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Fourteenth Amendment, How I Love You, But You Are a Mess

Many left liberals, conservatives and libertarians who try to make “respectable” arguments wish to think of themselves as the heirs to the late 18th Century classical liberal tradition. Some on the non-respectable Right and Left repudiate such. The Fourteenth Amendment to the US Constitution, passed after the Civil War, is a glorious mid 19th Century classical liberal text that relates back to the classical liberalism of late 18th Century America and applies such norms (though through mid 19th Century eyes) to the states. When the rubber hits the road, however, it’s also a complicated mess.

What brings this observation to mind? The Trinity Lutheran Supreme Court decision and a recent dialog on it between Professors of Law Randy Barnett (Georgetown) and Bruce Ledewitz (Duquesne). This case involved a state law and policy that denied a religious entity access to public funds that were otherwise available to secular entities. The case was litigated on federal constitutional grounds. The First Amendment’s religion clauses are implicated. As is the Fourteenth Amendment.

First, here is the original offending article by Bruce Ledewitz. Next, is Randy Barnett’s response. Then, Ledwitz’s rejoinder. Finally, Barnett’s response to the rejoinder.

From Ledwitz’s first:

But, from the point of view of originalism, the decision was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.

My observation: Classical liberalism has “liberty” and “equality” as ideological book ends. The First Amendment to the US Constitution is such a “liberal” text. It’s clear the Free Exercise Clause validates a “liberty” right. The Establishment Clause often (but not always) validates an “equality” right. I agree with Ledwitz that this doesn’t seem to be a free exercise of religion/liberty issue.

However, Ledwitz’s understanding of the Establishment Clause is questionable. Further, Trinity Lutheran did involve an equality or equal treatment issue. Whichever text ends up doing the work, arguably the outcome was correct on some kind of originalist grounds. The Fourteenth Amendment guarantees some kind of substantive norm of equality or equal treatment.


This is from Barnett’s response:

I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist–indeed every living constitutionist–understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an “establishment of religion” was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an “establishment of religion,” the First Amendment’s wording “make no law with respect to” forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated–perhaps exclusively–as a federalism provision, expressly acknowledging that Congress had “no power” in this area, with all powers pertaining to religion reserved to the states.

[…]

In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion.  …

And from Ledwitz’s rejoinder:

4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist  perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not.

I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy’s reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn’t fixed. (That was also true of Justice Scalia’s majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry–why are 19th century opinions relevant to the original public meaning of the second amendment?)

By the time we get to Barnett’s final response, a different part of the 14th Amendment is discussed as they argue over “originalism’s” viability. Barnett tackles the following assertion by Ledwitz:

To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.

Yes, I’ve seen it argued that any theory of law that holds Brown v. Board of Education to be wrongly decided simply isn’t viable. So Barnett counters with:

Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this.  …

What to make of all of this?

Over the years, I followed this “originalism” debate in constitutional law fairly carefully. Perhaps I could be categorized as a “faint hearted originalist.” The kind of originalism I would endorse is similar to that which has been espoused by among others, Barnett, Akhil Amar, Jack Balkin and Timothy Sandefur.

One issue I have is I often see promoters of originalism framing it as though if we don’t interpret the Constitution as “originally” intended, the Constitution can mean “anything.” Well, here I stand for the proposition I don’t think the Constitution should mean “anything” five members on the Supreme Court decide; there should be constraints and unhappy endings.

Where I do get a bit perplexed is given the broad generalities contained in the Constitution’s text, and other ambiguities in the record, there often is more than “one” right answer to legal questions presented such that Justices will often have latitude on fundamental constitutional questions by virtue of the way the system is structured. Yet only one view can prevail. And issues of fundamental import turn on which view prevails.

Further, sometimes the “rightest” originalist answer is indeed not viable (because Brown would be wrongfully decided) but there are other “originalist” answers that might “work.” So originalists do, as I see it, get to pick and choose from the different kinds of originalisms to suit their outcomes.

Again, that doesn’t meant jurists should be unconstrained by rules or that any degree of choice means the Constitution ought and does mean anything a majority on the court decides.

Interpreting the Bible is analogous. We often hear certain preachers who argue for “one correct” understanding of the Bible say “it means X and only X” in an objecting sense, when in reality it’s possible that it could also mean Y and Z. Yet it’s also true that certain positions — A, B & C — are not tenable. Certain understandings are more plausible than others; but there are also multiple plausible understandings of the text that contradict one another, where only one outcome is entitled to prevail.

So if someone said that the Bible teaches a Giraffe tempted Adam and Eve in the Garden of Eden, that’s an easy one. It’s false. End of discussion. Other questions aren’t so easy (like what fruit was it that Eve was tempted with? Or what did Jesus mean when He said you should eat His flesh and drink His blood?).

So how do we understand Brown v. Board of Education and originalism? As Ledewitz alluded to above, it has been claimed that under the original expected application of the 14th Amendment’s text, the political legality of racial segregation was preserved (that is, the framers and ratifiers didn’t think they were making racial segregation in railroads, public schools, marriage, etc., unconstitutional or something potentially outlawed by the 14th Amendment). Others, like Judge McConnell differ. And currently, as we know, the Supreme Court rules such unconstitutional under the Equal Protection Clause of the 14th Amendment.

Yet, as Barnett alluded to above, it was the Privileges or Immunities Clause that was meant to deal with this. Indeed, there is a strong case to be made that neither the Due Process NOR the Equal Protection Clause guaranteed ANY substantive rights, not against racial discrimination or ANYTHING. That both were entirely procedural clauses. The Due Process Clause targeted courts while the Equal Protection Clause targeted the executive. And held that if you were a “person” — i.e., a human being — you had to be held to the exact same set of procedural rules. And this was whether one was black, a Mormon, a Hell’s Angel (of whatever the mid-19th Century equivalent thereof) or a thief.

There was no substantive right in either the Equal Protection OR Due Process clauses to be free from racial discrimination, to practice one’s religion, to be a member of a rebellious club, or to steal. Rather, by virtue of your humanity, the same set of rules — whatever they may be — had to apply to all people.

This is something many people unaware of historical nuances of the civil rights don’t “get.” If a black person beats up a white person or vice versa, that’s assault and battery. There are laws on the books against assault and battery that have always dealt with this. Yet, law enforcement and courts run by majorities or those in power might simply decide not to apply the same already existing rules to selective disfavored groups. It doesn’t matter if it’s blacks, Mormons or members of the Hells Angels. If you are a person, regardless of character or trait, the same set of rules have to apply. But if the Hells Angel committed robbery, he could be so punished.

The withdraw of such procedural protection was a key method of systematic oppression of black people in Jim Crow. But it’s also possible to guarantee such protection while still permitting government distinctions on the basis of race.

However, the substantive right to be free from racial discrimination, though not something the procedural clauses of the 14th Amendment (i.e., Equal Protection) were meant to deal with, was still, as Judge McConnell argues something the framers of that amendment contemplated. Rather, they thought the Privileges or Immunities Clause should do the work.

So provided we just switched the Privileges or Immunities Clause for the Equal Protection Clause, Brown, Loving v. Virginia, etc., would be kosher? Not so fast. Even if Judge McConnell’s account is correct, look closely to what Barnett reported:

[N]early everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it.

Yes, it was the House and Senate’s responsibility to prohibit racial discrimination as a “privilege or immunity” of the 14th Amendment. There is a strong originalist case to be made — arguably the strongest — that it’s the jurisdiction of Congress to define by statute those substantive privileges or immunities. That the original meaning of the 14th Amendment was meant to provide a constitutional basis for the original post Civil War mid-19th Century Civil Rights Acts.

