Incorporation, Total Incorporation, and Nothing but Incorporation?

Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce inequality among citizens of the United States. Lash and I agree about a great deal, but this Article provides a focused explanation of the clash between our two books. Searchable electronic databases have produced an amazing variety of new evidence and argument related to the Fourteenth Amendment’s original meaning and the enumerated-right controversy. Lash’s book vividly shows that there is an enormous amount that the last seventy years of discussion of incorporation failed to uncover. Here, I raise six problems for Lash’s enumerated-rights-only view: (1) the gulf between the constitutional needs of the Founding and Reconstruction; (2) the inherent unabridgeability of federally enumerated rights through state action; (3) textual and historical complications for sharply distinguishing Article IV from the Fourteenth Amendment; (4) equality-focused interpretations of the Louisiana Cession language and of the Privileges or Immunities Clause, explaining the Clause in terms of the Civil Rights Act of 1866; (5) 1866 disputes over voting rights and indefiniteness, incomprehensible on the enumerated-rights-only view; and (6) subsequent-interpretation evidence, especially the use of the enumerated-rights-only view against the Civil Rights Act of 1875

The History of the Loyal Denominator

This article offers a defense on the view that aims to fit the text and history of the U.S. Constitution, preserve Fourteenth Amendment legitimacy, and clarify the Fourteenth Amendment\u27s author by framing it as an expression of the victorious Union\u27s Republican principles

This Constitution: Constitutional Indexicals as a Basis for Textualist Semi-Originalism

Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance is misleading. The Constitution repeatedly refers to itself with the phrase “this Constitution,” and claims to make itself supreme law of the land. Debates over what should be supreme for constitutional interpretation can be resolved if but only if, we have a sufficiently-detailed understanding of what the Constitution is. I consider seven possibilities for what might be the interpretively-supreme “Constitution”: (1) the original expected applications;(2) the original ultimate purposes;(3) the original textually-expressed meaning or Fregean sense (the alternative I favor);(4) a collection of evolving common law concepts;(5) a text expressing meaning by today\u27s linguistic conventions;(6) a collection of moral concepts refined through an evolving tradition of moral philosophy;and (7) a collection of non-binding recommendations. Resolving between these alternatives is possible if, but only if, we know that “this Constitution” means. The phrase “this Constitution” on its own is not perfectly perspicuous;the “this Union” clause in Article TV shows that “this” can refer to entities that are neither composed of text nor fixed and unchanging. It is not immediately clear what event — what “constituting” — the word “Constitution” refers to. Canvassing in detail the indexical language of the federal and state Constitutions, I argue that the Constitution is composed of language whose meaning is fixed at the time of the Founding. The close textual relationship of “this Constitution” to forms of “here” and to “enumerate” and explicit references in state constitutions to “this Constitution” appearing on parchment, including bits of language, and doing things “expressly” all point toward a Constitution that is composed of language, and so to textualism. The use of “now,” the distinction in the Preamble between “ourselves” and “our posterity,” the specification in the Preamble and Article VII of ratifying conventions as the constitutional author, and the reference to “the time of the Adoption of this Constitution” all point toward a non-intergenerationally-authored constitution that speaks at the time of the Founding and is historically fixed. This Constitution... shall be the supreme Law of the Land;and the Judges in every State shall be bound thereby...(FN1) The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...(FN2) Reprinted by permission of the publisher

This Constitution: Constitutional Indexicals as a Basis for Textualist Semi-Originalism

Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance is misleading. The Constitution repeatedly refers to itself with the phrase “this Constitution,” and claims to make itself supreme law of the land. Debates over what should be supreme for constitutional interpretation can be resolved if but only if, we have a sufficiently-detailed understanding of what the Constitution is. I consider seven possibilities for what might be the interpretively-supreme “Constitution”: (1) the original expected applications;(2) the original ultimate purposes;(3) the original textually-expressed meaning or Fregean sense (the alternative I favor);(4) a collection of evolving common law concepts;(5) a text expressing meaning by today\u27s linguistic conventions;(6) a collection of moral concepts refined through an evolving tradition of moral philosophy;and (7) a collection of non-binding recommendations. Resolving between these alternatives is possible if, but only if, we know that “this Constitution” means. The phrase “this Constitution” on its own is not perfectly perspicuous;the “this Union” clause in Article TV shows that “this” can refer to entities that are neither composed of text nor fixed and unchanging. It is not immediately clear what event — what “constituting” — the word “Constitution” refers to. Canvassing in detail the indexical language of the federal and state Constitutions, I argue that the Constitution is composed of language whose meaning is fixed at the time of the Founding. The close textual relationship of “this Constitution” to forms of “here” and to “enumerate” and explicit references in state constitutions to “this Constitution” appearing on parchment, including bits of language, and doing things “expressly” all point toward a Constitution that is composed of language, and so to textualism. The use of “now,” the distinction in the Preamble between “ourselves” and “our posterity,” the specification in the Preamble and Article VII of ratifying conventions as the constitutional author, and the reference to “the time of the Adoption of this Constitution” all point toward a non-intergenerationally-authored constitution that speaks at the time of the Founding and is historically fixed. This Constitution... shall be the supreme Law of the Land;and the Judges in every State shall be bound thereby...(FN1) The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...(FN2) Reprinted by permission of the publisher

Feature Comment: The Inflation Reduction Act: A New Role For Green Procurement?

The 2022 Inflation Reduction Act of 2022 (IRA) (H.R. 5376, now P.L. 117-169) marks one of the most significant steps forward in U.S. environmental policy in decades. The IRA provides for hundreds of billions of dollars in energy and climate spending. While federal procurement provisions do not play a central role in the IRA, the legislation does include significant provisions related to federal spending, for example regarding federal purchases of environmentally sound building products. Even more importantly, taken in context, the IRA follows a number of other steps taken to advance “green” procurement by the Biden administration. The legislation thus helps define an upward trajectory in environmental initiatives, several of which have been accompanied by corresponding developments in federal procurement regulations