The Difference Narrows: A Reply to Kurt Lash

Randy E. Barnett* & Evan D. Bernick**

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain.

So, in this reply—with a few exceptions—we will avoid piling up any new evidence and will instead offer succinct counterpoints to his points. Above all, we wish to stress the narrowness of our disagreement—narrowness that is easily obscured by the presentation of one source after another. As we did in our original article, we start with our points of agreement—which Lash repeatedly characterizes as “concessions.”¹

Continue reading in the print edition . . .

© 2019 Randy E. Barnett & Evan D. Bernick. Individuals and nonprofit institutions may reproduce and distribute copies of this reply in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution.

**Law Clerk to the Honorable Diane S. Sykes, United States Court of Appeals for the Seventh Circuit.

1 See, e.g., Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame L. Rev. 591, 598 (2019).