That would mean that even though such originalism teaches Brown was wrongly decided, Congress would still have the constitutional authority to enact such a decision and the Congress who passed the Civil Rights Act of 1964 could still have statutorily enacted Brown, Loving, etc. as a “privilege or immunity.” And they would have.

One day a few years ago, I was in a room full of very distinguished originalists in a private meeting at an ivy league location, where I was the least important person in the room. They agreed what I reported above was the best originalist understanding of the 14th Amendment. Since it was off the record, I’m not going to name names.

One person in the room noted that this understanding, though correct, was awkward. Given the original meaning of the Privileges or Immunities Clause of the 14th Amendment, we could get a new constitutional conventional with every new Congress. The response from the group was that originalists have to do the right thing and deal with unhappy endings.

There’s debate as to whether the 14th Amendment was even meant to incorporate ANY part of the Bill of Rights to apply against the states. Justice Scalia has admitted he’s not convinced it was, but accepted incorporation because of Stare Decisis. Philip Hamburger (Columbia University), one of the brightest conservative law professors, doesn’t think it was. And that means everything in the Bill of Rights — freedom of speech, establishment, free exercise of religion, rights of criminal defendants — is left to the states. That would mean Trinity Lutheran was wrong and Professor Ledewitz is right because “religion is left to the states.” If a state wants a Blaine Amendment or to establish the Roman Catholic Church, or the Unitarian Universalists for that matter, they could because religion is left to the states.

Or even if the Privileges or Immunities Clause was meant to include both rights contained in the Bill of Rights as well as rights against non-discrimination (i.e., rights to equal treatment) on the basis of race, religion (and other issues) it’s still Congress’ responsibility to pass legislation to protect those and for courts — including the Supreme Court — to attempt to do this is judicial usurpation of Congress’ role.

Don’t forget, even if religion is otherwise “left to the states,” all federal law trumps all state law. Federal statutes trump state constitutions. So if Congress wants to guarantee the free exercise of religion against state and local governments, that would trump any state law that would attempt to do otherwise.

This is a much different constitutional world than the one in which we currently live. And it’s one that most notable originalists don’t seem interested in publicly defending, because it’s not viable. But it’s arguably the most correct one according to the method of original expected application of the texts.

It’s certainly a form of originalism that I wouldn’t be comfortable with. Luckily, we have different kinds of “originalisms” from which to choose.

Image by angela n.


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Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer. ...more →

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92 thoughts on “Fourteenth Amendment, How I Love You, But You Are a Mess

  1. Yeah, good insight.

    Originalism with Stare Decisis.
    Originalism without Stare Decisis.

    And the whole game of pivoting from pointing at Leviticus to saying “We live under a New Covenant now” is not just for explaining why we’re going to Red Lobster after the service.

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  2. This is ridiculous: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.” And it’s a good exhibit of what’s wrong with public discourse in this country. The media give the credentialed a venue to mislead people to believe that there are no reasonable disagreements (either today or over 200 years ago), and the opponents have unspoken agendas (“the real purpose of originalism . . .”)

    I think the single principle that united most of the framers was a willingness to agree to disagree and find compromise, some of this was through federalism. The 14th Amendment changed things, and there are arguments on both sides as to the extent.

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    • Would you agree that the 1789 Framers kicked several difficult cans down into the future? If so, would you agree that the 1868 Framers believed that they were, at least, picking up those cans and resolving the underlying problems? And if the answer to both of those questions is “yes,” does that alter your gloss on whether either originalists or their intellectual adversaries have underlying agendas baked into their jurisprudential philosophies?

      (That question is in response to ‘s comment, but I’d invite anyone to chime in on it.)

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      • Would you agree that the 1789 Framers kicked several difficult cans down into the future?

        Consciously, no. I think they got an expansion of federal powers for defense, foreign policy, trade and taxation, with a new system of government that was representative enough to protect against the abuse of this power. By and large, I think the 1789 Framers thought the future would be going their way, so long as foreign powers didn’t interfere. It was really only with the creation of the National Bank that there was a significant recognition that simple commercial legislation may pack values antithetical to republican virtue.

        would you agree that the 1868 Framers believed that they were, at least, picking up those cans and resolving the underlying problems? I have a problem making large pronouncements on the 14th Amendment, because I think it was simply a device to address enforcement of the 13th Amendment, though its language is obviously broader. With something like religion though, the 1868 Framers are much less hostile to religion than the 1789 Framers, who wouldn’t have imagined requiring children to attend publicly-funded schools where they learn to read the King James Bible.

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        • Consciously, no.

          Wow. I think there were a huge number of issues where they basically kicked the can (slavery being the most notable, but things like military structure and basic rules of government and judicial review too).

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          • The Founders thought that slavery was not economically viable (per Adam Smith and others), so it would wither on the vine on its own. In the context of Burt’s question which gets to agendas, I don’t see a comprehensive anti-slavery agenda, as much as minimizing slavery as a federal issue to the extent possible.

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            • There was a pretty clearly split agenda, on which they kicked the can.

              Virginia (with its huge population of slaves) and other states wanted to preserve the single most valuable form of property in America. Others wanted “all men are created equal” to mean something closer to what it says. So they kicked the can, acknowledged slavery, even gave slave states extra representation (the 3/5ths compromise) but left the institution for another day. I don’t disagree that many thought the institution would die out (especially after the 1807 ban on importation), but in my mind it’s a pretty clear example of a major issue on which they kicked the can. Not, however, the only one, as (in my field for example) many of the critical foundational details of the judiciary were entirely undefined. Here’s the only thing the constitution says about the federal judiciary’s structure: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”

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          • Just curious, why do you say they kicked the can of military structure down the road? For all practical purposes, the USA didn’t have a standing army before 1945. (I.e. in 1940, the US had an Army of sone 100-200k, out of a population in excess of 130 million)

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            • Because that’s not true from a structural perspective (yes there was no large standing army capable of fighting major wars, but there was one, and the federal government paid for it). The US Army existed–essentially continuously–from 1791, and that’s a significant date when you’re talking about the Constitution.

              Americans hated standing armies (not least from experience with the colonial era), and you can see one reason in the 3rd Amendment. But post-articles of confederacy a lot of people thought you needed one anyway. The constitution kicked the can on the issue, before the country quickly realized that there needed to be some professional, national military. Because the can was kicked, our military development is a story about individuals making ad-hoc or crisis-driven decisions basically from 1815 through WWII.

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        • Consciously, no. I think they got an expansion of federal powers for defense, foreign policy, trade and taxation, with a new system of government that was representative enough to protect against the abuse of this power. By and large, I think the 1789 Framers thought the future would be going their way, so long as foreign powers didn’t interfere.

          We have to remember that the Founders wrote a Constitution in a world that was on the eve of a massive -revolutionary- process that would effectively change everything: communications.

          The constitution was written thinking of a structure similar to the European Union of today. Sovereign “countries” agreed on common defense, trade and foreign relations, and a monetary and customs union, but otherwise were independent (and, for XVIII standards, very, very, large) entities. Communications and transportation being what they were in the 1780s, you were limited by what a horse could carry as far as a horse would be able to carry it, be it news, or be it goods. What happened in North Carolina could not really affect New Jersey, since it would take weeks for even the news to travel from one to the other.

          By the 1830s all that was ancient history. The railroad and the telegraph changed it all. The EU model was found wanting, and, like good Brits, the Constitutional arrangement evolved on its own, from “The” United States, to a single country called USA.

