Amendment XIV Citizenship Rights, Equal Protection, Apportionment, Civil War Debt

Passed by Congress June 13, 1866. Ratified July 9, 1868. The 14th Amendment changed a portion of Article I, Section 2. A portion of the 14th Amendment was changed by the 26th Amendment

A portion of the 14th Amendment was changed by the 26th Amendment, in regards to voting age

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States , or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Common Interpretation

The Citizenship Clause

The Citizenship Clause

By Akhil Reed Amar and John C. Harrison

The Constitution as originally adopted assumes that there is citizenship of the United States, and of the States, but does not explicitly provide a rule that tells whether anyone is a citizen of either (other than by giving Congress the power to naturalize).  Article III, which deals with the judiciary, gives the federal courts jurisdiction over controversies between citizens of different states, and thus assumes that some people have state citizenship.  Article II provides that only a natural-born citizen of the United States, or a citizen of the United States at the time of the adoption of the Constitution, may be President, and thus assumes that some people have national citizenship.  Nowhere, however, does the original Constitution lay down a clear and comprehensive rule about either kind of citizenship.

Prior to the Civil War, both state and national citizenship were the subjects of considerable controversy. State citizenship was especially important for practical purposes because it gave access to the jurisdiction of the federal courts that was based on diversity of citizenship, and because Article IV secured certain rights to the citizens of one state who were present in another. Different theories of citizenship were developed.  One view was that national citizenship was dependent on state citizenship, so that those who were state citizens under state law, and only those people, were citizens of the United States. This view raised a question concerning those born or resident in the District of Columbia, or in a federal territory. Another view was that federal law implicitly provided a rule that identified citizens of the United States, for example the rule of citizenship by birth.

A flashpoint of the controversy over citizenship was the Supreme Court’s decision in 1857 in Dred Scott v. Sandford. Dred Scott, who had been held as a slave, sued the executor of his former master’s estate under the state-citizenship diversity jurisdiction of the federal courts, seeking a determination that he had become free because his master had voluntarily taken him into free territory. Chief Justice Taney concluded that Scott was not a citizen of any state for purposes of the diversity jurisdiction because the Constitution implicitly limited both state and national citizenship on racial grounds, generally excluding individuals like Scott who were of African descent. This and other aspects of Taney’s analysis were strongly disputed by dissenters on the Court and others, who noted that free blacks had in fact been viewed as citizens by many states at the Founding.   

The Republican Party strongly opposed Dred Scott, in which the Chief Justice also stated that Congress could not bar slavery from the federal territories.  Excluding slavery from the territories was the Republicans’ principal goal, so the Chief Justice had implied that the party was organized for an unconstitutional purpose.  Led by Abraham Lincoln, the Republican Party won control of the White House in the election of 1860; and Lincoln’s Administration took the legal position, contra Taney, that free blacks were indeed American citizens.  At the end of the Civil War, the Republican Party was in control of the 39th Congress, which started its first session in December 1865, at a time when the former Confederate states had formed new, white-dominated governments that restricted the rights of former slaves. In response to those discriminatory laws (generally referred to as “Black Codes”), Congress passed the Civil Rights Act of 1866, which declared that all persons born or naturalized in the United States were citizens of the United States and the state in which they lived, thereby affirming a rule of citizenship by birth that did not depend on race. The only two textual exceptions to this rule of birthright citizenship were for American-born persons “subject to any foreign power” and for “Indians not taxed.” The Civil Rights Act also provided that all citizens of each state should have the same basic civil rights, including the right to hold property and make contracts, as were enjoyed by white citizens. The statute thus forbade race discrimination among citizens with respect to various legal benefits then called civil rights, but did not dictate the full content of all the rights of citizens. It did not address a distinct category of rights then referred to as “political rights” as contradistinguished from “civil rights.” Voting was a paradigmatic political right. Under widely prevailing views at the time, citizenship alone did not suffice to confer full and equal “political rights.” For example, under the Civil Right Act an American-born minor child or adult woman would clearly be a citizen, but would not therefore be automatically entitled to vote or exercise other “political rights.”  

