Friday, June 25, 2021

Originalism, Methodology, and the Reconstruction Amendments

Guest Blogger

For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).

Jennifer L. Mascott

Professor Kurt Lash’s compilation of documents surrounding the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments is an indispensable outgrowth of his scholarship on the Reconstruction Amendments spanning well over a decade.  See, e.g., here, here, and here.  The content of individual rights secured against the States by those amendments and their relationship to the Bill of Rights continues to be hotly contested in modern jurisprudence.  Just next term, the Supreme Court will again evaluate the scope of rights related to the pre-born, in the context of Section One of the Fourteenth Amendment.  See Dobbs v. Jackson Women’s Health Organization.

Lash’s volumes are a critical resource for anyone who values the historical meaning of this deeply important constitutional text—a group to which most jurists at least nominally belong.  Students, practitioners, and academics will benefit from Lash’s collection of sources that excavate the legal perspective and cultural understanding of the mid-19th-century Americans whose representatives ratified these amendments.

Starting with documents from the time of the nation’s founding through the ratification of the Fifteenth Amendment, Lash’s volumes curate sources ranging from newspaper articles to public speeches and letters to judicial opinions and congressional debates.  The collection reflects Lash’s original public meaning methodology for constitutional interpretation.  Readers sorting through Lash’s two-volume collection will better understand the source of the conclusion of his rich legal scholarship that the Fourteenth Amendment’s Privileges or Immunities Clause secures protection for the federally conferred rights explicitly included in the Constitution, including those in the Bill of Rights.  See, e.g., here.

My symposium colleagues have amply described the content of Lash’s latest work.  My entry instead will briefly sketch Lash’s interpretive methodology and substantive conclusions regarding the meaning of the Amendments, in particular the Fourteenth.  Lash’s work is important and interesting and informative of his approach to identifying the essential documents related to the Reconstruction Amendments.  Such as, for example, his choice to start with a chapter on late eighteenth-century sources like the Declaration of Independence and Federalist Papers, more commonly associated with interpretation of the original 1788 constitutional text.  Lash’s interpretive enterprise is grounded in his position that the Bill of Rights and original constitutional text were designed as structural safeguards of liberty and secured “the interest of the several states,” but that the ordinary understanding of the Bill of Rights had transitioned to a greater focus on the “rights of national citizenship” by the mid-19th century.  See Kurt T. Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation.  The collection of sources in his recent Reconstruction volumes provides key documents tracing this progression.

 The bottom-line conclusion of Professor Lash’s extensive scholarship is that the Privileges or Immunities Clause of the Fourteenth Amendment adopts against the States the substantive individual rights embedded in the federal constitutional text, and its amendments—and only those rights.  See Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment, 99 Geo. L. Rev. 329 (2011).  Similar to Justice Clarence Thomas’s concurring opinion in McDonald v. City of Chicago, 561 U.S. 742, 813 (2010) Lash finds significant substantive rights protected against the States by the Privileges or Immunities Clause of the Fourteenth Amendment.  See Kurt T. Lash, The Origins of the Privileges or Immunities Clause Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. Rev. 1241 (2010); see also Adamson v. California, 332 U.S. 46, 71-72 (1947) (Black, J., dissenting) (finding the protections of the Bill of Rights to be applicable against the States through Section One of the Fourteenth Amendment).


This interpretation might lead readers to conclude that Lash is a proponent of a form of total incorporation—the interpretive view that the meaning, and content, of the 1791 Bill of Rights addressed to the federal government has been adopted wholesale into the Fourteenth Amendment.  But that would be incorrect.

Lash instead has written strenuously against any continued adherence to an “incorporation” theory of interpretation—either partial or full incorporation.  Current Supreme Court jurisprudence interprets the Fourteenth Due Process Clause to partially incorporate the protections of the Bill of Rights.  But Lash suggests this doctrine leads to imprecision.  Constitutional interpretation should consist of identification of the public understanding of the text at the time it was added to the Constitution—which for the Fourteenth Amendment is 1868.  See Re-Speaking the Bill of Rights: A New Doctrine of Incorporation.  Consequently, in Lash’s view, interpretation of the Fourteenth Amendment must rely on the public understanding of the underlying privileges and immunities, or individual rights, as of that 19th-century date.  Cf. Mahanoy Area School District v. B.L. (Thomas, J., dissenting).

