john witt afterwards is a weekly interview program with relevant guest hosts interviewing top nonfiction authors about their latest work. welcome randy barnett evan bernick. it's wonderful to be here with you. i'm great really glad to be having a conversation about your amazing. amazing new book, which i've got. i've got right here. hope we can just jump right right into it. well, it's great great for you to do this. we really appreciate you doing this and i'm looking forward to the conversation. we're about to have. i as well. i'm looking forward to it. i'm sure that we're going to have a lot of fun. but what really really my pleasure is going to be mine. it's um, this is a book. i really encourage people to go out and get it and take a look. i can't think of a better cutting edge introduction to this fascinating and controversial thing called original plane original public meeting constitutionalism. we've got things like a blow-by-blow of the drafting of the 14th amendment we have an amazing and wonderful introduction to the growing historical literature on antislavery constitutionalism, which is so decisive from the we're still today shaped by the 1840s and 50s and this is a book that helps readers. see see that and it's a book and this is really what i hope we we talk about a lot here is it's a book that says that nearly everything we know about some of the key sections of section 1 and section 5 of 14th amendment is all wrong, so i'd love to to get into some of that with with you here. is a place i thought we might start and i hope i'll be interested to see what whether you think. this is a the premise of this question is right, you know when i think about originalism and of course, they're now many originalisms in this flourishing and controversial space when i think of originalisms, i think of philadelphia, i think of 1787, you know, maybe it's not a philadelphia cheesesteaks and tasty cakes are principal parts of my diet. and so i think about 1787 james madison james wilson the founders in that 18th century sense. tell me what it meant for you guys to write a book that was about originalism but took reconstruction as its central as its central topic. well, what did that mean? what's it significance? i'd love to know more about that. well, i first became a familiar with antislavery constitutionalism some 15 or 20 years ago. i had a guggenheim fellowship and i decided to develop myself to familiarizing myself with this. i originally knew about one guy in particular lysander spooner, but then i discovered that he had a whole cohort of people he was interacting with including frederick douglass and how complicated and how sophisticated their arguments their constitutional arguments were and but i did it on a lark i did it just because i was independently interested in i didn't actually think it was going to connect up with anything that i was doing as a constitutional law professor, but then when evan and i started collaborating on the work on the original meeting the 14th amendment it was quite obvious and in fact i even article published in the journal of legal analysis, which was about each and every word and each and every clause in the 14th amendment and how the antecedents of those clauses lie in antislavery constitutionalism. but when evan and i started working on it what we needed to take account of was the degree to which the republican party which was the successor party from the liberty party than the free soil party and eventually the republican party as an antislavery party had taken on board many of these arguments not all of them, but many of these arguments and essentially and then eventually enshrined them into the text of the constitution itself in section 1 of the 14th amendment and i think getting back to your original point about when you think of originalism you think of the founding, i think that is been unfortunately all too true of originalist generally and that is that we all talk about the founding and wilson and and madison and morris and all the rest of them as though our constitutional texts stopped there, but in fact it didn't and we all are familiar with some of the moral defects of the founding which were quite serious but our constitutional history preceded a pace and gave rise to the story that we tell in our book that ultimately culminates in an amendment to the constitution. so, let me just define for the listeners what i think originalism is it is the proposition that the meaning of the constitution should remain the same until it's properly changed. by amendment the meaning of the constitution should remain the same until it's properly changed by amendment and our book is about a 14th amendment which does properly change the original meaning of the constitution. so for me the question of why we should pay attention to the antebellum contestation over slavery and the history of reaper reconstruction is a twofold reason first just for the sake of integrity as an originalist if you want to understand the meaning of the text that was ratified into the constitution in 1868. it would be who you to pay attention to the first few decades of the 19th century rather than taking a razor sharp focus just on the period from 1788 to 1791. the seconds reason is because it is in my view a moral obligation on the parts of constitutional scholars judges members of the bar to recognize the degree to which focusing exclusively on that 1788 to 1791 period effectively erases the greatest mass movements in the history of our country and arguably what the possible exception of the haitian revolution the greatest liberatory movement in the entire world a slaveholding republic's power its grasp over all three branches of governments was smashed at the very peak of that power for the first several presidencies of our country. we had a congress and we had a presidency in significant part because of structural features that bolster the representation of slaveholders. overtly, deliberately furthering slaveholding projects both at home and increasingly abroad with an eye too making the united states a slave holding power on par with the supposedly great slaveholding republics like brazil like brazil and other countries. this was not just a fever dream. this was an active program that was designed to spread slavery as the preferred form of organized labor over the entire world and that's whole movements and its grip on the political structure of our country was dismantled. it didn't mean the ends of racial subjugation as the experience of reconstruction and the ultimate defeat of reconstruction. thanks in significant parts of the supreme court demonstrated, but it meant for a few glorious years we had with web de poies as abolition democracy. two branches of the federal government deliberately turning institutions that have been used to dominate and subjugate to liberation to protecting black people against physical violence increasing economic opportunity protecting civil rights and gradually including and excluded people into our social order. this is