The Fourteenth Amendment as drafted by the Joint Committee on Reconstruction in the spring of 1866 did not explicitly deal with citizenship. The Senate added what is now the first sentence, which grants both national and state citizenship in language quite similar to that of the Civil Rights statute, and the House agreed to the amendment. The basic principle of a federal rule of race-blind citizenship based on birth (and naturalization) was not in much dispute, although there was some debate about the restriction of the grant of citizenship to persons subject to the jurisdiction of the United States.

The Citizenship Clause has given rise to several controversies. Does the grant of citizenship bring with it any particular legal benefits, and if so what are they? Are these benefits, whatever they might be, to be defined and enforced exclusively by courts? Alternatively, does Congress have power to broadly supplement judicially-recognized benefits, thanks to the final sentence of the Fourteenth Amendment, which empowers Congress to “enforce, by appropriate legislation, the provisions of” the Amendment?  If there is such a congressional power, does it encompass authority to define rights of citizenship applicable against other private persons? And how should the first sentence’s restriction to persons “subject to the jurisdiction” of the United States be understood?  When adopted, that clause, which was drafted against the backdrop of the Civil Rights Act, was clearly understood to withhold birthright citizenship from the American-born children of foreign diplomats present in this country, because under international law diplomats and their families were largely immune from the legal control and the courts of their host country. The limiting clause also was understood not to grant birthright citizenship to various members of Indian tribes whose political relations with the United States limited its authority over the tribes’ members. The scope of the limiting clause is a matter of political controversy today. 

Matters of Debate

Akhil Reed Amar Akhil Reed Amar Sterling Professor of Law and Political Science at Yale University

America’s Equal Citizenship Clause By Akhil Reed Amar

The Fourteenth Amendment begins with a simple declaration: if you’re born in America under the American flag, you’re an American citizen.

Full Text

John C. Harrison John C. Harrison James Madison Distinguished Professor of Law, University of Virginia School of Law

Citizenship and the Rights of Citizens By John C. Harrison

The Citizenship Clause of the Fourteenth Amendment resolves a question that was hotly contested before the Civil War by providing the basic rule regarding acquisition of citizenship of the United States.

Full Text

Matters of Debate

America’s Equal Citizenship Clause By Akhil Reed Amar

America’s Equal Citizenship Clause

By Akhil Reed Amar

The Fourteenth Amendment begins with a simple declaration: if you’re born in America under the American flag, you’re an American citizen. It doesn’t matter if you’re male or female, rich or poor, black or white, gay or straight, the daughter of a president or the son of an undocumented/unauthorized/illegal immigrant. You’re a free and equal citizen. This principle of equal citizenship was at the core of the Republican vision for post-Civil War America. 

In 1857, the Supreme Court set out its own racialist vision of American identity in the infamous Dred Scott v. Sandford (1857) decision. There, Chief Justice Roger Brooke Taney declared that a black man generally couldn’t be a United States citizen—that he had “no rights which the white man was bound to respect.” As a matter of history, many of Taney’s assertions were plainly false: As dissenting Justices and other critics of Taney made clear, free blacks were viewed as citizens in several states at the time of the Founding; indeed, some blacks had even fought in Washington’s army, and had in several states been eligible to vote on the Constitution itself in 1787-88.The newly formed Republican Party set out to reverse various aspects of Dred Scott—most pressingly, the decision’s ruling that Congress could not generally prohibit slavery in federal territories. 

Candidate Abraham Lincoln campaigned against the decision in 1858 and 1860. Then, under President Abraham Lincoln, Attorney General Edward Bates took on Dred Scott in an 1862 legal opinion arguing that free blacks generally could be U.S. citizens. Finally, the Republican Congress enshrined the principle of birthright citizenship in America’s first major civil rights law, the Civil Rights Act of 1866. Two months later, Congress included birthright citizenship in its proposed Fourteenth Amendment.