          The Founding Fathers, like their contemporary Brits, were living constitutionalists. The idea that whatever they understood the Constitution to be in 1789 was supposed to be frozen in amber until an Ammendment specifically changed it would have looked crazy to them. Constitutions, they thought, were created by precedent, not by dwelving into old dictionaries to ponder what “arms” might have meant in 1789 (meant to whom? A farmer in the Carolinas mountains, or a Boston trader?).

          I’m uncomfortable with Originalism, because it seems to me a breaking with, and antithetical to, the British/Anglo-Saxon constitutional tradition. And it’s surprising, or not, that it only came to the fore in an environment of fast social change. It’s as if someone might have wanted to anchor ourselves in the past.

          This is not a legal argument, but being flexible and accommodating to whatever the current political and social understanding was has helped the Constitution survive 200-plus years. The more we insist that we must read it with XVIII eyes and understanding, the more brittle it will become.

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        • I think the decisions regarding incorporation of the Establishment clause are incorrect. The Establishment Clause is a guarantee that the federal government would not establish a national church or disestablish a state one. It is written as “Congress shall make no law” but it really means that the federal government has no power over state establishments of religion. If the federal government doesn’t have that power, then no federal court has the power to disestablish a state religion. And then they exercised that power that they did not have and declared that states can’t have an established religion because slavery is wrong.

          It doesn’t make a lick of sense.

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          • Kurt Lash and to a lesser extent Akhil Amar tackle this issue and try to give “sense” to it. Lash argues that by 1868 people considered themselves “privileged” to not have to live with a state established church.

            This is a nuance a lot folks don’t get but that Amar stresses: It’s not late 18th Century originalism that gets incorporated against the states, rather it’s the mid 19th Century understanding. This indeed would lead to a strange result — from the perspective of originalism — of having a slightly different understanding of the Bill of Rights apply if it dealt with whether the federal government was accused of violating the norm or a state or local government.

            My own view is that “privileges or immunities” relates more directly to individual rights; so it’s questionable whether the EC is logically able to be incorporated to apply against state and local governments. However, Amar shows that the framers of the 14th Amendment were concerned with both religious liberty AND equality. Much of what SCOTUS has the EC doing is validating religious equality rights. So some of the same results could be done through either the Equal Protection Clause OR the substantive norm of equal treatment that the Privileges or Immunities Clause was meant to grant (if one concludes that the EPC was actually meant to be a procedural, not a substantive clause).

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            • I would hold that since the 14th didn’t specifically say it was reversing the meaning of part of the First Amendment, which is a really, really big deal, it wasn’t reversing the meaning of part of the First Amendment.

              14th: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

              Not having an established church (whose building and preacher were paid by the city) in some town in Massachusetts was never a privilege or immunity of a citizen of the US. If the town’s citizens want to vote to pay him, then pay him, just like all the other useless city employees. If they want to vote to quit paying him, they can do that too. They can vote to raze the established church and sell the lot to Best Buy and Staples, or they can vote to buy land to build a new city church. Instead, we’ve taken the 1st Amendment to mean there can’t be a cross on city property.

              Now, applying the expansive reverse-an-amendment incorporation doctrine to the 11th Amendment, we find something not at all surprising.

              11th: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

              What the 14th does in that case is extend sovereign immunity to all US citizens. I mean, they talk about extending immunity to all US citizens right there in the text of the 14th. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” US citizens cannot be sued. We cannot have an established church, but at least we are sue proof.

              The 14th then applies to the 12th, making every US citizen an elector in the electoral college, because voting in the electoral college is a privilege.

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              • The argument is that John Bingham (there were others too, but it’s mainly JB) DID say that the 14th Amendment was meant to, among other things, guarantee rights found in the Bill of Rights.

                Though as I read the record it’s extremely tricky. Walter Berns, for instance, based on this evidence thought the P or I Clause meant to protect rights in the B.O.R. against state and local actors but he would stress the part of Bingham’s quotation where he notes the 14th empowered CONGRESS to do this. Just as they wrote the Civil Rights Act of 1866, they could deal with how the B.O.R would apply to the states as they wished in subsequent legislation.

                I’m not convinced that Berns gets it wrong here. Though as I noted, it’s not an understanding I am comfortable with.

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                • I think the Establishment Clause is problematic for incorporation because it basically says the states can have an established religion, and that such arrangements are beyond federal purview.

                  How would that pass on down logically, that county or metropolitan establishments of religion can’t be touched by state government?

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      • Certainly the 1789 Framers kicked two big ones down the road. I doubt that they would have been happy about how the slavery can was resolved — one group of states (a group too small to pass Amendments on its own) imposing its will on the other states by force of arms. I think the other big one — allocation of Senators and EC votes — is just now beginning to come to a head. Getting 38 states to approve a structural change is unlikely, IMO; military action is, let us say, impractical in this era of a large standing Army whose firepower greatly outweighs what civilians have access to; I still expect resolution to be ugly, but am not sure what form it will take.

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        • one group of states (a group too small to pass Amendments on its own) imposing its will on the other states by force of arms

          Sure. But I bet they’d be gratified that the attempt failed and their form of government endured that insurrection.

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      • It seems to me that the 1868 framers were much more Office Space Bobs “We fixed the Glitch” than intentionally reorganize the relationship between the Federal Government, the State Governments, the Citizens, and the Constitution itself.

        The 3rd and 4th sections are clearly technical in nature, to address specific potential legal claims in the aftermath of the war.

        the 2nd clause undoes the 3/5th compromise, and in theory, should make the 15th amendment redundant.

        the 1st clause, where all the action is, seems to me in intention to just cut off the most obvious ‘loopholes’ that could be used to restrict full citizenship rights to formerly enslaved – attempting to make clear ‘if you were born here, you’re a citizen here’ and ‘if you’re a citizen anywhere, you’re a citizen everywhere’.

        Though, also, the failure of the court system and the federal legislature & executive to squash Jim Crow before it became a fixture seems to me less a failure of the drafters of the 14th amendment and more a complete failure of the Rule of Law.

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  3. I deeply appreciate and enjoyed this meditation on the Fourteenth Amendment, the most significant alteration made to the 1789 Constitution. I’ve opined already on how (some) originalists appear quite ready to embrace incorporation of the First via the Fourteenth when it comes to Free Exercise challenges that favor Christian churches but otherwise seem to resist incorporation generally and the religion clauses in particular. What is Prof. Hamburger’s reaction to Trinity Lutheran, I wonder? If he were to stay principled in his originalism, seems to me that he ought to condemn it as wrongly decided.

    But I’ve three thoughts in reaction to your own analysis, @jon-Rowe:

    1. You refer to Brown v. Board a lot but don’t quote from it. It appears that you cite it as an icon or sacred cow of contemporary “respectable” legal analysis, something not to be questioned or criticized lest one lose respectability – and you imply that such criticism is the equivalent of attacking its result.

    As I read the text of Brown, it stands as a triumph of the living constitutionalist model. It is explicit in disregarding whatever the original meaning of the equal protection clause might have been and grounded very much in its evaluation of the evidence adduced in the case. Although it was written before the intellectual tool of “original public meaning” was developed in any meaningful way, any antecedent or foreshadowing of that concept is not found in Brown. So you’re absolutely right that Brown based its application of the equal protection clause on a then-contemporary understanding of the bare text of the Fourteenth Amendment rather than concerning itself with the legal structure its Framers were trying to erect.