According to Lash’s research and study of other scholarship, public understanding of the text of the Bill of Rights significantly changed between the time period of the Founding and Reconstruction.  See Kurt T. Lash, Beyond Incorporation.  So to identify the 19th-century public understanding of those protected rights, “Fourteenth Amendment historical scholarship must take into account the interplay between nationalist and localist principles in the debates which led to the drafting and adoption of the Fourteenth Amendment.” Id.  Further, the historical record “suggests that federalism played a role in the original understanding of Section One and in the assumed scope of congressional power under Section Five.”  Id.

Slaughter-House Cases

Lash also parts ways with another widely held scholarly position—the idea that the Slaughter-House Cases, 83 U.S. 36 (1872), improperly and irredeemably narrowed the scope of the Fourteenth Amendment.  In that decision, the Supreme Court had concluded that the Fourteenth Amendment protects only a narrow set of rights associated with federal citizenship, and not with state citizenship.  Lash, for his part, believes this conclusion can be squared with the understanding of the Privileges or Immunities Clause that he has derived from his extensive study of evidence of the understanding of the Clause from the relevant time period.  See, e.g., The Origins of the Privileges or Immunities Clause Part I at 1244 (observing that Supreme Court Justice Miller’s interpretation in Slaughter-House “not only mirrored the views of the man who drafted Section One [of the Fourteenth Amendment], it also followed a well-established strain of antebellum anti-slavery Republican thought”).

Lash’s scholarship concludes that the Privileges or Immunities Clause of the Fourteenth Amendment is not an open-ended source of protection for a wide range of unenumerated state common law rights.  The meaty substantive content of the Clause, rather, consists entirely of the enumerated rights expressly included in the underlying federal Constitution.  This aspect of Lash’s scholarship should hold significance for any jurists open to reevaluating the scope of the Privileges or Immunities Clause in modern doctrine.  One point apparently contributing to the reticence of some members of the McDonald plurality to revisit reliance on the Due Process Clause for substantive rights, was the risk that a privileges or immunities analysis would open the door to an excessive number of new rights.  See, e.g., 561 U.S. at 791 (Scalia, J., concurring) (explaining that he had acquiesced in the due process incorporation approach “‘because it is both long established and narrowly limited’”).  Lash’s research should help to allay those fears. 

As Lash’s extensive work unpacks, Section One of the Fourteenth Amendment provides in part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  U.S. Const. amend. XIV, section 1 (emphasis added).  This language is similar to, but distinct from, text in Article IV of the original Constitution providing that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”  See U.S. Const. art. IV, section 2, clause 1 (emphasis added).  Lash notes that many have concluded the meaning of the Fourteenth Amendment essentially parallels the meaning of the strikingly similar phrase in Article IV.  But Lash’s examination of the use and understanding of the phrase “privileges or immunities of citizens of the United States” from the time leading up to and shortly following ratification of the Fourteenth Amendment suggests a different story.  According to Lash, the phrase referencing U.S. citizens had a well-developed meaning by the time of its inclusion in the Fourteenth Amendment.  And the principal author of the amendment specifically amended earlier draft text to make clear that the privileges and immunities of the Fourteenth Amendment contrast with those of Article IV.  See Origins of the Privileges or Immunities Clause, Part I, at 1242-43.

In particular, Lash declined to look just at the individual terms “privileges” and “immunities” to identify their 1868 meaning, instead evaluating the phrase “privileges or immunities of citizens of the United States” in relation to similar longstanding terms of art.  See id. at 1245 (referencing “broader term[s] of art, such as ‘privileges and immunities of citizens in the several states’ or ‘privileges and immunities of citizens of the United States”).  The preexisting legal content of the concept of privileges and immunities contrasts with certain other constitutional phrases, such as the Article II reference to “officers of the United States” related to the Supreme Court’s Arthrex decision this past week.  See Arthrex v. United States (evaluating the meaning of the “inferior officers” category referenced in Article II).  The Appointments Clause reference to officers of the United States apparently incorporated just the ordinary meaning of the term “officer,” not a special new legal meaning.  See Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 471-80 (2018). 

The contrast between constitutional phrases with a legal meaning like the Privileges or Immunities Clause and those incorporating the everyday meaning of a term like “officers” tracks key interpretive methodology scholarship by Michael Rappaport and John McGinnis who have explained the importance of the perspective of a trained lawyer where legal terms or terms of art are in play.  See generally Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751 (2009).  Certain constitutional phrases or terms might incorporate the ordinary meaning of each independent word in a given phrase.  Other phrases might instead come freighted with a textured legal meaning.  The first step in constitutional interpretive work is identifying which approach applies to the term or phrase under review.

