by George Thomas*
Original meaning, with particular focus of the Fourteenth Amendment, has enjoyed a renaissance in recent years. Scholars and justices across the political divide have turned to one form or another of original meaning to aid them in interpreting the Constitution. And yet, by and large, jurists on both the left and the right remain united in their neglect of economic liberty. This is curious because the debates over the Fourteenth Amendment reveal that those who framed and ratified the amendment were deeply concerned with economic liberty.
Taking the original meaning of the Fourteenth Amendment seriously, economic liberties would at least warrant some constitutional scrutiny from the Supreme Court and would figure in the calculus of the president and Congress in framing laws. As it stands, the Court has begun to apply a lenient standard of review to the textually specific “takings” clause of the Fifth Amendment, watering it down, if not reading its limitations on governmental takings of private property for public use out of the Constitution.[i]
In a curious political turn, we may soon be having a national conversation about economic liberty in a manner that has not occurred since the early years of the New Deal. President Obama’s extraordinary ambitions to fulfill Franklin Delano Roosevelt’s “second bill of rights,” succeeding were even Roosevelt failed, may alter this settlement. President Obama is deeply linked to FDR’s New Deal agenda and aspires to be a president who seeks to “reset the very terms and conditions of constitutional government.” For FDR the “task of statesmanship” included a “redefinition” of rights, where “property rights” would yield to the imperatives of progress. It was in the wake of the “Constitutional Revolution of 1937” that long standing economic liberties were read out of the Constitution. Much of Obama’s agenda—health care, for instance—is rooted in FDR’s “second bill of rights” as he seeks to complete “FDR’s unfinished revolution.”[ii] This attempt offers a chance for the country, and perhaps even the Court, to revisit the question of economic liberty. We might begin this “conversation” with the understanding of civil liberty articulated in the Fourteenth Amendment.
If the congressional debates over the Fourteenth Amendment are occasionally obscure—which might also be said of the textual language of the amendment—they are not on the issue of economic liberty. It clear from the debates that the newly freed slaves, to be truly free, would require, to borrow John Locke’s formulation, “ownership” of themselves. Indeed, when the framers of the Fourteenth Amendment spoke of civil liberties, the liberties they most frequently mentioned were freedom of labor and occupation and the right to acquire and control property—rights that could find protection and be summed up by the fraught phrase—“liberty of contract.”
This is most evident in turning to the Civil Rights Act of 1866, which is deeply intertwined with the Fourteenth Amendment. While the Fourteenth Amendment began on a separate track from the civil rights bill, the two would become intertwined; it is not inapt to suggest, as numerous scholars do, that the Fourteenth Amendment, at the very least, sought to constitutionalize the Civil Rights Act of 1866. The act was titled “an act to protect all Persons in the United States in their Civil Rights, and furnish the Means for their Vindication.” Section I of the act spoke “of citizens, of every race and color,” who “shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease sell, hold, and convey real and personal property, and to full benefit of all laws and proceedings for the security of person and property, enjoyed by white citizens.”[iii]
The rights deemed most important in this context were rights of contract and property based on the moral liberty to control one’s labor. This is, no doubt, because the “Black Codes” passed in the wake of the Thirteenth Amendment were aimed at depriving blacks of these very liberties. But the fact that they were thought of as fundamental liberties is evident from the congressional debates. Senator Lymon Trumball, a leading defender of the civil rights bill in the Senate, explained that the “first section of the bill defines what I understand to be civil rights.”[iv] Other members of Congress echoed this sentiment.
It is striking to note, against the backdrop of the government’s rescue of large corporations, that economic liberty was often deemed most important to minorities and small businesses. It was frequently the less powerful that depended on the formal protections of law against powerful larger businesses that were often able to sway that government to pass laws favoring them. This is evident in Kelo v. City of New London (2005), the recent takings case that captured national attention. There the City of New London transferred its power of eminent domain to a private development corporation, which then seized private homes that would, in part, be transferred to the Pfizer Corporation to lure the company to New London. In the name of “economic development,” the private property of the less powerful was transferred to a powerful private corporation. Pfizer has subsequently pulled out of the deal.
Recovering a sense of the importance of economic liberty is not an act of antiquarianism, or to be governed by original meaning as the “dead hand of the past.” Such liberties will only be liberties in a meaningful sense if they come, once more, to be held by the people. Recovering the logic of “economic” liberty could deepen our sense of liberty—and its counterpart, responsibility—more generally. And revisiting the nature of rights, and the logic that underlies the Fourteenth Amendment, would also seem invaluable in our coming conversation about “positive” rights and the reach of governmental power.
* George Thomas is Associate Professor of Government at Claremont McKenna College and the author of
The Madisonian Constitution (Johns Hopkins). His essay on “Economic Liberty and the Original Meaning of the Fourteenth Amendment” is forthcoming in the spring issue of
National Affairs. The opinions of Professor Thomas are not necessarily those of the Jack Miller Center.
[i] Kelo v. City of New London, 545 U.S. 469 (2005).
[ii] Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004).
[iii] The Civil Rights Act of 1866.
[iv] The Congressional Globe, January 29, 1866, at 476.
Tags: Claremont McKenna College, Fourteenth Amendment, George Thomas, Kelo v. City of New London,Supreme Court
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