Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.
Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment’s Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress.
Rather than emerging from the Comity Clause of Article IV, Section II, Clause 1, Lash argues that John Bingham and Jacob Howard, the two representatives who led congressional approval of the 14th Amendment, adjusted to criticism and pinned the Privileges or Immunities Clause on embodying the first 8 amendments and other enumerated rights of the Constitution. Nothing more was intended. In this way, these amendments were now barriers to state action. Rather than being a somewhat mysterious clause containing a seemingly limitless number of fundamental rights, Lash argues that the meaning of Privileges or Immunities is clear. As a result, incorporation of the first 8 amendments of the Bill of Rights, for the sake of political morality, correct history, and constitutional meaning, should happen through the Privileges or Immunities Clause of the 14th Amendment.