The children’s fable “Stone Soup” tells of a vagabond who stops in a village and asks for something to eat. Hostile to strangers, the townspeople pretend to have nothing to offer. So the traveler hatches a plan: He announces that he will make a special delicacy, stone soup, and enough to feed the whole town. He borrows a pot and some water and drops in a stone. As it boils, the curious villagers gather and begin adding ingredients to improve the soup. One remembers he has a bunch of carrots, another a bag of onions. Soon the pot is boiling, and the traveler ladles out soup for everybody—after, of course, throwing away the stone.
Something like that is going on in Randy Barnett and Evan Bernick’s exciting new scholarly book, “The Original Meaning of the Fourteenth Amendment,” which offers a densely researched and profoundly important analysis of the meaning of the Constitution’s most vital liberty-protecting provision. Adopted in 1868, the amendment bars states from depriving Americans of the “privileges or immunities” of citizenship, or taking away their lives, liberty or property without due process of law, or denying them the equal protection of the laws. Yet from the very first case in which the Supreme Court interpreted the amendment—the 1873 Slaughter-House cases—federal courts have misapplied or distorted the meaning of these clauses.
Barnett and Bernick endeavor to set the record straight, drawing on an immense amount of historical scholarship and applying up-to-date legal theory. They conclude that the amendment protects a wide range of individual rights against state interference, that it forbids arbitrary or irrational restrictions of liberty, and that it requires states to affirmatively protect people against certain kinds of harms, including those inflicted by private parties.
These are not radical propositions. As the authors admit, some of them represent the already “dominant view among scholars.” Yet it’s a welcome response to less freedom-friendly theories about the amendment, particularly one advanced by constitutional scholar Kurt Lash. He’s argued that the “privileges or immunities” clause protects rights explicitly specified in the Constitution, but not “unenumerated” rights—that is, rights implied by the language and structure of the law, or implicit in principles of political philosophy.
Lash’s argument is self-contradictory, given that the Constitution explicitly refers to unenumerated rights. For instance, it protects “liberty,” which covers an infinitely long list of unspecified freedoms. The Ninth Amendment, too, guarantees rights other than those listed in the Constitution. Lash argues that these “other” rights are those explicitly protected in state constitutions—but state constitutions also explicitly protect “liberty.” Nor is there any evidence, as Barnett and Bernick note, that the 14th Amendment’s authors intended the phrase “privileges or immunities” to refer to as narrow a list of rights as Lash suggests.
More novel is this book’s argument that the “Equal Protection of the Laws” clause imposes not just an anti-discrimination rule, as today’s judges believe, but also an affirmative duty to secure individual rights through positive action. What Barnett and Bernick call “the anti-subjugation spirit” of this provision is undeniable, considering its history: Written in the wake of the Civil War, when revanchist Confederates were trying to reestablish slavery under another name, the amendment was designed to bar states from leaving former slaves at the mercy of racist terror groups such as the Ku Klux Klan. It therefore imposed a duty on state legislatures to take steps to protect these vulnerable Americans. Another section of the amendment— Section 5—gave Congress the authority to step in if states failed to do so.
If adopted by the courts, Barnett and Bernick’s conclusion that the clause “does impose a duty [on states] to protect” people would mark a drastic change from precedent, which holds that states have no such obligation and may even break specific promises to help citizens. One example is the horrendous 2005 case Town of Castle Rock v. Gonzales, in which police refused to enforce a restraining order they knew was being violated. As a result an abusive husband murdered his three children while their mother begged for protection.
The Role of Originalism
Yet as the book’s title suggests, Barnett and Bernick purport to offer not just the best interpretation of the 14th Amendment, but an explanation of its meaning in terms of originalism. This is the theory that a law means what a specific group of people—usually the average citizen—understood it to mean at the time the law was enacted. As its leading theorist, Lawrence Solum, explains, originalism consists of either of two theses: “normative” originalism, which holds that people today are obliged to follow the legal understanding shared by the Constitution’s authors, or “semantic” originalism, which holds that words simply mean what they were understood to mean by some definitive meaning-giver at a particular time.
Normative originalism is easily rejected—the fact that our predecessors believed something is insufficient to bind us. If “the past is another country,” as the saying goes, then previous generations have no more claim to our allegiance than a foreign government does. Semantic originalism is more complex: It holds that a word’s meaning is bequeathed to it by the beliefs of some authoritative person or group at the moment the word was uttered. Thus, when we interpret the law, we are asking what its authors or the public thought it meant when it was adopted.