a remarkable achievement in world history and the way that our current constitutional law approaches the 14th amendment. it is history that is considered for practical purposes almost entirely irrelevant. so both methodologically and morally we can do better and this book is dedicated to that proposition. well, i'm emphatically not originalist, but all the things you guys say really resonate with me. you know the movement from slavery to something like freedom and maybe we should get into that at some point during this conversation is is one of the most important social moral transformations in in world history certainly in the history of the united states and so for sure your core principles of these reconstruction amendments and the 14th may be in particular are should be at the heart of our constitution. so lots of agreement. maybe my non not being an originalism will make some it for some interesting pieces as we move through but here here's a question that arises out of your effort really serious and deep effort to figure out what that social and moral transformation means for our constitution today. you guys leave some things out of the fourteenth amendment in your account of it and self-consciously you tell the reader right up front so you leave out for the most part the citizenship. that leads off the first section of the 14th amendment and then you're not interested in this book in section two of the 40th amendment which was designed to produce an electorate. that would be something like the electorate of the full male population of the south right controversially adds the gender specific pronoun, and it's designed to prevent white southern states from excluding black men from from voting rights you leave out section three and section 4 as well, maybe less important now but still about structure of the electorate and governance the internal governance of the of the united states. why did you leave those things out and i guess the reason i asked to put my cards on the table is i'm wondering whether leaving those things out. changes the nature of the 14th amendment and the lessons of reconstruction that we might think we see in the amendment. well, as you know from having looked at the book, it's pretty long as it is and the and so that by itself is a justification to not do any more work particularly on provisions of the text that are not currently a subject of constitutional adjudication or litigation. so the sections two three and four are just not litigated. i mean there are there actually are some appeals to it occasionally, but they're really idiosyncratic what we really what what modern constitutional law is based on is section one of the 14th amendment and misreadings of section one on the 14th amendment has led to misreadings of section 5 which empowers congress to enforce section one, so i guess the real reason the main reason i would say that is that section one of the 14th amendment or is the most important constitutional amendment that the american people have never heard of and governed this since having written the book and i tell friends and acquaintances or or people and offices that i'm visiting that i wrote a book on the 14th amendment and they and they say, i'm sorry. i just don't know what amendment that is and yet every challenge to a state law based on the first amendment freedom of speech the first amendment free exercise of religion the second amendment right to keep and bear arms all of the so-called bill of rights challenges almost all of the bill of rights challenges that we argue about are actually 14th amendment cases, and i think that fully justifies focusing only on section one and then also on section 5, i do think we we do to talk considerably about citizenship. however, in fact, i think focusing on the citizenship clause and i'm going to ask and i'll have evan say a little more about this focusing on the citizenship clause really helps inform what the privileges or immunities of citizens of the united states are because essentially what the 14th amendment enshrined was what we call republican concept of republic. in citizenship, and if you understand what republican citizenship was that will go a long ways to figuring out what the 14th amendment was supposed to protect and i think if it's okay, i think maybe evan can talk a little bit more about that. sure, but before i do just to address the question of why we didn't focus our energy is on the middle provisions the middle sections of the 14th amendments. my short answer would be that if the supreme court had systematically undermined those provisions with the same dedication that it had done section one and section 5 we might have to write another book and also professor mark graber has anticipated any such effort by dedicating an entire book to the proposition. this is going to be coming at relatively soon that professors bernick and barnett have entirely focused too much energy on sections one and five and neglected the the intervening section. so we look forward to that debate sections two through four really are important to understanding that the 14th amendment was a political amendment it was designed to entrench and place beyond any doubt in the constitution a can a broad inclusive conception, although not maximally inclusive conception of citizenship and to individual rights of all people from depredation, but it was also designed to ensure that institutional structures were in place to ensure that a party that was committed to that vision of citizenship and was committed to that kind of protect baseline protection for all people would remain in power. we don't deny that but we recognize that this is an act of high political morality that genuinely does affect a transformation in the what had been initially a 1788 constitution. that did not define citizenship and left to antebellum forces contesting over slavery to disagree about just what came with being included as a member of the polity. did it simply mean that one had the right to to travel to other states and take one's chances with respect to what states what liberties the citizens of those states enjoyed with respect to what expect to be protected or did you were you entitled to have confidence who ever you were if you were born a naturalized or naturalized in the united states and you traveled throughout the country you could ensure that certain fundamental rights that were necessary to the protection of your liberty and your and civic equality vis-a-vis other citizens were consistently respected. that was the contest that was ultimately resolved in favor of what randy has referred to as republican citizenship at a concept that began its germination within abolitionist circles, but then was then taken up modified somewhat by republicans and embedded in the constitution as a commitment beyond any doubts to this inclusive conception of citizenship grounded and fundamental rights and civic equality together with a commitment to empowering an institution specifically congress to legislate on behalf of those civil