    The problem comes not from reading Brown but from the challenge to the originalist: how would you have decided this case? If you are right that equal protection was intended and understood to apply to the executive, and that the privileges and immunities clause was what should have bound a legislature, the originalist seems to have easy egress from the trap of admitting that Plessy v. Ferguson and the Slaughterhouse Cases were somehow correct by advocating revival of the P&I clause. So why don’t you do that? (Or do you?)

    2. This passage…

    The withdraw of such procedural protection was a key method of systematic oppression of black people in Jim Crow. But it’s also possible to guarantee such protection while still permitting government distinctions on the basis of race.

    …bugs me. It bugs me because it seems to contradict itself: how can we tolerate race-based classifications explicitly built into the law while at the same time reading prohibitions against Jim Crow laws into the Constitution? I can see an exception for remedial governmental actions, but not for prospective disparate treatment.

    3. Your faith in the Congress of the mid-1960’s seems too strong to me. Congress does things that are popular, as a general rule.

    True, the mid-1960’s Congresses passed various Civil Rights Acts, to be sure and most prominently including Title VII of the 1964 act. This was praiseworthy but it also took tremendous effort to convince a majority of Members that enhanced political and economic equality for blacks was sufficiently politically popular that they could vote for it.

    A revived P&I clause would have provided a means other than commerce authority for Congress to have done what it did, but Congress would still have had to find the political will to act. Political will to enact an idea is almost inevitably a product of the popularity of that idea.* And it was a mighty effort to act even as it did. It strikes me as unlikely that, armed with a robust P&I clause, even that Congress would have drafted a law of the legal equivalence of Loving v. Virginia, given the immense unpopularity of mixed-race marriages at the time.

    * Why, then, is the current Congress so hellbent on repealing Obamacare and replacing it with something very close to nothing despite polling suggesting that this goal is immensely unpopular with the electorate at large? Because the incumbent majorities perceive that doing so will be popular with the relatiely small majorities of their voting constituents, and they calculate that those people will continue to be in the majority in 2018 or 2020, and after that those people won’t remember what happened with healthcare. Their calculations are cynical, and have nothing to do with the actual best interests of their constituencies, but may well be correct nevertheless. In other words, it is the product of a redefinition of that group of people with whom a given idea need be popular or unpopular.

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    • In other words, it is the product of a redefinition of that group of people with whom a given idea need be popular or unpopular.

      The scariest part of this is the number of states and districts where the federal offices are decided by whether there is an (R) or a (D) behind the candidates’ names, regardless of the issues of the day. The difference between the (D) wave in Congress in 2006 and the (R) wave in 2014 amounted to about 5% of voters nationwide changing sides.

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      • Even scarier, that’s an even smaller percentage of the voting age population, so we’re really taking 2-3%.

        I do wonder where we go from here, because this path seems pretty clearly unsustainable. Norms are being shattered daily, we have affirmative evidence that Trump (at least tried to) collude with Russia to win an election, and everyone will probably still vote party line. Same thing with the health care unraveling described here. It has support below the crazification factor. It’s affirmatively awful policy at achieving any of the stated goals of its proponents. But I bet the d*mn thing passes once McCain heals enough to express heartfelt concern before voting for it.

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    • How would I decide Brown on “originalist” grounds? I’d write a concurring opinion. I’d state Slaughterhouses were wrongly decided. I’d use the substantive norm in the P or I Clause. I’d ignore ALL of the social science and I’d quote from Plessy’s dissent.

      Privately, however, I might understand that I was “picking” an originalist approach to suit the outcome because if I wanted to come out the other way I could observe that the way the 14th was meant to be understood, courts arguably weren’t meant to have jurisdiction over what those P or Is were. That’s Congress’ job and I won’t do their job for them.

      Elsewhere I’ve written about the tension inherent in “liberal democracy.” The “democracy” part means majority rule and legislatures are the most democratic of the 3 branches of government (though they still have a bit of “republicanism” inherent in them where the legislature isn’t always doing the “will of the people”). Small l “liberal” means rights antecedent to majority rule. I don’t trust democracies. I don’t necessarily trust courts either. But if they are frustrating a majority’s power to impinge on an individual or minority group’s rights, I see that as a positive aspect of their role and so wouldn’t be inclined to look for technicalities like “sorry, Congress never defined the right to attend an integrated school as a ‘P or I,’ so you are out of luck.”

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  4. Let me deal with your 2nd point which I don’t think is a contradiction. It’s possible to get rid of racial distinctions enshrined in the law of the Jim Crow type through the P or I Clause. But let’s assume the originalist account I wrote above is correct and Congress doesn’t act and those distinctions remain.

    What exactly is it that the Due Process and Equal Protection Clauses forbid (while still permitting race based Jim Crow like distinctions in the law)? Consider this scenario: Some privately owned business want to have blacks at the lunch counter. Maybe the business itself has black/white management. So they try to adopt that policy only to have their place vandalized and be subject to threats of physical violence, or perhaps actually beat up.

    What do you do? You call the police. If they do their job right the perps would be arrested and prosecuted. Victims could use tort law to sue. They’d be subject to all of the same set of rules in court.

    But here in Jim Crow where otherwise fair government actors dealing with a different scenario might have done their job properly, they wouldn’t give redress. The cops, judges and juries may have been klan members themselves.

    This is what the EPC and DPC were meant to tackle and it would be in effect even if no substantive right to be free from racial discrimination from government in general were recognized.

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    • I’m not sure I follow you. Are you saying that a Supreme Court armed with a P&I clause would have more success at dealing with discrimination in the use of discretionary judgment by members of the criminal justice system that our Supreme Court has had using the equal protection clause? If so, why?

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      • From the perspective of an originalist, you want to do the right thing and interpret the clauses the way they were meant. What I observe is that the Court has a lot of the wrong clauses doing the otherwise right thing.

        Incorporation shouldn’t be done through the Due Process Clause but the Privileges or Immunities Clause.

        I’m not sure it would make a difference if SCOTUS held that the P or I Clause grants a substantive right to be free from racial discrimination by government. Brown & Loving would be rightly decided either way.

        The problem though is arguably, from the perspective or “originalism” Brown & Loving were wrong in that they usurped Congress’ responsibility over the substantive rights of P or I.

        The point I was making was even if Brown & Loving were wrong because of Congress’ inaction, the EPC and DPC would still do something in the way in which the executive and judicial branches would have to evenly apply existing procedural rules.

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        • I think that the original argument is something like “if you don’t like what the Constitution says, then amend it. There’s a process for that and everything.”

          That argument probably made a lot more sense when there were 13 states.

          The whole “well, we’ll just make the phrases ‘public use’ and ‘public good’ co-extensive” thing leads to some weird places like Kelo.

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          • Right. The framers were obviously not intending to create a government intended to manage the most powerful nation in the world two hundred-plus years into to future. Nor should they have been, they were a scrappy colony with a ton of internal strife that had just barely beaten off the limited power that GB was able to project at that moment in history.

            They had no idea their systems would manage 250 million people in fifty states (with MASSIVE size disparities).* They just knew that there needed to be more government than the Articles of Confederacy provided for, as 13 individual states would be swiftly reabsorbed by GB. So they put their heads together and crafted the outline of a system that everyone could agree to, and that was good enough. And it was really really good. So good that I don’t think any other system of government has ever survived such a radical expansion in size and power as well. But that doesn’t mean it was perfect, and doesn’t mean it will continue to survive if we don’t protect and revise it. Which has happened periodically by amendment, constantly by legislation, and in some key ways by judicial interpretation. Since amendment is now effectively impossible, and the prospects for short term major legislation are dim (absent increasingly-tortured definitions of “reconciliation”), the courts are the only escape valve left.