At the simplest level, the Fourteenth Amendment’s Citizenship Clause was meant to repudiate Dred Scott and place the Civil Rights Act of 1866 on a firm legal foundation. However, it was also meant to root post-Civil War America—America’s Second Founding—in an inspiring Lincolnian reinterpretation of one of our nation’s Founding truths, that we’re all created/born free and equal.

Let’s begin with the text of the Citizenship Clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” While the Citizenship Clause was directed at the specific evils of both the Dred Scott decision and the Black Codes, the Clause’s text doesn’t protect only African Americans. For instance, while the Fifteenth Amendment explicitly mentions race, the Fourteenth Amendment’s text is more capacious—speaking not just of African Americans, but of “[a]ll persons.” This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.

The Citizenship Clause also marked an important shift in American identity. Prior to the ratification of the Fourteenth Amendment, the Constitution didn’t provide a set definition of citizenship. This allowed states to set their own ground rules, with many states reserving state citizenship for whites and making African Americans—even those born on a state’s own soil—mere “inhabitants.” In turn, these state-by-state determinations often defined who would become a U.S. citizen. The Citizenship Clause flipped this troubling script. Rather than deferring to the racist citizenship determinations of individual states, the Fourteenth Amendment made Americans citizens of the nation, first and foremost, and established a simple national rule for citizenship: If you’re born in America under our flag, you’re a U.S. citizen. Furthermore, under the Fourteenth Amendment, American citizenship brought with it a set of fundamental “privileges or immunities”—rights protected not just against abuses by the federal government (as with the original Bill of Rights), but also against abuses by one’s own state. (This aspect of the Clause was elaborated and clarified by the next sentence of the Amendment, which includes express language prohibiting states from abridging the “privileges” and “immunities” of American “citizens.”)

Finally, properly understood, the Citizenship Clause also offers interpreters a way around one of the most vexing challenges of modern constitutional law, the so-called “state action doctrine.” Under this doctrine, the Fourteenth Amendment’s key protections—equal protection of the laws, privileges or immunities of U.S. citizenship, and due process of law—reach only the actions of state governments, not those of private actors. During Reconstruction, the Supreme Court used this doctrine to unduly limit Congress’s ability to attack acts of private discrimination—and private violence—in the South. 

While the Fourteenth Amendment’s second sentence (“No state shall . . .”) can plausibly be read as creating rights only against state governments, the Citizenship Clause’s text sweeps more broadly. By its own terms, the Citizenship Clause is not expressly limited to the relationship between citizens and governments; it can also be understood as having implications for the relationship between citizens themselves in certain situations—for example, in certain prominent public spaces, even if these public spaces are not, strictly speaking, owned by the government. This opening sentence of the Fourteenth Amendment must be read in connection with the Amendment’s closing sentence, which grants Congress sweeping power to “enforce” all the Amendment’s provisions. Together, these two sentences give Congress the power to address private actions that undermine the Amendment’s command of equal citizenship. (While the Citizenship Clause doesn’t explicitly mention “equality,” it does imply it—declaring those “born” on American soil free and equal citizens. This reading is reinforced by the text of the Civil Rights Act of 1866—which spoke of “full and equal” civil rights for all citizens—and a later Supreme Court majority opinion (authored by the towering Justice John Marshall Harlan, the great dissenter in Plessy v. Ferguson (1896)) reading the Citizenship Clause as guaranteeing that “[a]ll citizens are equal before the law.”