rights and check that civic equality in ways that the original constitution or the 1788 constitution had fallen short of doing. well, one of the one of the things about republican citizenship and this is maybe why i asked my question about things that were left out and of course, you know books can't get too long. so i'm hugely sympathetic as i would be book writer myself. i i get that but the republican citizenship has at least two components one component, which you guys bring out really powerfully and creatively and controversially at times which i hope will i'm sure we'll get into you really bring out effectively the individual right side of republican citizenship. so the parts about being a citizen that are about holding off the overweaning power of the state and making sure there's a space for individual liberty that you bring out really. well. i wonder though if leaving out other parts including, you know, a citizenship clause and then section two in particular as i say leaves out the other side of republican citizenship, which is really about the citizen participating in self-governance and democratic democrat. of governance, and so part of what the civil war and reconstruction are to me which means part of what antislavery constitutionalism is for me is the empowerment of the state and of democratic self-governance to change the world in which we live and that that would be empowering state governments empowering the federal government delivering new authority and i worry a little bit to be honest that leaving out those sections. mmm redirects the book makes it a book about individual liberty when actually the 14th amendment is a whole new constitution on both sides of the ledger. so my response to that is that republican citizenship. is not a term that is designed to refer to like the best understanding of republicanism and as understood as a commitment to self-governance the protection of individual rights democratic representation as it has developed in the literature and political science and with respect to also the development of the abolitionist development of abolitionist thoughts. it is a claim that there was at a particular point in time a republican party that ascended to power and had a specific understanding of citizenship and we'd endeavor to unpack exactly what that was. we are very clear that contrary to speaking for myself my own republican small r commitments republican citizenship did not recognize the fundamental nature of voting rights at the time that the 14th amendment was ratified into law. quite this was not because it just never occurred to anybody that's in order to build a citizenship worthy of the name. you needed political rights. but it does recognize that the voices that called for that kind of republican citizenship. we're at that point in time in history, regretfully marginalized and people like that stevens and jacob howard and the countless freed people who participated in what are now an actress mystically referred to as the colored people's conventions and called specifically for voting rights voting rights voting rights, give us suffrage or give us nothing. did not get everything that they wanted and did not give us everything that speaking from my own normative perspective. i would have wanted to see. one of the things that randy and i tried to do throughout this book is to separate what we think. are considered reflection on what the evidence we've uncovered shows from what we would do all things considered. we're not committed to telling people that because the historical record has fallen short of our normative aspirations. we should neglect to acknowledge the underside even of the basic concept of citizenship the basic concept of citizenship draws a distinction between members of the policy and the other in ways that as a matter of political theory i think are profoundly problematic. but did what the 14th amendment represents an accomplished mark a change a dramatic change that's reduced a hell of a lot of harm and would have been able to do a lot more in that regard had it abolition democracy not been, you know, basically shipwrecked by the supreme courts and not to mention revention forces that went out of their way to targets supporters of rights for black people and other marginalized populations. well, yes, absolutely. we acknowledge that but we make our effort to do what we can to find where the evidence leads and also recognize that the evidence does not lead to a happy ending for everybody not even for us the 14th amendment if the 14th amendment did more than it did then we say it did then the 15th and the 19th amendments protecting the right to vote from racial discrimination or sex-based discrimination would not need to have been adopted. so the existence of the 15th and the 19th amendments is evidence. it's not actually a hundred percent proof, but it's evident. it's substantial evidence that the scope of the 14th amendment was limited in the ways that we describe but it has a far greater reach than it's been given it was certainly has a far greater reach than it was by the supreme court immediately after it was adopted and even to this day it has a greater reach than the supreme court is willing to give it. yeah, the only one more point that i would add to this is that frederick douglass actually campaigned against the 14th amendment because he thinks he thought that it didn't secure suffrage rights on the one hand. it was committed to citizenship which he thought entailed voting rights as most black people. who who's the who's access to whose records we have now they consistently act asked for voting rights. they consistently demanded voting rights and roger douglas said look if you continue to look on in this amendment, you'll find in section two that's apparently southern states can continue to disenfranchise people on the basis of race. so long as they're prepared to pay representation in the form of representation to congress. he considered that a limitation and he and other abolitionists like wendell phillips and william lloyd garrison dedicated themselves to saying we need to do better than the 14th amendment. we need to do better if i could just say one more thing about section two and the addition of the word male in the constitution this that edition is what led many feminists at the time to oppose the 14th amendment and the reason they did is instructive they did so because under the previous approach of antislavery constitutionalism, the constitution was gender-neutral that where it says refers to the masculine. he that actually meant under conventional usage human beings in that context. it could mean gender, but it didn't mean gender in the context or sex in the context of the constitution. what object what what feminists objected to so much is that this was going to be the first time that sex was introduced into the constitution by using the word mail in section 2 of the 14th amendment so that to me is the most significant one of the most significant implications of section 2 is what