Randy E. Barnett Analyzes the Modern Use of the 14th Amendment


What has happened to the Fourteenth Amendment Anything Well the court has used it for good purposes eventually They got around to enforcing most all the rights that are in the first ten events we call the Bill of Rights against the state Only most recently they did the excessive fines clause but it wasn't until 2010 that the right to keep their arms was applied to the states via the Fourteenth Amendment So that's all good The problem is that they've limited themselves to rights that are in the text of the amendment of the first ten amendments So for example during this whole COVID thing if a COVID regulation restricted the free exercise of religion then the courts would step in But if it just restricted your right to pursue an occupation the right to earn a living which I would think is every bit as fundamental as the free exercise of religion Yeah the right thing They wouldn't step in The right to eat the right to work These are not considered to be protected rights as privileges or immunities of citizens as they should be as they were At the time the Fourteenth Amendment was enacted The right to pursue a lawful occupation was considered a fundamental right As is the right to raise your own children If you limit the protection of rights simply to the ones that happen to be listed in the first 8 amendments you don't include the right to pursue an occupation to support yourself You don't include the rights to raise your own children as you see fit These are fundamental rights that have long been enjoyed by citizens of the United States and which the court should protect against unreasonable regulation It doesn't mean that legislatures can't reasonably regulate in all of these areas including the First Amendment in the Second Amendment but it does mean that when they do that courts need to look at it skeptically which they did during COVID with respect to free exercise but they did not with respect to every other aspect of how the COVID regulations have affected our

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