            *At the time, the biggest state was Virginia, with 747,610 people, including 292,627 slaves, for a “population” of 630,559. The smallest was Delaware, with 59,094 people, including 8,887 slaves, for a “population” of 55,539. That difference was 11.4x. In the 2010 census, we have California with 37,253,956 vs. Wyoming with 563,626, a difference of 66x.

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    • But the situation in which a mixed-managed business wants to serve a mixed clientele and is obstructed through private violence is not terribly likely until after the ground-up social/political phenomenon that in our timeline became the Civil Rights Movement of the 1950s-1960s.

      The far more likely situation would be one in which a white-managed business wants to serve a whites-only clientele, and blacks are ass out because freedom of contract. That situation enjoys substantial cultural stasis for a long time until you get a social/political movement. Since this scenario leaves it to Congressional initiative, and is less susceptible to judicial action, it seems less likely to me that some cognate to the civil rights movement could blossom and achieve substantial success.

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      • I’m no expert on the history of civil rights and race, but it’s my understanding that from the end of the Civil War till the Civil Rights movement in the 60s, the private violence with state and local government’s refusal to do anything about it provided it was used to enforce the Jim Crow color line was a persistent dynamic until the Civil Rights movement crushed Jim Crows.

        Yes, there were other things too like government race based legal distinctions and private discrimination.

        The ultra libertarian and laissez faire position is to the extent that Jim Crow was a “government program” and government’s refusal to equally protect people under existing rules that prohibit private violence is indeed government action should be outlawed and the 14th Amendment gives the federal government the constitutional power to do this.

        Entirely private discrimination should be permitted. It’s a dead position. I’m not interested in defending it; though I do want to understand it accurately.

        Richard Epstein’s position is if the privately owned entity is a monopoly or common carrier, government should outlaw the discrimination. But if it’s not the discrimination should be permitted and a market oriented system provides its own redress. Take your business somewhere else. Or set your own business up. Turning customers away in general isn’t good for business.

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        • Yes, but markets don’t cure all ails, so this is nonsense:

          discrimination should be permitted and a market oriented system provides its own redress

          Not only is it wrong as a matter of human rights (and economics), it’s explicitly contrary to our founding principles. Which makes it a particularly… strange… hill on which to plant the banner of “originalism”

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          • Nevermoor it may be wrong as a matter of human rights and it’s questionable whether it’s contrary to America’s Founding principles, but it is not or at least not proven to be wrong as a matter of economics. See Gary Becker on discrimination.

            There are plenty of hated minority groups who have, prior to the civil rights revolution fled to their own “safe spaces” that markets permit, set their own businesses up and flourished. Jews, Asians and gays come to mind.

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            • I’m not sure what it proves that minorities can (sometimes) create market niches for themselves that flourish. When we systematically and legally discriminated against black people following reconstruction, the effect was extreme damage to that population, and extreme benefit to whites and white businesses.

              It certainly doesn’t show that, if we allowed formal private discrimination by race today, Hobby Lobby would be worse off by adopting a rule that it wouldn’t hire black employees.

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              • But here’s what can be proven: If Hobby Lobby turns away the most qualified candidate for the job who happens to be black and simply because the person is black and HL’s competitor hires the person instead, Hobby Lobby is indeed “hurt” by this irrational decision and the competitor is in a better position.

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                    • Well, it would be if “gravity” were as poor a predictor of actual observable facts as the idea that all humans uniformly make rational economic choices, and we can therefore build large-scale models on that microfoundation.

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                      • Human decisions are always rational and utility-maximizing at the moment of decision, with the information available.

                        That they are not the decision you wanted them to make, the decisions you consider to be utility-maximizing in the long term, does not mean they didn’t make sense at the time.

                        Also, let’s keep in mind that you’re proposing a gigantic population of closet racists who are just desperate for the chance to shop at no-blacks-allowed stores–a population so large, so fervid in its racism, that it’s worth it for retailers to cater to it–and, according to you, we’re the ones insisting on irrational fantasy worlds to justify our attitudes.

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              • “I’m not sure what it proves that minorities can (sometimes) create market niches for themselves that flourish.”

                I think it proves the point I made about markets having a self correcting mechanism by giving victims of marginalization options to enfranchise themselves.

                The problem, as I see it is when government and its monopoly on force does the discriminating. Not private, peaceful self interested business folks. As I noted above, to the extent that they do engage in irrational discrimination it hurts them.

                “When we systematically and legally discriminated against black people following reconstruction, the effect was extreme damage to that population, and extreme benefit to whites and white businesses.”

                I don’t doubt that blacks as a group were greatly harmed by both slavery and government enforced Jim Crow. However, I am extremely dubious of the proposition that the discrimination against blacks following reconstruction “extreme[ly] benefited” whites. Discrimination as noted is an irrational activity. It hurts the discriminator to turn away the most qualified candidate.

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                • You can keep repeating the claim, but I don’t see it.

                  Woolworths spent a lot of years benefiting from its no-blacks-at-the-lunch-counter policy, for example. And those who exploited black labor, rented houses at exorbitant rates because black people couldn’t get mortgages, or otherwise exploited their legal race-based privileges absolutely benefited.

                  More fundamentally, it seems entirely possible that the marginal utility between two employees is entirely subsumed by the market benefit you might obtain by signalling (which is why I chose Hobby Lobby as an example–it clearly understands the value of cultural signalling though, of course, I have no reason to believe it specifically would adopt this signal if allowed by law).

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                  • Can you explain to me how exactly it is a “benefit” to Woolworth’s in some kind of economic utility sense to have preserved their system of discrimination.

                    My understanding is we are dealing with different values than just economics and utility. Though, that value is important. Money isn’t everything. But to many folks it’s arguably second to air.

                    So for instance, the cake lady who doesn’t want to bake cakes for same sex couples. How is she benefiting from this move? Economically, she isn’t. She’s losing business.

                    Whatever of “benefit” she is getting from not baking that cake, it’s something else that’s not economic utility.

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                    • In a town with more racists than minorities, its entirely plausible that the sound business strategy would be to play to the racists.

                      Same thing if some, or a good percentage, or your employees were racists.

                      Thriving businesses turn away customers all the time. Go to South Beach or Vegas and see how poorly the clubs hat discriminate against the not-so-cool do.

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                      • Well Epstein’s point is that if a privately owned business is a monopoly or common carrier it should be subject to antidiscrimination principles. But when there’s a competitive market, it’s not needed.

                        Free market libertarian types don’t want to live in a world where people can’t get what they need.

                        To the extent that anti-discrimination laws that constrain private markets are laudible it’s not for economic reasons, but rather relate to other values.

                        You have to ask yourself what kind of business we are dealing with. The kind to which you refer are the ultra hot nightclubs like Studio 54. And if they are that elite they can stop holding their doors open to the public and be “private clubs” which aren’t subject to antidiscrimination laws at least as it relates to membership (with employment there, yes they are).

                        On the other hand restaurants are some of the most competitive businesses out there. They often fail because of this and make razor thin profits. For them to turn away willing paying customers is economic stupidity.

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                        • This doesn’t respond to , who gave exactly the answer I would have.

                          Saying: we don’t serve [group X] costs you whatever business you were going to get from that group. It also costs you whatever business you were going to get from group X’s friends. But it may gain you business from those who like your brave stand against group X. You can keep saying this is irrational, but I don’t see how that’s obviously true, or true in all cases.