Lash notes that from Blackstone and throughout the Founding Era and antebellum period, “pairing of the terms ‘privileges and immunities’ was broadly understood to denote specially or uniquely conferred rights.”  Origins of the Privileges or Immunities Clause, Part I, at 1244.  When included with a surrounding phrase addressing citizens, “the phrase took on an even more specified meaning, depending on the status of the citizens.”  See id.  Therefore, the privileges and immunities of U.S. citizens referenced in the Fourteenth Amendment would need to be evaluated separately from the privileges and immunities of state citizens discussed in Article IV.  Lash explains that “this distinction was well-developed in antebellum case law and political argument, and it played a critical role in free-state constitutional rhetoric during the debates over the admission of new states and in the struggle to prevent the nationalization of slavery.”  Id.

At bottom, commentators around the time of ratification of the original Constitution “broadly read” the Article IV phrase “privileges and immunities of citizens in the several states” to “refer to a limited set of state-conferred rights that states had to bestow equally upon their citizens and sojourning citizens from other states.”  In contrast, antebellum usage of “‘privileges and immunities of citizens of the United States’—the closest precursor to the language of the Privileges or Immunities Clause” demonstrated that the Clause meant “rights expressly conferred by the Federal Constitution.” Id. at 1244-45.  

To demonstrate this point, Lash’s 2009 article on the Fourteenth Amendment Clause unpacks statements from sermons, books, legal treatises, newspapers, political tracts, judicial opinions, public political debates, and similar phrases from nineteenth-century treaties.  See generally id.  Within Lash’s interpretive methodology of original public meaning originalism, examination of this broad range of sources helps to identify the “likely public understanding of a proposed constitutional text, with special emphasis placed on those with the authority to ratify the text and make it an official part of the Constitution.”  Id. at 1245-46.  By emphasizing the public’s understanding of the given text, the methodology appropriately “track[s] the normative political theory of the Founders: popular sovereignty.”  Id. at 1247.

Many of the sources underlying Lash’s substantive work are now helpfully collected in Lash’s newly published two volumes of source documents related to those amendments.  Fittingly, the volumes begin with a section titled “The Antebellum Constitution” containing four subsections.  The first subsection includes three foundational documents—the Declaration of Independence, the Northwest Ordinance, and the original Constitution along with the first twelve amendments.  See Lash, The Reconstruction Amendments, vol. 1, at v.  The next two subsections include sources from both the eighteenth and nineteenth centuries—with one section addressing structural constitutional principles like federalism and the other addressing antebellum law and politics as they relate to slavery.  See id. at v-vi.  The federalism subsection contains works such as Federalist essays, early constitutional commentaries by St. George Tucker, James Kent, and Joseph Story, the landmark 19th-century Supreme Court opinions in McCulloch v. Maryland, Corfield v. Coryell, Barron v. Baltimore, Luther v. Borden, and Campbell v. Georgia as well as letters and speeches from public figures, state resolutions, and the text of the Alien and Sedition Acts among other sources.  Id. at v.

Lash finds these pre-ratification sources critical for interpretation because the key players in the development and ratification of the Reconstruction Amendments all “shared a common constitutional heritage.”  Id. at x.  Citations and quotations from sources like the Kent and Story commentaries and Madison’s Federalist Papers “are ubiquitous throughout the Reconstruction debates.”  Id.  The core Reconstruction-era debates over fundamental issues such as abolition of slavery, exclusion of former rebel states from Congress, and the choice between proceeding by constitutional amendment versus legislation “all involved competing conceptions of federalism and liberty—conceptions that emerged in the years between America’s founding and the Civil War.”  Id.

As this symposium lays bare, Lash’s most recent work is rich with source material to enable scholars and students to continue wrestling with the meaning, and scope of protection for individual rights and constitutional principles embedded in the Reconstruction Amendments.  The volumes are well worth close study.  Lash’s work should be seen as a critical resource for both jurists and academics, as the meaning and application of Fourteenth Amendment continues to play a fundamental role in some of the most foundational issues of our time related to individual rights and the scope of federal governmental power.

Jennifer L. Mascott is Assistant Professor of Law at Antonin Scalia Law School, George Mason University. You can reach her by e-mail at

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