A key word in the Fourteenth Amendment’s opening sentence is the word “born”—a word undergirding the key concept of birth equality. Under this equal-birth principle, the government may regulate its citizens in numerous ways using all sorts of legal distinctions—for example, between wage earners and dividend earners in the tax code, or between opticians and ophthalmologists in medical regulations. But government may not penalize or degrade anyone born on American soil simply because he or she was born the wrong way—because, say, he was born black or she was born female, or he was born out of wedlock, or she was born gay. This birth-equality principle stood in sharp contrast with the infamous Black Codes that many ex-Confederate states had enacted after the Civil War. These laws—the paradigm evils that the Fourteenth Amendment was designed to eradicate—degraded African Americans simply because they were born with dark skin, reducing them to the status of second-class citizens. Furthermore, Dred Scott itself situated citizenship in a broader context—defined not just by official state action, but also social meaning and practice. According to Dred Scott, African Americans couldn’t be citizens because whites disrespected blacks— not just through government action, but also because private custom and belief reinforced the idea that African Americans were “beings of an inferior order, and altogether unfit to associate with the white race.”

The Citizenship Clause—designed to strike out against both the Black Codes and Dred Scott—gave Congress the power to overturn this order, not just by going after the actions of state governments, but also through passing laws that affirmed that African Americans were free and equal citizens. To be clear, there were limits to the Clause’s reach. For instance, Congress couldn’t force whites to invite African Americans to private dinners or promote political equality. It didn’t cover these social and political rights that lay outside the domain of citizenship pure and simple. However, Congress could protect the full and equal citizenship of African Americans by shielding them from racially motivated private violence; likewise, Congress could go after powerful private systems of pervasive racial exclusion, including in privately owned yet distinctly “public” places like hotels, theaters, trains, and steamships. The Reconstruction Congress passed several laws along these lines; however, the Supreme Court struck down some of them, reading the Fourteenth Amendment as only reaching actions by state governments. These Supreme Court decisions—including the infamous 1883 Civil Rights Cases—were inconsistent with the Fourteenth Amendment’s text and history.

Another Perspective

This essay is part of a discussion about the Citizenship Clause with John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law. Read the full discussion here.

In the end, the Citizenship Clause is one of the richest single sentences in the entire Constitution, rivalling the Preamble in both theoretical depth and breadth. Here are just some of the many extraordinary things done by this extraordinary sentence: 