                          Hobby Lobby is a clear counter example. They’ve gone to the supreme court to establish the primacy of their version of the christian faith, and presumably they see an economic upside in that fight that extends beyond saving a few bucks on insurance policies. It has certainly cost them some business (I’d never shop there, for example), but I bet it has earned them a lot more business from those who are political allies given its red-state geographic profile.

                          Now that you understand why discrimination can be economically efficient, the balance of your argument seems to boil down to “and that’s ok because people can self-segregate” (“he addresses how victims of such discrimination won’t be economically disenfranchised because of mechanisms inherent in free markets. However, they may well find themselves in atmospheres where there are more people like them who share the discriminated against trait.”). I didn’t expect to have to take on “separate-but-equal is ok” today, but unless I’m misreading that seems to be where we are.

                          Let’s just say that’s a claim that would require a REALLY compelling showing, and a strong policy motivation. “valuing freedom of contract” and trusting “mechanisms inherent in free markets” to avoid problems doesn’t seem particularly close to that showing. Nor does the argument about religion and law firms.

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                          • Epstein’s argument is that to the extent that discrimination via the voluntary sorting mechanism is rational — providing it’s private, consenting, adult and peaceful — it should be permitted.

                            Likewise what was so pernicious about “separate but equal” was that — well, it was a lot of things — but mainly because it was the result of government coercion not voluntary sorting.

                            By the way, I must stress, it’s not my argument. Rather it’s Epstein’s and I’m trying to be fair to it.

                            I noted above I’m not interested in defending the idea that discrimination should be allowed in private markets. It’s not. It’s a dead position.

                            But no, I don’t believe that self interested, peaceful consensual actors in private firms have the ability in markets to economically disenfranchise various social groups, for reasons like why various groups — like Jews, Japanese, homosexuals — all of whom have been subject to terrible animus have been able to outperform dominant majorities who have subject them to their bigotry.

                            The result though is that those, say homosexuals, who are marginalized, in order to do well and outperform the majority may have to move out of the small town from where they were raised to gay ghetto in the city.

                            That they don’t have as much opportunity in that town and have to move into the city is an act of marginalization, I would concede. But it still doesn’t prevent the person from moving into the city and then flourishing economically and making more $ and accumulating more wealth.

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                            • Jon Rowe:
                              The result though is that those, say homosexuals, who are marginalized, in order to do well and outperform the majority may have to move out of the small town from where they were raised to gay ghetto in the city.

                              That they don’t have as much opportunity in that town and have to move into the city is an act of marginalization, I would concede. But it still doesn’t prevent the person from moving into the city and then flourishing economically and making more $ and accumulating more wealth.

                              If there are better opportunities in the city, then gay people that aren’t being discriminated against can still pursue those opportunities in the city, much like how some of their straight friends and family and neighbors will leave town to do so. This argument sounds to me like a declaration that oppression isn’t bad so long as government isn’t doing it, which is pretty much my beef with libertarianism in a nutshell.

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                              • I wouldn’t necessarily say that the oppression “isn’t bad” or even “not so bad,” but rather “not as bad” and “categorically different” than from when government does it.

                                Further, I am very suspicious of well intentioned government efforts to eradicate things that occur within peaceful, consensual private markets. Though I’m non-ideological. I’ve made my peace with antidiscrimination laws that constrain the private sector, even as I think that those government based distinctions are way worse.

                                For example, I don’t doubt that if someone — who had a certain degree of talent — in a comfortable position who was gay in a fairly socially conservative setting and lost their job solely because they were gay, that such person probably would be able to weather the storm, find a new job, get their life back together and otherwise make a living and build wealth on paper such that the outcome would be a “happy” one.

                                However, losing a job that you are comfortable with — whether it’s a government job or one in the private sector — throws a terrible monkey wrench into one’s life, however well groups of people may be able to deal with it.

                                I’m not going to write at length defending the monkey wrench throwers even though I understand in this imperfect world and life, you have to deal with those damned wrenches.

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                                • The people who argue that private discrimination is not as bad or is categorically different from government discrimination seem to come from social groups that have a very low chance of being on the receiving end of private discrimination. Epstein might be different based on his last name but most seem to have no risk of ever encountering private discrimination.

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                                  • Epstein. Also Thomas Sowell. Following Gary Becker’s work. I think one key point they make is that government has a monopoly. There is one federal govt. One state govern. One municipal govt. In competitive markets the fact that you can go to the next firm for relief or start your own firm is key to why it’s different.

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                                    • This ignores that society in aggregate can pressure businesses to act in a certain way through informal means. That makes going to the next firm for relief or starting your own firm harder. Most people can’t start their own business without a loan and if the banks refuse to give loans to certain groups of people than they are going to be out of luck.

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                                      • Historically, the proprietor of Ollie’s Barbeque claimed that he wanted a whites-only business as a profit-maximization strategy, not out of any animus towards black people. “Black people have less money to spend than whites, and whites won’t patronize a place that serves blacks, so that’s why I only serve whites.” Under ideal circumstances, the viability of that strategy could be put to the test, but in real life, Ollie’s Barbeque has other factors that come into play: geographic exclusivity (the town can only support one Barbeque place in the first place), or competitive advantages in other arenas (quality of product, access to less expensive raw materials, longevity).

                                        This sidesteps the fact that Ollie’s argument simply bootstraps on the irrational prejudices of other people and that creates a feedback loop that makes it very difficult to initiate and sustain the sort of ground-up social change Epstein says should be the only way private businesses are impelled to adopt beneficial (or at least preferred) social policies.

                                        Consumer preferences and political preferences sometimes diverge. Moreover, marketplace results likely reflect a complex array of factors, the bulk of which are not weighed in any conscious manner by individual consumers, and some of which may well swamp political considerations.

                                        Thus, marketplace behavior alone does not define the kind of society we want to live in. So society impels the government to impose inefficient policies on private businesses, precisely because unmolested marketplace results sometimes land in places where the social consequences cumulate to an undesirable result.

                                        In other words, aggregated consumers in the marketplace are not the same thing as the aggregated electorate, even if the populations of those two groups substantially overlap. When cast in the role of the electorate, people behave differently and prioritize things differently than when they are cast in the role of consumers. As consumers, they like Ollie’s Barbeque because it tastes really good, is the only Barbeque restaurant in town, and is affordable. As voters, they (maybe) deplore Ollie’s whites-only policy. Someone has to mediate these competing pressures.

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                                        • If the people object to Ollie’s white-only policy, they should write “I object to your whites-only policy” on a piece of paper, tie it to a brick, and throw it through Ollie’s window. The city’s window repairmen will thrive, boosting the city’s economy, and eventually Ollie will get tired of replacing the windows and let black people such as himself eat at his restaurant.

                                          Interestingly, in the aftermath of the Civil Rights Act, we realized that most Southern businesses wanted to serve blacks but they were afraid of the white backlash if they were the only business to do so. They were all afraid to break a social taboo, and the law, even though they would benefit from the extra business.

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                                          • “We’ll build a more racially sensitive restaurant brick by brick!”

                                            Incidentally, what’s the source for the statement that most Southern businesses wanted to serve blacks? Not saying it’s not accurate, just wondering how that could really be known.

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                                            • I suppose lots of Southern business owners commented about it later, and that the evidence is post Civil Rights Act hiring practices. Lots of white businesses wanted to hire blacks because they were hard workers and would work for less pay, but those businesses were afraid of a backlash if local whites viewed such hiring as an affront to the social pecking order. Now sure, some businesses dragged their heels on hiring blacks, but a lot of them jumped on it as an long-wished for opportunity.

