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A Further Reply from Damon Root on Economic Liberties and the Fourteenth Amendment
Michael Ramsey

Round four (or perhaps five, depending how you are counting) in the Lash-Root exchange: Damon Root, Why the 14th Amendment Protects Economic Liberty: A Further Reply to Conservative Law Professor Kurt Lash.  From the core of the argument (responding to Professor Lash's claim that the principal protection for economic liberties comes from the equal protection clause):

Let's return to the Civil Rights Act of 1866. It says that all persons born on American soil are citizens of the United States and that all U.S. citizens "of every race and color...shall have the same right, in every state and territory...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 and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens."

In Lash's view, this law is nothing more than an equal-protection measure. "Yes," he writes, "economic rights were protected—equally. But, no, they were not protected absolutely in the manner proposed by Root and the libertarians."

In other words, according to Lash, if a local government passed a law forbidding both blacks and whites from exercising their right to contract, such a law would be perfectly acceptable because it would not violate Lash's equality-only reading of the Civil Rights Act.

But that result would be absurd and the framers of the Civil Rights Act intended no such absurdity. The framers of the Civil Rights Act understood their legislation to serve a dual function, one that (A) protected fundamental rights from state abuse, and (B) required the states to guarantee equal treatment under the law to all citizens. In the words of Congressman James Wilson of Iowa, who sponsored and managed the Civil Rights Act in the House of Representatives, "citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law." (Emphasis added.)

So yes, the Civil Rights Act compelled the states to treat citizens equally regardless of race. But the act also compelled the states to respect "the great fundamental civil rights" mentioned or acknowledged in the act itself, such as the unenumerated economic right to make contracts.