  • First, by overruling the infamous and erroneous Dred Scott case, the sentence reminds us that the Court has not been infallible in American constitutional history and that the ultimate “supreme court” in our system is not a tiny knot of jurists in our national capital, but rather, the sovereign citizenry itself—We, the People, who retain the right to make amends for the sins of our fathers and our judges. 
  • Second, the sentence establishes the priority of national citizenship; no matter what a state might say, anyone born in America under the American flag is an American. 
  • Third, the sentence requires a state to treat any American who chooses to reside in that state as a full and equal state citizen. The sentence thus makes emphatically clear that there is a right of any American to move to and remain in any state, no matter what a state might prefer.
  • Fourth, the sentence in tandem with the sentence that follows affirms that an American citizen is entitled to all the basic civil rights—the privileges and immunities—of citizenship against both state and federal governments. For example, thanks to this first sentence (which does not open with the words “No state shall” as does the next sentence) the right of racial equality of all citizens is a right that applies against federal officialdom as well as against states. (This is what lawyers and judges sometimes refer to as “reverse incorporation” of the Fourteenth Amendment’s equality principle against the federal government.)
  • Fifth, the Fourteenth Amendment’s first sentence in tandem with the Fourteenth Amendment’s last sentence gives Congress broad power to define and protect various badges of citizenship against both governments and powerful private actors. (Note that the first sentence—unlike the next sentence of the Fourteenth Amendment, which begins with the words “No state shall”—does not expressly limit itself to declaring individual rights against state governments. )
  • Sixth, the Amendment constitutionalizes Lincoln’s reinterpretation of Jefferson by making clear that Americans are created equal—born equal, in the key language of this key sentence. 
  • Seventh, and related, this birth equality idea clearly condemns a racial caste system in which light-skinned children are born lords and dark-skinned children are born serfs. 
  • Eighth, the sentence goes far beyond race by condemning all sorts of other birth-based caste-like systems improperly exalting some and improperly degrading others because of birth status. The sentence thus explains why certain types of birth-based governmental discrimination are suspect (laws based on race or sex or sexual orientation or illegitimacy) whereas most other kinds of governmental line-drawing (say, between opticians and ophthalmologists) should not be viewed with comparable skepticism. (The bland language of “equal protection” in the Amendment’s next sentence is less helpful in distinguishing among different kinds of governmental line-drawing—less helpful in showing readers why, say, the non-birth-based lines drawn in our tax code between wage income and rental income are categorically different from the racialized birth-based lines that were drawn in the infamous Black Codes.)
  • Ninth, the sentence focuses our attention on place, not parentage. Unlike the law of many European countries, in America the key issue of constitutional citizenship is based on the law of the soil, not the law of blood. The issue is where one was born, not to whom.
  • Tenth and relatedly, the sentence resoundingly affirms that constitutional birthright citizenship does not depend on the immigration status of one’s biological parents. Anyone born in America under the American flag is a citizen, even if his parents are not citizens and indeed even if his parents are not here legally. (Although several prominent political figures, including President Donald Trump, have recently sought to argue that the Fourteenth Amendment is somehow unclear or unsettled on this point, the Constitution’s text, enactment history, and subsequent elaboration by the Supreme Court are all squarely against Trumpists on this issue: In the 1860s, surely all American-born children of slaves were meant to be covered by the Amendment’s citizenship clause, so as to completely repudiate the infamous Dred Scott case. Yet Reconstruction Republicans in Congress doubtless were aware that some antebellum slaves had been smuggled into America illegally, in violation of various nineteenth congressional laws prohibiting transatlantic slave importation. This stubborn fact about the children of certain “illegal aliens” in the 1860s strongly suggests that American-born children of “illegal aliens” today are likewise birthright American citizens, regardless of the deficient immigration status of their parents. In multiple cases decided in the late nineteenth and the late twentieth century, the Supreme Court has recognized only three narrow exceptions to birthright citizenship: diplomatic children, tribal Indians, and invading armies. The language and logic of these cases clearly suggest that children of “illegal aliens” are indeed birthright citizens; and the broad legislative backdrop of the Amendment and its intended application to all American-born slave children provide compelling support for this conclusion.)

Thus, every generation, the constitutional clock resets; regardless of the lapses of a person’s parents, the sins of the fathers and mothers are not visited upon the children. To repeat: Anyone born on American soil under the American flag is an American.

Akhil Reed Amar Akhil Reed Amar Sterling Professor of Law and Political Science at Yale University

Matters of Debate

Citizenship and the Rights of Citizens By John C. Harrison

Citizenship and the Rights of Citizens

By John C. Harrison

The Citizenship Clause of the Fourteenth Amendment resolves a question that was hotly contested before the Civil War by providing the basic rule regarding acquisition of citizenship of the United States. It also confers state citizenship on national citizens who reside in a state. The Clause identifies individuals who hold national and state citizenship. It does not identify the legal benefits that come with that status. Before the Amendment, the Constitution recognized both state and national citizenship. The Amendment did not create either citizenship, and does not address the rights that come with them.

The Clause does leave open some questions concerning acquisition of state and national citizenship. It does not say whether a state may confer state citizenship on anyone who is not a citizen of the United States. It also does not say whether national citizenship may be acquired other than through birth in the United States or naturalization, a question that may be important in determining who is a natural born citizen of the United States and so eligible to be President. If someone who becomes a citizen through naturalization is not a natural born citizen, then persons born outside the United States can be natural born citizens only if national citizenship may be acquired in a way not mentioned in the Amendment.

Another Perspective

This essay is part of a discussion about the Citizenship Clause with Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University. Read the full discussion here.