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                                • The government didn’t MANDATE sharecropping in the Jim Crow era, just acknowledged that the “contracts” were legal and thus enforced them. You’re anticipating a world where a company can fire someone for being a member of an unwanted group (say, outed as a jew). It seems to me you’d expect the government not to require a company to fire that person, but to enforce the employment contract with the “no jews allowed” provision.

                                  I’m struggling to see the distinction between the two scenarios (just as I’m struggling to see why the fired employee hasn’t been harmed, or why that harm is ok).

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                                • I wouldn’t necessarily say that the oppression “isn’t bad” or even “not so bad,” but rather “not as bad” and “categorically different” than from when government does it.

                                  This is absolutely true. And to the extent people disagree with you, they should put their first-amendment hats on. My company can fire me if I tweet out something horrible, my government cannot jail me for it.

                                  In the discrimination context, though, you’re doing too much work to exclude government involvement. If private discrimination were allowed, there would be sit-ins (or the like). I bet those private companies would suddenly want government to engage in oppressive conduct. If it does, your distinction vanishes. If it does not, there’s effectively no private right to discriminate absent vigilantism.

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                            • What’s the countervailing benefit that we’re obtaining by allowing–let’s assume–only small towns to collectively decide no black people are allowed?

                              Because it’s clear to me you see the issue. It’s not at all clear to me what interest outweighs that issue.

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                              • The theory that Epstein proposes is that governments are different, that they have to treat citizens equally without regard to race, and that goes for small towns too. There may be benefits to a small town by being able to do such; but it’s still something we don’t permit.

                                Though Epstein would permit corporations and privately own communal entities — like Condo Associations — to get those benefits you might be referring to via contract and property rights.

                                In a libertarian anarchist utopia, there would still be decentralized, voluntary communities who use can enforce contract and property rights. That mean they would be able to set up rules like “no gays” or “no blacks” welcomed here. OR if you do X, we will exclude you. If X is murder, they wouldn’t be able to punish like government. But they would be able to exclude and forbid from return. And if the person tried to return, they could use potentially deadly force to prevent that.

                                If a corporation or voluntary community like a condo association gets big enough, it starts to look a lot like a town. Indeed if we didn’t have anymore government — these associations would by means of contract and property rights, have to assume more of the role that governments currently do.

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                                  • It’s an interesting theoretical question. I might sympathize with libertarian utopia and Murray Rothbard’s perfect world. But unless some catastrophe happens in the world that causes the system to collapse, it’s not the world in which we live.

                                    [We may be able to live in such libertarian utopia shortly, however, in the sea or in space.]

                                    I told you before I’m not interested in defending a world where we have Title VII apply to government entities only.

                                    But neither — as I see it — is the world in which we live one where the whole small town is so racist or bigoted against group X that all of the businesses would make coordinated decisions against group X. Unless of course group X is something like sex offenders of the pedophile nature.

                                    When you challenged me on the point where for business to discriminate it might be a useful practice because catering to bigotry might outweigh cost of losing the business of the discriminated against group a google search revealed that James K had already addressed these issues in this post from 2013.

                                    http://ordinary-gentlemen.com/2013/08/31/do-markets-reward-racism-it-isnt-a-black-and-white-issue/

                                    “Prejudice is near-universal and socially sanctioned. Markets will actively reinforce discrimination in this situation.”

                                    If that’s the case in town, I do understand the notion that we will never permit government entities to discriminate (simply for ethical reasons relating to the nature of what government is permitted to do), but I do seriously wonder how much “good” you will do for any of the groups involved for government to try and do much more to make the groups get along and live together when voluntarily they might be happier living apart.

                                    The Civil War in America was pretty horrific. And in the 20th and 21st Cen. you have had genocidal tribal fighting (though not in America).

                                    There is a way to “force” people to who otherwise hate eachother simply because they are from the “wrong group” to get along and it’s by using the tactics that Saddam Hussein and the Soviet Union did.

                                    Thankfully, the lamentable animuses and tensions that we might have between and among social groups in America is no where near as bad as for instance, what happened in the post-Soviet Union balkans.

                                    It’s not even as bad as what was quoted above by James K where he noted the circumstances where markets reward bigotry.

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                                • Enforcing anti-discrimination ordinances is perfectly consistent with the government treating people equally with respect to race (unless you think the 14th amendment should be applied very expansively to disparate impact discrimination, in which case we have far bigger fish to fry). What it conflicts with is a liberty interest, not an equality interest, and it’s not a liberty interest that I would consider worth worrying about that much.

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                              • BTW, a few years ago I discussed this dynamic with socially conservative Roman Catholic Francis Beckwith who taught with and was friends with the Jewish-Atheist libertarian anarchist Murray Rothbard.

                                I’m not sure how “Ave Maria Town” in Florida is working out. But they do attempt to by virtue of contract and property rights institute a traditional Roman Catholic voluntary association — a “town” even if it’s not officially a government entity.

                                But they are still subject to state and local laws that might prevent them from fully implementing their vision. In Murray Rothbard’s perfect world, they would be able to do so. Murray wouldn’t be interested in living there. So he would just live somewhere else. If you don’t like it move out into a community which sets rules that you are more comfortable with.

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                                • Jon,
                                  This assumes, quite without reason, that one can determine the rules of living in a place.
                                  I can assure you that the techniques currently used to discriminate against people based on their race are quite difficult to flag.

                                  What do you do when you hold a moral opposition to living in a racist place, but it’s impossible (or impractical) to tell?

                                  Practical philosophy — when the rubber hits the road. Or, as the businessmen like to say, Profit!

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                                • This assumes that moving out will be made a say. It turns out that bigots don’t like having the groups they hate too close but want them close enough to exploit and persecute.

                                  Libertarians get annoyed when socialists always assume ideal implementation . I get annoyed at ideal libertarianism.

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                          • “Saying: we don’t serve [group X] costs you whatever business you were going to get from that group. It also costs you whatever business you were going to get from group X’s friends. But it may gain you business from those who like your brave stand against group X. ”

                            Jim Crow laws were put in place to stop businesses integrating, so it would appear that Woolworth’s didn’t consider that worth chasing. If there was a social-approval benefit of the type you describe, it was a benefit they didn’t want (when compared to the actual benefit of having people come into the store, which is, y’know, the whole point of a store.)

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                            • Jim Crow laws were put in place to stop businesses integrating

                              Citation? Another view would be they were put in place to provide legal cover for segregated businesses in a society attempting to preserve as much of the slavery-based inequality as possible following the failure of reconstruction. Or was there a spate of corporate civil disobedience with segregation that required government crack downs?

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                      • This is a difficult question though Epstein deals with. Let me from memory paraphase his answer.

                        His book that argues against anti-discrimination laws that apply to the private sector has two underpinnings. One: He doesn’t think they are justified on economic utilitarian grounds: Rawlsian, Pareto, Kaldor Hicks. He presents data that demonstrates markets do provide mechanisms for blacks and other groups to protect their economic interests.

                        To the extent there are other values involved, Epstein values things like freedom of contract and economic liberty, not necessarily the dignitary sleights that occur when one is discriminated against (even though that person, so insulted can take cover and get what they need).

                        Epstein addresses a left-liberal law professor who accepts the premises/arguments put forth by Becker et al. that discrimination is economically irrational and harms the person who so discriminates. But sees antidiscrimination laws as helpful here because they help firms do what otherwise is in their self interest to do.

                        But Epstein argues that if a self interested business person — like a Woolworth that has a town filled with racists — uncoerced by government finds it within their best interest to segregate, they should be permitted to do so provided they aren’t monopolies or common carriers. And then he addresses how victims of such discrimination won’t be economically disenfranchised because of mechanisms inherent in free markets.