it tells us about how the constitution was previously interpreted to be gender-neutral or sex neutral before section 2 was adopted one of my favorite parts of the book is your long section on victoria woodhull and i think you know pretty if you guys manage nothing. i'm sure you'll do more than this but if you manage nothing except to bring victoria woodhull into originalist conversations, it'll be a great victory for all of us. so thanks for for that. he enough about the that i thank you for entertaining me with the things that aren't in your book so much in the book and and you know a clause by clause rehearsal of the origins meaning at the time and how we should understand some of the most, you know, principal parts of section one. i wanted to ask you in particular about the eagle protection clause and i found really striking and especially innovative. the pieces of your book that were about the equal protection clause and the distinctive reading that you offer for you've also got really interesting important stuff on privileges and immunities. maybe the privileges and immunities is the heart of the book in some ways. so because it's part of the 14th amendment well on your account for sure and on lots of other accounts, i don't i don't disagree with that, but the equal protection piece to me, maybe because i've read too much in the privileges and immunities literature over the years. i hung out with a helamar too often. so to me your equal protection claim was especially distinctive and interesting. i wonder if you think that's right and if you care to elaborate it is distinctive we are not the first scholars to argue that what is often referred to as the state action doctrine which holds that the 14th amendments applies only to state action. it doesn't it doesn't apply to private parties a states failure to act to provide protection for civil rights. against private actors doesn't trigger the 14th amendment. that's what current law says, so we're not the first to challenge that consensus, but what we do add first of all is recognition of the degree to which the post recons or the the program of reconstruction really did depend upon that understanding being widely held amongst republicans who sought to remedy precisely the failure on the parts of southern states to act in order to protect people against the ku klux klan both enslaved formerly enslaved people and their white allies against systematic violence and depredation. so while the core claim isn't new we do make an effort to reckon with that history and to show just how centrally important it was to those who ratified the 14th amendment into law and those who consider them their ideological successors to ensure that congress. could act if states failed to protect people in respect of their civil rights. well, one of the great virtues of the book is the way you go into the post-enactment statutory history with the clan acts the enforcement acts and these are all pieces of legislation by which congress tried to take this new thing the 14th amendment and then enact legislation. you'll create the justice department at just the same time with the project of being able to protect newly freed people against the ku klux klan and other forms of of white racial and political violence against republicans and against them against newly freed black people. so so i that's wonderful part of the book. i think the reason why it's struck me is i i imagined that the equal protection the extending legal protection clause. opposed an interesting challenge for the effort to protect individual liberty a challenge a little bit like runs along the following lines. you didn't want to say as some people who've done this before say but there's no difference between action and inaction. you didn't want to say that you also didn't want to challenge the state action doctrine entirely and say that there is no there's no there's no distinction between the state on the one hand the public and instead the private and instead you introduce, you know, an interesting three-part set of categories in which we have a public and governmental. public and nongovernmental and private and non-governmental these are these are categories that i hadn't encountered before in my reading in this in this space and i imagine that what's going on there. is that if you want to create a charter for individual liberty that restrains the state it's dangerous to start inviting the state to manage conduct between private parties. and so that's a complicated line for you guys as you as you walk this 14th amendment out in to the private sphere. am i my right to sense some some stage management on your parts. well, i think you're absolutely right to call attention to the three categories. in fact, i'm about to give a talk to the national national lawyers convention of the federalist society to on friday in which i emphasize the three categories because they're unfamiliar to to most constitutional lawyers and most members of the general public work accustomed to thinking of private non-governmental as a category and public governmental as a category and then as you know an academia, there's a lot of effort to collapse or to contest the public what's called the public private distinction, but what we've attempted to what we found when we looked at the evidence, is that the only way to explain the republicans conception of citizenship as well as the equal protection of the laws is to realize that they had a third category in mind and as soon as you point that out you have to come you have to immediately acknowledge things that for example the first justice john marshall harlan acknowledged in his dissent in the civil rights cases that invalidated the public accommodations law of 1875 that there really were three categories and there could be found in the common law the common law that governs the the relation of innkeepers to the general public the common law the governs the relation of common carriers to the general public the the category of businesses that came to be called businesses affected with the public interest after the 14th amendment was adopted is a middle category in which instead of priv. non-governmental and public governmental in the middle you have public non-governmental now that does it is not to say and it's important to insist that that middle category is neither over here nor is it over here? therefore it's not necessarily governed by the same principles that would govern here or govern here and pride the predominant principle that governs this middle category is the principle of non-discrimination non-arbitrary exclusion from this regime this area of our public life. that is what we have a right to participate in as citizens of a republic and so a non-discrimination norm in the middle is not to be confused with the the kind of discrimination norm that we really can do on the private non-governmental side. and since we decide who we want to marry and we decide who we want to go to dinner with and who we want to go and watch the game with these are all