Persons born or naturalized in the United States are citizens only if they are subject to its jurisdiction. That exception applies to individuals present in the United States over whom the United States does not exercise full territorial prescriptive or adjudicatory jurisdiction because of its relations with another sovereign or quasi-sovereign such as an Indian tribe. (Prescriptive jurisdiction is a sovereign’s authority to prescribe legal rules. Adjudicatory jurisdiction is the authority of a sovereign’s courts to make persons parties to cases before them.) When the Fourteenth Amendment was adopted, the leading examples of people present in the United States but not fully subject to its territorial jurisdiction were foreign diplomats, who enjoyed diplomatic immunity under international law, and those members of Indian tribes whose relations with their tribes limited the authority the United States exercised with respect to them. The debates in Congress on the exception from the citizenship rule focused mainly on members of Indian tribes who fell into that category.

John C. Harrison John C. Harrison James Madison Distinguished Professor of Law, University of Virginia School of Law

Common Interpretation

The Fourteenth Amendment Due Process Clause

The Fourteenth Amendment Due Process Clause

By Nathan S. Chapman and Kenji Yoshino

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. Consider the following rights that the Clause guarantees against the states:

  • procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance;
  • individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections;
  • fundamental rights that are not specifically enumerated elsewhere in the Constitution, including the right to marry, the right to use contraception, and the right to abortion.

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) “procedural due process;” (2) the individual rights listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due process.”

Procedural Due Process

“Procedural due process” concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes “life, liberty, or property”?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of “life, liberty, and property,” perhaps the most notable development is the Court’s expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly, the Court found that some governmental benefits—in that case, welfare benefits—amount to “property” with due process protections. Courts evaluate the procedure for depriving someone of a “new property” right by considering: (1) the nature of the property right; (2) the adequacy of the procedure compared to other procedures; and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

“Incorporation” of the Bill of Rights Against the States

The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause “incorporates” many—but not all—of the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is “incorporated” against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not “incorporated” against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow). As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes, the Fifth Amendment’s right to a grand jury trial, the Seventh Amendment’s right to jury trial in civil cases, and the Eighth Amendment’s prohibition on excessive fines.

Substantive Due Process

The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

The Court’s decision to protect unenumerated rights through the Due Process Clause is a little puzzling. The idea of unenumerated rights is not strange—the Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.” The most natural textual source for those rights, however, is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the “privileges and immunities” of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.

The “substantive due process” jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution.

In the early decades of the twentieth century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers on the ground that they violated those workers’ “freedom of contract,” even though this freedom is not specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York is a symbol of this “economic substantive due process,” and is now widely reviled as an instance of judicial activism. When the Court repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).

Substantive due process, however, had a renaissance in the mid-twentieth century. In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their “right to privacy.” Griswold v. Connecticut. Like the “freedom of contract,” the “right to privacy” is not explicitly guaranteed in the Constitution. However, the Court found that unlike the “freedom of contract,” the “right to privacy” may be inferred from the penumbras—or shadowy edges—of rights that are enumerated, such as the First Amendment’s right to assembly, the Third Amendment’s right to be free from quartering soldiers during peacetime, and the Fourth Amendment’s right to be free from unreasonable searches of the home. The “penumbra” theory allowed the Court to reinvigorate substantive due process jurisprudence.

In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).

The proper methodology for determining which rights should be protected under substantive due process has been hotly contested. In 1961, Justice Harlan wrote an influential dissent in Poe v. Ullman, maintaining that the project of discerning such rights “has not been reduced to any formula,” but must be left to case-by-case adjudication. In 1997, the Court suggested an alternative methodology that was more restrictive: such rights would need to be “carefully descri[bed]” and, under that description, “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997). However, in recognizing a right to same-sex marriage in 2015, the Court not only limited that methodology, but also positively cited the Poe dissent. Obergefell v. Hodges. The Court’s approach in future cases remains unclear.

