THE DIFFERENCE NARROWS: A REPLY TO KURT LASH.

• Author: Lash, Kurt T.

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash's reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain.

So, in this reply--with a few exceptions--we will avoid piling up any new evidence and will instead offer succinct counterpoints to his points. Above all, we wish to stress the narrowness of our disagreement--narrowness that is easily obscured by the presentation of one source after another. As we did in our original article, we start with our points of agreement--which Lash repeatedly characterizes as "concessions." (1)

1. WHERE WE AGREE

   1. The Accuracy of Our Summary of Lash's Thesis

      We are pleased that, for all his many disagreements with our position, Lash does not dispute the accuracy of our twenty-two-page summary of his thesis. Summarizing his approach was no mean feat. It required weeks of poring over his various articles and blog posts, along with his book. To the end of getting his views right, we shared an early draft of our paper with him to offer him a chance to correct us. He did not offer any corrections then and does not take issue with our account of his views now. So, readers can read our opening summary with confidence it accurately reflects all the twists and turns of Lash's arguments--including their evolution over time.

      It was during this inquiry that we discovered that Lash has on several occasions fundamentally changed his positions on key issues. In our critique, we focused on one issue in particular: how Section 1 of the Fourteenth Amendment constitutionalized the fundamental rights identified in the Civil Rights Act of 1866. Lash has at one time or another claimed that each of the four working parts of Section 1 constitutionalized the 1866 Act. (2) His present position is that the Act was constitutionalized by the Due Process of Law Clause (or perhaps a combination of the Due Process of Law Clause and Equal Protection of the Laws Clause). (3)

      In our critique, we did not fault Lash for changing his views. To the contrary, we have changed our views over time on some important issues; (4) we commend Lash for continually seeking to get things right; and we applaud him for having the intellectual humility to acknowledge what he now believes to have been interpretive errors (even where we think he was closer to the mark the first time).

      If there is anything to fault in Lash's presentation of his revised views, it was in his omission to inform readers that those views were in fact revised and to explain his reasons for those revisions. At a minimum, it would have made it much easier for us to understand his actual claims. Instead, each new view is presented as though it is consistent with all that went before. We are happy to have dispelled some of the resultant confusion.

      We might also fault Lash for his failure to correct his previous dismissal of the suggestion made by one of us that the Due Process of Law Clause is not merely a "procedural" guarantee but constrains the content or "substance" of legislation. In reply to a piece by Lash in which he caustically criticized a book by journalist Damon Root, (5) Evan Bernick wrote:

      The notion that the Due Process of Law Clause protected natural rights became a thesis that was asserted in the platforms of anti-slavery parties throughout the antebellum period. Due process of law clauses in state constitutions had been interpreted to provide natural law protections for property rights before the Civil War and the Supreme Court had interpreted states' law of the land provisions to protect substantive rights.... Thus, there is reason to believe that, contra Lash, both the Privileges or Immunities and the Due Process of Law Clauses are properly understood to protect unenumerated rights. (6) To this, Lash responded: But what about the Due Process Clause? Even if libertarians are wrong about the Privileges or Immunities Clause, perhaps the Supreme Court was right to develop the doctrine of substantive due process. This is the proposition of Evan Bernick, whose recent essay at the Huffington Post also takes issue with my review of Root's book. My review did not address the Due Process Clause because not even Damon Root had the courage to try and resuscitate this broadly mocked doctrine. That Mr. Bernick now tries to do so provides a telling illustration of the failure of libertarian constitutionalism. Perhaps now, in the face of overwhelming evidence that the Privileges or Immunities Clause does not say what they want it to say, libertarians will embrace their inner Emily Litella, say "never mind," and quietly return to Substantive Due Process. (7) This was way back in 2015, when Lash was still confident in his opinion that it was the Equal Protection of the Laws Clause that protected the unenumerated economic liberties of the Civil Rights Act of 1866. (8) He offered this opinion just a year after publishing his book, in which he contended that it was the Citizenship Clause that protected economic liberties. (9)

      We have since presented our theory of the Due Process of Law at length. (10) In our William and Mary Law Review article, we do not embrace the modern "substantive due process" doctrine that privileges certain rights identified by judges as "fundamental"--who then apply heightened scrutiny--while leaving all other liberties protected by "conceivable-basis review." (11) But we do claim that the Clause protects unenumerated rights, such as those specified in the Civil Rights Act of 1866. We are pleased to see that Lash now joins us in doing so--albeit in a manner he has yet to specify.

   2. The Due Process of Law Clause Protects the Natural Rights of Persons

      Kurt Lash and we now agree that the Due Process of Law Clause protects the unenumerated natural rights of all people. Having presented our theory of why and how the Clause does so, we now await Lash's presentation of his own theory. In our piece, we maintained that due process of law requires a judicial assessment of whether a person who stands in jeopardy of his or her life, liberty, or property is actually guilty of violating the statute--so-called "procedural due process." (12) It also requires a judicial assessment of the "substance" of a statute to determine whether the statute was within the power of the legislature to enact. (13)

      The Due Process of Law Clauses forbid the deprivation of a person's life, liberty, or property except through a valid "law." This proposition ought to be less controversial than it is. Consider what takes place when acts of Congress are found not to be necessary to carry into effect any proper enumerated power, or when statutes violate an enumerated right, such as the freedom of speech. In such cases, the "due process of law" requires a judicial forum in which such challenges can be heard and prohibits such acts--for we cannot call them laws (14)--from being used to deprive people of life, liberty, or property. Likewise, legislation that is not directed at an end that is properly within the reserved police power of states is an arbitrary act and not truly a law that can be used to deprive people--including noncitizens--of life, liberty, or property. (15)

      In our article, we proposed that, to be valid, state laws actually be shown to be rationally related to a purpose that is properly within the "legislative" or police power of states. And we present a theory of the police power that is based on protecting the rights of individual members of the general public. This may sound like ordinary "rational basis review," and it is how rationality review was traditionally conceived. (16) However, it is not the conceivable basis review that courts have sometimes employed since the 1955 case of Williamson v. Lee Optical. (17)

      With this approach to the due process of law, the gap between the protection afforded by the Fourteenth Amendment to "citizens" by the Privileges or Immunities Clause, and that afforded to all "persons" by the Due Process of Law Clause narrows. We do not expect Kurt Lash to agree with our approach to implementing the Due Process of Law Clause. We anticipate he will limit the scope of judicial review to determining whether a state law is discriminatory--which we understand to be necessary but insufficient to assess whether a state law is unconstitutionally arbitrary. But hope springs eternal, and our newfound agreement about the Due Process of Law Clause is significant for at least two reasons.

      First, even if Lash disagrees with us regarding how the Due Process of Law Clause protects natural rights to life, liberty, and property, as we expect, his view that it does protect natural rights reduces the significance of our disagreement about the Privileges or Immunities Clause. At issue with the Privileges or Immunities Clause is any additional rights that citizens alone are constitutionally entitled to enjoy. (With respect to both clauses, we think civil rights--that is, the legally protected natural rights--are to be protected absolutely.)

      Second, our debate would then shift to the original meaning of the text--"the letter"--of the Due Process of Law Clauses in the Fifth and Fourteenth Amendments and how they best should be implemented consistent with their original "spirit" or function. This would be an entirely separate debate from the one in which we are engaged here. In sum, the fact that Lash now maintains that unenumerated natural rights are protected by the "enumerated" Due Process of Law Clause reduces our disagreement with respect to natural rights to one over how, not whether, these rights are protected by the Clause.

      Further...