The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick
ARTICLE The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick Kurt T. Lash* In 1871, John Bingham explained the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause—a clause Bingham himself drafted and had successfully convinced his colleagues to add to the Fourteenth Amendment in 1866. According to Bingham, […]The postThe Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernickappeared first onNotre Dame Law Review.
ARTICLE The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick Kurt T. Lash* In 1871, John Bingham explained the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause—a clause Bingham himself drafted and had successfully convinced his colleagues to add to the Fourteenth Amendment in 1866. According to Bingham, […]The postThe Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernickappeared first onNotre Dame Law Review.
Executive Summary
This article by Kurt T. Lash responds to the arguments presented by Barnett and Bernick regarding the Privileges or Immunities Clause of the Fourteenth Amendment. Lash provides a historical analysis of the clause, emphasizing John Bingham's explanation in 1871, which suggests that the clause protects enumerated rights. The article critiques the Barnett and Bernick interpretation, arguing that it is inconsistent with the historical context and the intentions of the framers. Lash concludes that the enumerated-rights reading of the clause remains a viable and compelling interpretation. The article's focus on historical analysis and its critique of the Barnett and Bernick interpretation make it a significant contribution to the ongoing debate on the Privileges or Immunities Clause.
Key Points
- ▸ Lash critiques the Barnett and Bernick interpretation of the Privileges or Immunities Clause as inconsistent with historical context
- ▸ The article emphasizes John Bingham's explanation of the clause in 1871 as a key piece of evidence for the enumerated-rights reading
- ▸ Lash argues that the enumerated-rights reading remains a viable and compelling interpretation of the clause
Merits
Strength of Historical Analysis
Lash's article provides a detailed and well-researched historical analysis of the Privileges or Immunities Clause, which strengthens his argument for the enumerated-rights reading.
Clear Critique of Opposing Interpretation
The article presents a clear and concise critique of the Barnett and Bernick interpretation, highlighting its inconsistencies with historical context and the intentions of the framers.
Demerits
Limited Engagement with Counterarguments
While Lash presents a strong critique of the Barnett and Bernick interpretation, he may have benefited from engaging more fully with potential counterarguments and addressing potential weaknesses in his own argument.
Overreliance on Historical Evidence
While historical analysis is a key strength of the article, Lash's reliance on this evidence may be seen as insufficient to fully establish the enumerated-rights reading as the definitive interpretation of the clause.
Expert Commentary
Lash's article is a significant contribution to the ongoing debate on the Privileges or Immunities Clause. His historical analysis and critique of the Barnett and Bernick interpretation are well-researched and compelling. However, the article's limitations, including its limited engagement with counterarguments and overreliance on historical evidence, should be acknowledged. Nevertheless, the article's focus on the enumerated-rights reading remains a valuable and timely contribution to the ongoing discussion. As the debate on the Privileges or Immunities Clause continues, Lash's article will be an important reference point for scholars and practitioners seeking to understand the complexities of this clause.
Recommendations
- ✓ Recommendation: Further research is needed to fully engage with potential counterarguments and address potential weaknesses in the enumerated-rights reading.
- ✓ Recommendation: A more comprehensive analysis of the implications of the enumerated-rights reading for policy and practice would be a valuable next step in this ongoing debate.
Sources
Original: Notre Dame Law Review