                        However, they may well find themselves in atmospheres where there are more people like them who share the discriminated against trait.

                        Voluntary sorting. Which some folks don’t like because of the “de facto” segregated results.

                        Thomas Sowell has written about this as well. And it’s not just a black or white thing.

                        There was a great deal of anti-Semitism in this country. There still is to some extent. Jews indeed were shut out of certain places in the private sector, via the voluntary sorting mechanism. One of them was lawfirms. So the Jews started their own firms and outcompeted gentile firms with anti-Semetic prejudices. Eventually they became some of the most prestigious firms where newly minted gentile attorneys competed to be hired.

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                        • The Jews being shut out of law firms is an interesting example because it exposes some of the limitations of using market mechanisms to get around discrimination. A lot of the regulations governing the business aspect of the legal profession were implemented to make it harder for Jews to compete with Anglo-Saxon lawyers. It took court decisions to change this.

                          So powerful racist business people and professionals are capable of teaming up against minority business people. Private law schools and medical schools also limited the number of Jewish students admitted.

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                        • Jon,
                          And talking about jewish lawyers is probably not where you wanted to be headed, as that’s an Old Boys Club like you wouldn’t believe. **

                          **At least, in the places that actively advertise “You’re Hiring a Jew! Sure to Win! ”

                          And old boys clubs are pretty bad news for people who think Free Markets Fix Everything.

                          I will cite the Old Boys Club of the CEOs and their Boards of Directors, if you need numerical data on why Old Boys Clubs are evilz.

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            • I can’t speak to Epstein’s arguments or other arguments about what can or can’t be done in the market.

              However, I do suggest that banning discrimination by businesses was not entirely alien to the founders’ assumptions about governmental powers. I understand that at least in some New England states or colonies (and I presume in most of the other states/colonies) there were regulations regarding whom innkeepers were required do business with. And while those regulations probably weren’t imposed with anything like our present-day understanding of non-discrimination, it was a governmental interference in the choices of a business owner.

              I admit that understanding did not extend to the proper powers of the federal government ca. 1789, and perhaps not even ca. 1868 (although didn’t one of the Reconstruction laws forbid private discrimination?). But I don’t see it as much of a stretch against even (some forms of) originalist principles to state that regulation of, say, interstate commerce can at the very least require private businesses to accommodate all comers who are in the stream of interstate commerce. Maybe that doesn’t stretch to modern-day civil rights rules as we know them, but it’s not quite as alien to them either.

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              • I seem to remember from Epstein that the “innkeepers” thing from the common law fell under the rubric of “common carriers.” That is private firms with monopolies or who are “common carriers” could be subject to antidiscrimination principles under his first best world.

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                • Thanks for the response. I hedged a little in my comment because I don’t know much about the relevant regulations.

                  I also had/have in the back of my mind this post from Bleeding Heart Libertarians:

                  Could the conception of “implied contract” that Mike Munger outlines there be an opening for at least some private anti-discrimination laws?

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        • I want to take this in a different direction here, in noting that, to the Framers’ understanding, the Constitution permitting lynching, though they could never have foreseen that it would have evolved to a predominantly race-based activity.

          Lynching, and similar extrajudicial acts, were well-entrenched devices to the Europeans of the time; e.g., tarring and feathering, riding out of town on a rail, etc.

          I propose the Framers intended to maintain these activities as a means of public control of governmental officials, and employees, to effect required change mid-term, or in absence of a vote.
          Thus, an IRS auditor would be prime for a lynching.
          This mechanism could have prevented the farce which was the Merrick Garland fiasco, as well as other Congressional gridlock.

          The states currently retain a vast overabundance of power, due to the lack of this means of clearing out the state capitol; where the Framers fully intended for mobs to descend on state legislators, their judiciaries, and the various agencies of the executives, on a periodic basis, much like flushing the toilet.

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  5. Meh, the left has done their best and succeeded in applying the 14th in places it was never meant to. We are still dealing with the fallout.

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  6. Interesting post…

    Honestly, what passes off as an originalism debate is nothing more than the sides of the debate attempting to use what scant evidence they can find to reconcile their version of the Living Constitution to their political worldview. Libertarians are just as guilty if not moreso.

    It was pretty much clear from the decision in the Slaughterhouse Cases, then Munn v Illiinois, then Plessy then the overwhelming majority of 14th Amendment cases that challenged economic regulation on 14th Amendment grounds yet upheld that the Court’s interest in upholding substantive rights protections through the 14th Amendment wasn’t there. Even when there were cases where laws were struck down (Lochner, Meyer, Pierce), I wouldn’t call these “pro-liberty” cases but rather cases where the laws lacked justification.

    This is where I have a problem with Randy Barnett’s “Presumption Of Liberty”. Looking outside of the most notable 14th Amendment cases pre-New Deal and pre-Warren Court, the court was more likely than not to apply a presumption of constitutionality. Lochner v New York is not some of kind of libertarian wet dream of a case.

    The whole enterprise there is weird anyway. Am i supposed to believe a constitutional theory that argues that originalism requires that the Executive and Legislative branches respect their constitutionally limited boundaries but assume the Judicial Branch a very wide berth into the affairs of the states? It’s the exact opposite of the case law.

    To their credit, liberals, when they’re not stupid enough to try to tie out their worldview to the original Constitution (don’t try…seriously…no Jack Balkin…nooooooo…..), they’re at least somewhat consistent.

    The Heller decision, as much as I think was correct, told me everything I need to know about the modern originalism debate and the joke that it is. Leave it up to lawyers to f–k up interesting history. ;)

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    • What is originalism other than an excuse to ignore precedent and make stuff up? It’s the third leg of the “refuse to confirm D appointments” and “appoint 12-year-olds to lifetime judgeships” judicial coup stool. And when I say stool, I mean stool.

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      • Made up? The original meaning of the Second Amendment can be traced directly back to a mountain of 18th Century evidence clearly indicating that private rights to bear arms dominated the discussions at the state ratification debates.

        They all conclusively agreed that because they had a deep distrust of centralized government, to keep that centralized government in check, they would enshrine a constitutional right in that same government that they distrusted, a right that would be judicially enforced by a national judicial branch that they distrusted. Thank goodness the colonists had a constitutional right to bear arms in 1776. What would they have done?

        State level militias? Nah, with the militia power becoming an enumerated power, one that was not delegated to the federal government under the Articles of Confederation, and enumerated powers understood to be plenary in the new federal government, the states could send out the bat signal every time states felt the need to manage their own defense affairs when shit hit the fan. Why would mostly sovereign states have a need to have sovereign authority over a militia to tend to defense matters internally?

        I’d love to shit all over conservatives for this, but libertarian legal theory is largely responsible for this mess…and under the guise of originalism too. They can own it. I guess that means me too.

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        • When Obama was granting all kinds of special privileges to illegal aliens, I was tempted to stir up some dissent based on the fact that the states retain the sole power to create denizens, which is what Obama’s quasi-amnesties were doing in fact, creating a special status of people that are more than aliens but less than citizens.

          In England the power to create denizens was the king’s alone, while Parliament had the power over naturalization. Due to a long chain of history, over here the colonies used their power to create denizens (Parliament threw a fit when the colonies were creating naturalized British subjects), continued to grant denization under the Articles of Confederation, and didn’t surrender that power to the federal government in the Constitution. Thus they retain it.

          States have never bothered using the power because our goal was to create new citizens, not state denizens who are taxed and allowed some property rights, but not allowed to vote or hold office, and whose special status isn’t recognized by other states.

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