purely private decisions or on the governmental side. where are the government is not free to make any such distinctions among a citizens in the middle. it's a middle terrain, but this is the this is the area that the republicans sought to reach. with the civil rights act of 1875 which bar discrimination in public accommodations and and once it was invalidated it didn't get renewed that that commitment to nondiscrimination didn't get renewed until the civil rights act of 1964 which because of the precedent established by the civil rights cases was thought to be it was thought necessary to do so under congress's commerce power instead of its civil rights power, which has been used to justify and over generous or an overexpansive reading of the commerce power because unless you have this over expansive reading the commerce power, you can't protect civil rights, but in fact there actually is a civil rights power in the constitution in section two of the 13th amendment and section 5 of the 14th amendment if i can just make one other point, that's somewhat related. i think the most important one of the most important distinctions for people to realize is that the 13th amendment was designed to make uncon national and prohibit slavery involuntary servitude the 14th amendment was designed to address legalized white supremacy that arose in this country in the aftermath of the abolition of slavery those who have favored the abolitionist of slavery really believed and i could imagine why it seemed right to them to believe that if you just abolished slavery. everything would be okay even and especially if it took a war to do it once this slavery was abolished we would go about our business except that's not what happened. what happened is the is the emergence of a terrorist movement on behalf of white supremacy in a large part of the country that had to be suppressed both legally with federal troops, but statutorily with civil rights laws and then the authority for those civil rights laws had to be provided by an constitutional amendment, which would then enshrine those principles even when eventually the southern democrats would come back into congress and perhaps repeal some of these laws so you have one amendment aimed at slavery, but you have another amendment aimed at white supremacy and it was the failure of the supreme court and then the federal government after that to enforce that amendment that led us to 80 or 90 years of jim crow subjugation in this country that we really didn't have to experience. at the has a lot. go ahead with the a lot a lot of you know, one of the things i hope viewers are seeing. is that the book connects readers up to the whole expanse of the constitutional project the constitutional experience from the 1860s to the 1960s and and beyond i mean, you know reading this book you're in more sitting against the united states and and the violence against women act even as you're with victoria woodhull. i mean, it's really it just as randy suggests it connects up all these all these things. i didn't mean to cut you off evan. oh, i was just going to express a mild disagreement with my coauthor with respect to the 13th amendments and precisely what it was able to do the 13th amendment. notoriously does not entirely ban slavery or involuntary servitude. it does so accept in punishment for a crime and southern states responded. to that space by enacting laws that were designed to impose slavery by another name by means of text that allowed them arguably to do precisely that the 14th amendments was unquestionably a means of going beyond the abolition of slavery to abolish white supremacy, but it was also a makeup of sorts for the limitations of the 13th amendment in achieving the kind of justice in creating the kind of citizenship that republicans desired. i mean if you look at the leading republicans who spoke in the 39th congress about what they understood the 13th amendment to be able to do with the exception of john bingham and a couple of other, you know, hardline antebellum federalists who had a conception of congressional power that was more limited the idea. was that the 13th amendments simply by flushing slavery would enable the creation of republican citizenship without any further constitutional amendments the 14th amendment was a recognition both of the limitations of the 13th amendment as well as an effort to go above and beyond the 13th amendment in actively creating citizenship this by the way is exemplifies why it has been so wonderful to collaborate with evan on this book as a co-author because this is the kind of interaction we have all the time in writing this book. i don't disagree with a word that evan just said i didn't disagree with it. he isn't that he's just persuaded me but i don't disagree with the word. he said but notice i expressed myself in one way and then he came back and did a bit of editing into how i expressed myself and this is how we work together for i don't know maybe two or three years in the course of writing our previous articles and then writing this book, so hopefully the end result is this mutual editing and this mutual adjustment. so we finally hit upon something that is it is far. sound that either one of us could have produced without the other randy and i don't agree on everything. we agree on everything that made it into print in that book. what sounds like the best kind of co-authorship but it comes out in the book. it's really well a well-crafted a wellcrafted piece of work one of the things that the book does is what will do i think is introduce a new set of readers who may be interested in reconstruction to the questions about original public meaning originalism and and the theoretical interpretive moves the you start the book off with but then run through your effort to make sense of what the history means for us in the present and as i found myself thinking about significance of vote that interpretive move i was struck time and again by questions about whether or not original public meaning originalism could do the work that other forms of originalism had seemed to do over time and maybe a way to illustrate that would be i take it from our discussion of the equal protection clause and and the state action doctrine or the relations among private parties in this category of public but non-governmental, you know. randy said i think just a moment ago that that public but non-governmental category becomes the category of businesses affected with the public interest that's you know, classically grain elevators and the like in the 1870s, but of course that category businesses affected with the public interest is, you know, hugely open-ended eventually in the 1930s will come to include milk production. it's not a containable category since the public interest reaches so many different places and by distinguishing original public meaning originalism from original expected applications originalism. i found myself really wondering whether you're really powerful creative interpretations of the 40th amendment