- randy: it is also a testament to the value of a written constitution because it was in the constitution even though it was undone by the supreme or. we are always free to come back to it because it is there. host: tell us about the course you're teaching today? evan: it is criminal law. we have spent the last three weeks focusing on self defense. a lot are focused on this now in light of the rittenhouse trial, which i am planning to address today. one of the most important things i tried to do is keep students and professors in touch with how the law affects people on the ground, not only that they might understand what the law is but
that they might recognize their power to change it and a lot needs to be change, particularly in the area of criminal law. host: i will keep you for a few more minutes and then let you get to your class, and randy barnett will stay with us. if you talk about perhaps the not so good job the courts and congress did in fulfilling the promise of the 14th amendment, let me move to the modern age. one of the specific cases you cite is justice antonin scalia during a mcdonald v chicago case in march of 2010. we pulled that clip so we can hear it. tell us what this argument is all about here. [video clip] >> do you think it is at all easier to bring the second amendment under the privileges of the immunities clause than it is to bring it under our established law of substantive due process? >> justice scalia, i suppose the
answer to that would be no. >> if the answer is no, why are you asking us to go through 150 years of prior law when you can reach a result under substantive due process? unless you are bucking for a place on some law school faculty. [laughter] >> no. no, i left law school a long time ago. >> what you argue is the darling for sure, but it is also contrary to 140 years of our jurisprudence. host: you cited that exact phrase, that he called it the darling of the professoriate. can you help people understand this question? randy: i was there that day when that exchange took place, and i am someone who is a friend and colleague of the lawyer who was arguing that case.
i thought that was a low moment in justice scalia's distinguished career because he, if anybody was associated with originalism, it was him. he is mr. originalist. and yet here he is not just disagreeing with an advocate who is arguing in favor of the original meaning of the privileges or immunities clause, but really making fun of him, joking about him. we could rephrase his question. why would you argue for us to follow the original meaning of the constitution rather than a 140 year mistaken set of judicial rulings by supreme court justices in black robes? you could ask the same question the other way, but he did not ask it that way. what is at stake here, i think, is whether some conservatives, and whether justice scalia himself, wanted to open the door to legitimate the protection of fundamental rights that were not
written in the constitution when they had believed they had closed the door to legitimate it using the doctrine that justice scalia said he disapproves of. the conservatives thought because the substitute due process theory is illegitimate we can limit it. but if you accept the privileges or immunities clause theory, it would not be illegitimate, and maybe then you cannot limit it. justice thomas in this case, who came out the other way in his opinion, said you can limit the privileges or immunities clause by doing the historical work that originalists do to find out what the real meaning of the privileges or immunities clause is in the 14th amendment as a whole. that is what we do in our book. getting back to the beginning of our discussion, one reason to be helpful that we might actually affect change on the supreme court's thinking is we supply the constraining principles of history, the constraints
provided by history, so these are not an unlimited warrant for judges to make up whatever rights they wish. there are as many constraints to figure out what the original meaning of the privileges or immunities clause is is to figure out what the original meaning of the first and second mm and r, justice scalia not withstanding. host: let me turn to you for some clothing thoughts -- closing thoughts. what do you want the average joe, average jane listening to us to take away from our conversation? evan: this book project for me was animated by a conviction of the importance of demonstrating beyond any doubt that mass political movements for human freedom are possible within our constitutional system and documenting one of the most profound moral achievements in human history. the primary motivation for me, as i was making my way through
this history that has been canvassed so many times and investigating clauses that have been the subject of hundreds of pages, if not thousands of pages, worth of research is just how exciting and inspiring this story is. one of the big takeaways from this story is that genetics in the context of politics is not destiny. we have always been our power to make the world all over again, and that is exactly what the abolitionists and the republicans who followed in their footsteps did with the 14th amendment, transforming a structure of government that had operated under proslavery forces and instruments of domination into liberation. i am hopeful that other readers will take the same amount of inspiration from this work as i took from the experience of putting it together with randy. host: we will say thanks to you
at this point and let you teach your class. we appreciate you taking time with us. evan: thank you so much, i really appreciate it. host: we have about four minutes left and we will end. what i want to turn to is making this relevant for people. through the age of covid, there have been a lot of disputes about states rights versus federal rights. does your work that you have concluded in this book have a bearing on all these big discussions we are having about whether states or the federal government has the final say in decisions such as vaccines and other policies around, for example, covid? randy: not so much that's because that is really a matter of the structural powers that are given to the federal government, and our book is about the rights the federal government is authorized to protect. where it actually does have a potentially big impact is where our book challenges some
progressive orthodoxy. in particular among the privileges or immunities of citizenship are the economic liberty to acquire, possess, use, and enjoy real and personal property, as well as to enter into contracts. in other words, economic liberties were an essential part of the rights that were protected by the civil rights act of 1860 six, then constitutionalize by section one of the 14th amendment. that means that as governors of states, or as state legislatures, but really most of the covid restrictions have come from the executive branch, not from state legislatures passing laws to address covid. as the economic liberty of businesspeople and other employees to go about their professional lives has been affected by edicts that have been issued by executive branch officials or governors of states, it is not that those edicts are all unconstitutional, but they should all be subject
to being challenged, to see and to have a federal court if necessary examine to see if in fact they are infringing on the privileges or immunities of citizens of their states. that is something that outside of the context of the free exercise of religion, which is an enumerated right, you do not see federal courts protecting. in that sense, this book would provide a basis for federal courts to protect economic liberties of any arbitrary restriction, including restrictions associated with covid. host: you talked about how lysander spooner influenced your thinking at an earlier point in his career. it seems this book has also had a role to play in the evolution of your thinking. how have you changed as a result of this work intellectually, and where do you see it going from here? randy: it has deepened my view that i have had for a very long time, that the story of our constitution does not begin or
end at the founding. i think many of the criticisms that are made of our founding generation are valid. many of them are overblown. the seeds of liberty were planted at the founding by the declaration of independence and eventually harvested. but the rest of our constitutional history is about the story of the development of those seeds into a full-blown, as my colleague says, liberation movement, that culminated first in a civil war, that turned out to be a civil war over slavery, and culminated in the amendment of our original constitution. and of the people that are responsible for that, responsible for the liberty party, the free soil party, they should be part of our constitutional history as well. john bingham should be, jacob power should be. -- jacob howard should be. our book is a story of these heroes. these are heroes that have been neglected by our constitutional narrative. the more you learn about them, the more inspired you will be.
host: randy barnett, thank you for being on c-span today along with your co-author to talk about the original meaning of the 14th amendment. we appreciate the hour with you. randy: it is always good to see you, susan. [captions copyright national cable satellite corp. 2021] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> all q&a programs are available on our website or as a podcast on our new c-span now app. >> c-span is your unfiltered view of government, funded by these television stations and >> cox is committed to allowing people to have internet.
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newspaper joins us. and the carroll doherty talks about the center's new report identifying nine categories of voters in the u.s.. washington journal is next. ♪ host: good morning. it is monday, november 15. today, the senate meets at 3:00 p.m. eastern while the house returns at 2:00 p.m. as the build back better act moves to center stage in congress. meanwhile, president biden is set to sign the infrastructure investment and jobs act into law at a bipartisan ceremony this afternoon. before we get to those looming battles of the week ahead in washington, we are spending this first hour hearing from you about your political par