Originalism is an effort to provide an objective interpretation of the law rather than relying on the personal opinions of judges. But laudable as that goal is, originalism fails to accomplish it. Words do not mean simply what they are thought to mean at a particular instant; they refer to actual things in the world.
The Meaning of Words
The practical consequence is that a law’s meaning cannot be settled by historical shovel work in old dictionaries and letters, illuminating as that may be, since meaning is not conferred by a particular authority. Instead, language is a device for describing reality, and discerning linguistic meaning requires comprehending those real things that the words refer to—not merely what people thought.
Not only does originalism err about the nature of language, but it also contradicts itself. As Michael S. Moore—probably the foremost scholar of legal objectivity—has observed, a speaker usually uses words with the intention of referring to actual things, not with the expectation that listeners will consult their personal experiences to define those words. The example Moore gives is the word “death”: “Most ordinary speakers intend by their use of the word ‘death’ to name a natural kind of event whose nature it is the business of science to reveal as we learn more about it,” he writes. “They do not intend that their usage of the word be guided by either standard examples conventionally assigned to that word or by conventional definitions.” So the answer to the question, “What did lawmakers mean by this word?” is simply that they meant the thing itself.
Matters become even more complicated when lawmakers use broad words such as “liberty.” In that case they virtually never have in mind some definitive list of what freedoms do and don’t qualify. And if asked what it means, they would doubtless engage in philosophical reasoning about the word’s meaning, rather than pointing to some older consensus as definitive. The quest for original meaning therefore inevitably devolves into either a search for the speaker’s subjective understanding—which is probably futile and not what the speaker expected anyway—or an examination of the reality of the things the speaker was referring to, that is, looking for the actual things being discussed.
Liberty’s Broader Protections
Notwithstanding their repeated invocations of the word “original,” the latter is the path Barnett and Bernick take. For example, they, like the Supreme Court in Lawrence v. Texas, conclude that the 14th Amendment’s protection of “liberty” includes actions the amendment’s authors would not have imagined. In that 2003 case the court protected the freedom to engage in consensual, private sexual activity with a person of the same sex.
They do this by laying aside concerns about the origin of the amendment’s language and instead arguing that understanding the “Due Process of Law” clause first requires a grasp of what it means for something to qualify as a “law.” That, in turn, “requires a conception of the limits of legislative power”—an analysis Barnett and Bernick provide without relying on any definitive historical consensus. They contend that “any purported governmental end, the scope of which cannot be objectively assessed by a citizen or independent judiciary, poses an intolerable risk of arbitrariness.” That is certainly true, and doubtless many people in 1868 believed it to be true, but it is not true because any group of people thought it was true. It’s true just because it’s true.
This is only one example of a pattern throughout “The Original Meaning of the Fourteenth Amendment.” Although studded with citations of classic legal texts and precedents, its argument is ultimately not predicated on them, and it never makes the case that the amendment’s meaning is given to it by any historical fact about its authorship. Like the stone in “Stone Soup,” any reliance on history as the source of legal truth—which is the central principle of originalism—is quietly discarded, leaving the reader with a rigorous, largely correct analysis of the 14th Amendment that stands independent of the originalist theory.
The Roots of ‘Privileges or Immunities’
Many crucial aspects of their argument, in fact, depend on abandoning genuine originalism. In explaining the amendment’s “privileges or immunities” clause, for example, Barnett and Bernick discuss Corfield v. Coryell, a classic opinion interpreting a similar constitutional provision almost half a century before the 14th Amendment was written. Corfield was in no sense an originalist decision—it made no inquiry into the origin of the constitutional terms at issue. When the amendment’s authors cited Corfield in the 1860s, they did so as part of their reinterpretation of the phrase “privileges or immunities,” one that gave these words a meaning quite different from what they apparently meant when the Constitution was adopted.
In Barnett and Bernick’s words, those who wrote the amendment relied on a legal theory that was “likely contrary to the original meaning” of the language they were using and employed “a rule of construction favoring the just meaning”—not the original meaning—of the Constitution. In other words, their purportedly originalist argument depends on arguments that were anything but originalist when first formulated.
Their transition away from originalism occurs early in the book when they distinguish between “interpretation” and “construction.” Interpretation seeks the meaning of written words, but construction means finding ways to apply a law’s meaning “when the text runs out”—which “necessarily takes place every time constitutional text is given legal effect.” But if originalism is a theory for interpreting texts, then construction is simply beyond its reach. Instead, construction must depend on some other kind of argument than those that seek to discern the source of linguistic meaning. And that means judges rely on principles other than originalism’s central premise “every time the constitutional text is given legal effect.”