section one more capable of of con. in limiting, which is the work that originalism seemed to be able to do at least by its proponents account for for so long. am i am i wrong the sense that sense a difficulty down that path for you and if that's where the evidence leads that's where the evidence leads as far as we're concerned a project that is dedicated only to constraining the discretion of judges regardless of what the effects of that are in delivering on the full promise of the law that they promise that they take an oath to follow and dedicate themselves in at least in a number of important cases claim to be guided by then that those are the breaks one of the points that we do try to stress. is that simply because a concept is blurry at the edges. it's more of a family resemblance than a you know, necessary and sufficient conditions concept doesn't mean that there's no core to it and we can find core of settled meaning even in concepts that are contested at the boundaries and the edges, but you're right that we're not going to be able to deliver on like the promise of raul burgers original expectations originalism as articulated by early originalists who seemed at points to go out of their way to emphasize that the 14th amendment really didn't do much at all, but, you know so much for the worst of it readers can make their way through the historical evidence and judge who has the better of the arguments and as you know, one of the things we do in the beginning of the book is explain the difference between the original public meaning of the letter of the constitution, which is what originalists should be looking for and implementing that original public meaning in light of the spirit of the text which we are and that's the subtitle of the book the its letter in spirit. the spirit of the text is the original purpose the original function the original n the original object. whichever word you choose of those provisions. what work were supposed to do and in the book and we believe this is a historical question as well. this isn't the purposes that we would like it to do. it is the purposes that existed at the time it was implemented and what it means to be faithful to be genuinely faithful in applying the original public meeting into new circumstances, and that's why in order to re-emphasize that methodological point. we separate the consideration of the spirit into separate chapters, so it's clear that having laid out the original public meeting. we're now going to turn our attention to something that's different. it's related. it's historical but it's different and it's something that sort of resembles framers' intentions, but only at the level of publicly known of publicly available purposes, which is what even critics of originalism like paul brest thought was a perfectly sensible way and a perfectly commonplace way of faithfully applying law or text to particular problems. and just another way to illustrate. this might be that go back to the question of state action and the public-private distinction. the public-private distinction has come under withering criticism for virtually every school of thought within legal scholarships since at least the early 20th century, but we don't reject the public private distinction or reject the state action doctrine because we think that their ultimately muddled or incoherent or normatively in defensible. we embrace a a version of it because we are convinced on the basis of the evidence that we have discovered that republicans believed in it enough to entrench in the constitution a commitment to it in the form of privileges or immunities that incorporated common law distinctions and we go with that by saying we're not adopting in full these critiques of the state action doctrine. it's not necessarily that well, we don't buy them and we're about overwhelming government, although we might be but it's just not within our purview as original as to a pine on the all things considered conceptual merits of something that for us is from the mentally a historical inquiry. well one of the things you make accommodation for a couple times in the book is the institutional limits of the judiciary and so institutional capacities of judges in the distinctive institutions. they they find themselves and in and i guess it led me to wonder whether if if we're going to do section 1 45 minute analysis of relationships created by businesses affected with the public interest. i started to wonder whether courts would have the institutional capacity to do that work and in whether instead they'd have to defer to legislatures to do really quite substantial regulation over time in the relationships between private parties when businesses will affected with the public interest were in those were in those stories. you see why the business affected with the public interest category. i think might not be quite as simple for you. because it's an invitation for for regulation. i don't want to overemphasize i did use the phrase business affected by the public interest because that is a phrase that came to be used in this third category. i totally agree with you. it is a completely under theorized category that ultimately broke down when the supreme court held that anything that the public cares about enough to pass a law about is by definition something in the public interest, which is what happened in the 1930s, and i don't agree with that so you do need to be more concrete that you're right as a historical matter that phrase did not did not hold up. i just use it because it signifies the existence of a category that i think needs to have more content and more about it and which i do think we can somewhat find in history but having said that as you i thought you were alluding to the part of our book, which i actually was maybe one other parts. i most enjoyed working with evan to develop is this idea that supreme court has narrowed the meaning of section 1 in part because of its perception perhaps correctly. the judges are incapable of actually administering a broader conception of section 1 and as a result of that they have narrowed congress's authority under section 5 because they say well congress can know section 5 it has to be remedial of the scope of section one, and we're narrowly construing section 1 but why are they narrowing construing section one? it's because of lack of judicial competence to actually give it its full effect. what we're arguing for is the courts who recognize that section 1 represents an under-enforceable or an under judicially enforceable norm that congress is free and state legislatures are free to do a little more of the work on that the judge the courts are not capable of and the exhibit one of the cardinal work that legislatures do is they pass public accommodations laws the district of columbia in which and i are sitting right now has a public accommodations laws in which they're fleshing out exactly the terms on which people can access public accommodations free of discrimination on the basis of a number of categories. that