The Difference Narrows: A Reply to Kurt Lash
![handle is hein.journals/tndl95 and id is 699 raw text is:
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 Immuni-
ties 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 imag-
ine 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.]
I. WHERE WE AGREE
A. The Accuracy of Our Summary of Lash's Thesis
We are pleased that, for all his many disagreements with our position,
Lash does not dispute the accuracy of our twenty-two-page summary of his
thesis. Summarizing his approach was no mean feat. It required weeks of
poring over his various articles and blog posts, along with his book. To the
end of getting his views right, we shared an early draft of our paper with him
to offer him a chance to correct us. He did not offer any corrections then
and does not take issue with our account of his views now. So, readers can
© 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).](ViewImageLocal?handle=hein.journals/tndl95&div=19&collection=&method=preview&ext=.png&size=3)
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The Difference Narrows: A Reply to Kurt Lash
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