Tossing Out the Stone of Originalism
In addressing this point, Solum has argued that “an originalist approach to the construction zone must be consistent with the normative justifications offered for the Constraint Principle”—which is the principle holding that “constitutional practice should be constrained by that communicative content of … the text.” But those normative justifications cannot be derived from originalism without begging the question. Rather, they are broader propositions about the proper scope of government, the nature of the rule of law, or other principles of political legitimacy.
And that means that when we engage in construction—which is “every time the Constitution is given effect”—we appeal not to a theory about how language means things, but instead to normative precepts of ethics and politics that stand outside originalism’s semantic claims. In other words, we toss away the stone of originalism—and serve up a nourishing philosophical soup in its place.
One small example makes the point. In an endnote contrasting their view with that of Ilan Wurman, who says judges should focus on the “known historical problems” that the Constitution’s authors aimed to solve, Barnett and Bernick reply: “We agree, albeit for normative rather than ontological reasons—an artifact may have a purpose that is entirely unknown to anyone but the designer(s), but recourse to obscure purposes would undermine the rule of law, which requires that the law be accessible to those who are required to follow it.”
Barnett and Bernick never attempt to derive these italicized phrases from any consensus on the part of the Constitution’s authors. On the contrary, they appeal to “normative” views about the proper role of government (including, ironically, the proposition that recourse to obscure purposes would contradict more fundamental legal principles).
Agreeing with the Framers
They are correct in this, but it’s far removed from anything distinctively originalist. While the Constitution’s authors likely shared their view, it stands on its merits, not on the authority of any definitive meaning-giver. If we were in doubt about that, we need merely consult the Constitution’s authors, who defended such principles by appealing to the laws of nature and of nature’s God—not the opinions of previous generations.
Barnett and Bernick do acknowledge that when they engage in construction, they go beyond originalism’s semantic principle. But they argue that they’re still practicing originalism because construction must be guided by the amendment’s “spirit”—by which they mean its function as made clear by the political and legal philosophy that led to its adoption. They contend that there’s no need to read the minds of the authors. Instead, merely look at how the Constitution’s various components interact with each other, a process they compare with figuring out how a machine works by investigating “the functions of its constituent parts.” This, however, is much closer to Moore’s natural law interpretation than to anything properly characterized as originalist.
Similarly, in an article that more thoroughly explains their theory, Barnett and Bernick argue that judges engaged in construction owe a “duty of good faith” to implement the “spirit” of relevant constitutional terms. Among other things, this duty requires judges to inquire “into the objectively assessed fit between the means adopted and the ends that are within the proper scope of a constitutional actor’s powers.”
But that isn’t originalism—it’s objectivity. If we don’t base our understanding on “shared neurological events” (such as a historical consensus that gives words their meaning), but instead examine the components in light of what we know about machines in the real world, then the machine’s origin is not significant for our theory, or at least no more so than other relevant considerations. And if our jurisprudence is guided by objective assessments, it’s not being guided by the proposition that language’s meaning is vested by some historical fact.
Not Dependent on History
Once again, we’ve eliminated the stone of originalism from our constitutional soup, a point that becomes clear when Barnett and Bernick conclude that “the moral legitimacy of a legal regime is not a function of intersubjective agreement or perception,” but “a function of moral and institutional reality.” Given the critical role the 14th Amendment’s protections for liberty play in rendering our constitutional order legitimate, that proposition—which, again, is correct—seems to account for their entire argument, without the need to appeal to who thought what when.
This may seem like quibbling over labels. For one thing, a reader can share Barnett and Bernick’s conclusions about the 14th Amendment without endorsing the more ambitious and less plausible claims of originalism itself. Moreover, as the two argue, the amendment’s authors appear to have expected future generations to expand on the meaning of words such as “liberty,” so it’s reasonable to conclude that the original meaning of the amendment—if such a thing exists—was that it not be limited by the beliefs of a particular time.
Yet the authors argue at length that it is important to get such subtleties right, to avoid later misinterpretations of the law and to vindicate the Constitution’s legitimacy. If that’s true, then it would probably be best to omit the unnecessary stone of originalist theory—a theory that suffers debilitating weaknesses anyway—and make a case for constitutional liberty that’s openly predicated on the objective meaning of the law.