is something that the courts are not capable of doing but this that the district of columbia and every other state in the union is capable of doing so that is i think one of the innovations of the book to point to the fact that many of the supreme courts narrow constructions of the of section one of the first 14th amendment are driven by justified justified concerns about judicial competence, but then section 5 is there to bring in the legislature in this case congress to make up for some of the deficiencies that the courts cannot make up for just clarify what we are not saying we are not saying that the supreme court should on the basis of its own institutional judgments about whether constitutional rights are either worth enforcing or whether it's good at enforcing decline to enforce them or defer to other institutions. we are making a specific claim that republicans believed that congress and legislatures more generally based on their experience during the antebellum period and their confidence that republicans would hold congress for substantial amount of time would be better equipped to protect civil rights than the supreme court that decided dread scott the sanford and prigview, pennsylvania upholding the fugitive slave act of 1850. this was an institutional judgment that was embodied in a section 5 that specifically singles out congress as a privileged enforcer of the norms that are imposed upon the state's by section 1, so it is not a free-standing institutional judgment on our part. it is one that we argue is made in the letter and consistent with the spirit of 14th amendment well the growing or empowering section 5 is something where where the three of us are all going to agree. i think that you think you really did wonderful powerful work there. and those are those are really important arguments and i'm in complete agreement on the on the back to this original public meaning idea and the question that i tried to start with about what its relationship will be to earlier originalisms. something that seems to come along with your really creative innovative cutting-edge original public meaning account is the idea that individual rights are open-ended to time that is new ones will emerge that will be ought to be judicially recognizable. there's an it's not a closed set of liberties protected by section one of the 40th amendment on your account. you see there's a bunch of times and i was really struck by it interested in it. and i guess the reason is that a naive reader and by naive i might mean i might mean even a pretty expert reader certainly me. i don't know whether i'm naive or expert but might think while it looks like originalism and living constitutionalism have had a wonderful embrace at last. this is just living originalism with a new meaning it's called originalism in the spirit and it'll grow over time as we grow over time. so am i helped me through this thicket. it looks either a thicket or it's an embrace. i'm not sure which i've mixed the metaphors. so it is a question that we get a lot and we enjoyed working our way through during manuscript sessions in which professors of various political persuasions tested us on just how much we were giving up in respect of the initially attractive to conservatives promise of judicial restraints by acknowledging that new privileges or immunities could arise and be recognized by judges over the course of time. but it's important to specify exactly how we say they get recognized because there is a difference between at least prevailing forms of living constitutionalism or non-originalism and are specific vision about the recognition of new rights as well as the basis for our judgments that we should approach constitutional rights in that way. it is not for us a notion. that judges should only recognize rights that have emerged over the course of time and have are widespread in the states because it's promotes social. peace. it enables the judiciary to respond and effective ways that respects the limits of it and it's precurious cancer precarious democratic perspective constitutional position. it is a claim about what privileges and immunities were understood to be at the time that the 14th amendment was ratified and how you went about identifying them. we claim that a privilege and immunity of citizenship was something that was the subjects of widespread borderline supermajoritarian consensus across the states and had survived for something approximating a generation of time then and only then did you have a genuinely new privilege or immunity of citizenship emerging and whatever approach whatever similarity is one might point to between say, you know, professor david strauss is common law constitutionalism and the vision of privileges and immunities that i just articulated one that is based on a specific choice made at the point of ratification and one that allows for the emergence of rights only after they come something close to a threshold for constitutional amendment over a generation. i think that the difference between those two visions is one that notwithstanding your initial skepticism and decision that we encounter literally all the time does mark our approach is something different both methodologically and operationally. but even and eat but even if you disagree not you but if even one reader a disagree would disagree with extending privileges or immunities to those that are established after 1868. that is not an argument from from against fully protecting the privilege of immunities that did exist in 1868 which are under protected by the supreme court today when they discussed disregarded the privilege of immunity's clause altogether so many of the current decisions that are decided under the rubric of substantive due process are actually entirely justified under the rubric of privileges or immunities and one of the most important functions of our book isn't reformist. it's legitimation. it's legitimizing it legitimates. it legitimates many many existing doctrines that appear to be in conflict with the original meaning of the constitution and therefore arguably illegitimate. they turn out to be in content. can they turn out to be consistent? with the original meaning the constitution and therefore are not subject to that kind of criticism and that would be true of many of the rights that are protected under the rubric of substance now protected under the rubric of substantive due process. is it a one-way ratchet? you see you see that you see the thrust of the question. okay, just over time. we should expect to see ever more individual liberties ever more limits on what we can do. we the people can do in governing our community. should i expect to see a one-way ratchet? this is this was a tough question for us again. this was we had we workshop this book at several law school faculties, and we got this question indifferent forms quite a quite frequently at a very minimum what we do in we do insert is that any rights that are protected by virtue of the constitutional amendment. that's the 14th amendment can be repealed by virtue of a subsequent constitutional amendment. so the 14th amendment did amp up the protection of our fundamental rights against states in a way that didn't previously exist under the original constitution, but once those rights were locked in the ones that were locked in can only be unlocked so to speak by a subsequent. institutional amendment all right, then there's no outside of article 5 for for rolling them back, but there is outside article 5 for adding new ones. i take it i'm at i suspect you're gonna resist that that account of it but it looks like that i wouldn't the 14th amendment is rights generous in recognition of an antebellum period consisting of systematic deprivations of not only cherished rights, but emergent rights that had proven themselves over the test of time to be central to individual liberty the 14th amendment rests on the premise that we are going to continually discover rights that prove their worth in securing people's liberty and their civic equality and it would be arbitrary to cut the process shorts in 1868. let me just give two examples one which is in the constitution and one which isn't the one that's in the constitution is the right of suffrage. contrary to others. we actually agree with the consensus of opinion that the right of suffrage was considered to be a political right and therefore was not a privilege or immunity at the time in 1868. but we also insist that it became a privilege or immunity of citizenship sometime after that there were there were avant-garde people who advocated who said that no it like charles sumner who said oh it is a privilege, but they were in the minority overwhelmingly republicans denied that it was a privilege of citizenship, but we insist that as a result of the 15th amendment and the 19th amendment it became a privilege of citizenship afterwards. that's an enumerated addition of rights an unenumerated right which i think also existed at the at that time but is not included in the civil rights act of 1866. no sound included in the first ten amendments that is for example the rite of parents to raise their own children the right of parents to direct the nurturing and the racing of their own children. i can hardly think of a more fundamental, right? that and yet that's not in the constitution anywhere it is a right that the supreme court has recognized to be a fundamental right but it also but it is one that has been enshrined in the positive law of the united states. probably since the beginning i would say for sure since the beginning and therefore is a privilege of citizenship and if you think that the only rights that you constitutional rights you have are the ones that are written into the text of the constitution then you have to believe that you don't have a right. you don't have a constitutional right to raise your own children. i think most people would and most conservatives. indeed most originalists. i think would rebel at that notion. i'm tempted to say something about broccoli, but i don't think that's the right direction. you know, that's not with me. no, i know i know in our last in our last minute or two i wanted to turn to maybe ask a question that maybe other law professors didn't ask it turns out. i'm just i'm just asking the expected questions from the faculty workshops. that's where i live. you know, that's what i do. so i'm you know, one of the things about parsing the language of the reconstruction amendments. i hope you see that i have such aberration for moving to the reconstruction amendments that great moral social transformation that evan talked about at the outset but one of the things one of the limits on that reconstruction language, is that all the words were now parsing are words that were produced by all male all white congresses? now and in the ratification process, no women we're voting in ratification. maybe i haven't fully checked maybe around the edges. there are a couple states, but essentially no women black voters in the south, you know, thanks to military reconstruction our participating in ratification voting there, but the words themselves. are you know essentially created by a really narrow set racially and gender segregated set these categories, you know are so salient and our public life today. what how should we think about as we try to broaden originalism away from the founding to include more inclusive reconstruction? how should we think about this continuing glaring limitation? and what does it mean for claws specific words sensitive readings of the greek instruction amendments? well, i have a couple things to say first of all and this is true of the founding document as well as the reconstruction amendments as well. and that is that the words of these texts they may have been written by a privilege set but they were written in words that everybody could understand there really is no evidence that women are african-american or even enslaved people would have read the words of the original constitution any differently than anyone else did or read the words to the declaration of independence any differently than anyone else did so the meaning of the constitution it's it's receivable. it's hypothetically possible that a different that individual communities might have given a different meaning to a provision in the text in which case you have an ambiguity that needs to be resolved by constitutional construction. you have an ambiguity that is not settled by the original public meeting. it's hypothetically possible that that happened. i don't know of any example of where that's been shown to happen in other words the meaning of the constitution is the same for everyone even though it was it was promoted by a few but here's where i think you know where randy and i think i have to break it because it turns out that law professors like to talk. and we've talked for a while now and i'm being told that we need to wrap up. okay, so i've opened up this invitation. it just just a moment, you know, i'd like to commend to our viewers this this really great this really great book provocative read and lots of really interesting stuff and hopefully randy and evan. i'll get to carry on the conversation here and elsewhere and happy happy reading. thanks randy. thanks. thanks, and thanks for your kind words. i really appreciate it. thanks so much, john really a pleasure. great. afterwards is available as a podcast to listen visit c-span.org slash podcasts or search c-span your podcast app. and watch this in all previous afterwards interviews at booktv.org. just click the afterwards button near the top of the page. weekends on c-span 2 are an intellectual feast every saturday american history tv documents america's story and on sundays book tv brings you the latest in nonfiction books and authors funding for c-span 2 comes from these television companies and more including buckeye broadband. you buckeye broadband along with these television companies support c-span 2 as a public service book tv continues now television for serious readers re