Matters of Debate

Nathan S. Chapman Nathan S. Chapman Assistant Professor of Law, University of Georgia School of Law

Substantive Due Process: Text, History, Experience by Nathan S. Chapman

The most controversial due process doctrine is “substantive due process.” The doctrine has little support in the text and history of the Constitution, and it has long ignited political debate.

Full Text

Kenji Yoshino Kenji Yoshino Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law

Not Whether But How: Discerning New Constitutional Freedoms by Kenji Yoshino

One of the most vibrant and contentious debates relating to the Due Process Clause concerns the “substantive due process” jurisprudence.

Full Text

Matters of Debate

Substantive Due Process: Text, History, Experience by Nathan S. Chapman

Substantive Due Process: Text, History, Experience

By Nathan S. Chapman

Substantive Due Process

The most controversial due process doctrine is “substantive due process.” The doctrine has little support in the text and history of the Constitution, and it has long ignited political debate. For good reason: substantive due process replaces popular sovereignty with the views of unelected Supreme Court justices.

The Constitution itself is ordinarily the source of constitutional rights. Its provisions are the fruit of political debate and compromise, the clearest evidence of the People’s will. Not all constitutional provisions, of course, are perfectly clear. To understand vague terms, courts usually examine prior history, other constitutional provisions, and subsequent practice. None of these offer strong support for the rights protected by substantive due process.

First, those rights find little support in the constitutional text. The Due Process Clause guarantees “due process of law” before the government may deprive someone of “life, liberty, or property.” In other words, the Clause does not prohibit the government from depriving someone of “substantive” rights such as life, liberty, or property; it simply requires that the government follow the law. One scholar has therefore described “substantive due process” as an oxymoron, akin to “green pastel redness.”

Nor does the Bill of Rights, incorporated into the Fourteenth Amendment Due Process Clause, provide textual support for substantive due process. The most that can be said is that the doctrine arises from the “penumbras” or “emanations” of the “specific guarantees in the Bill of Rights” – not from those “specific guarantees” themselves. Griswold v. Connecticut (1965).

One might try to solve this textual deficit by locating substantive due process rights in another provision of the Fourteenth Amendment, such as the Privilege or Immunities Clause or the Equal Protection Clause. But this would raise another set of textual and historical difficulties.

Second, history provides little support for substantive due process. Until the late nineteenth century, no court held that due process protected substantive rights. The first Supreme Court opinion to even suggest this was The Dred Scott Case (1857). Scott, a slave, argued that he was free because his owner had taken him to territory where slavery was banned. Chief Justice Taney notoriously replied that declaring Scott to be free would deprive his owner of property without due process of law. The Republicans who enacted the Fourteenth Amendment meant to repudiate that notion, not to apply it against the states. Aside from The Dred Scott Case, there is little historical evidence that courts or Congress thought due process limited the substance of legislation.

Third, substantive due process has consistently generated political controversy. The Court first applied the doctrine at the turn of the twentieth century to invalidate state labor and wage regulations in the name of “freedom of contract,” a notion mentioned nowhere in the Constitution. Those who opposed the labor union movement supported the doctrine. But it became increasingly unpopular with progressives and mainstream Americans during the Depression, when the Court used it to thwart New Deal regulations.

The national dispute ended in a showdown. President Franklin Roosevelt pressured the Supreme Court to abandon substantive due process. In response, a pivotal justice changed sides, and the Court ultimately repudiated the doctrine. This episode illustrates how hard it is to change the Court’s constitutional jurisprudence – even when it flies in the face of the text approved by the People.

Another Perspective

This essay is part of a discussion about the Fourteenth Amendment's Due Process Clause with Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law. Read the full discussion here.

The contemporary version of substantive due process has likewise upended democratic politics. The most obvious example is abortion. By putting the issue beyond the reach of ordinary politics, in Roe v. Wade (1973), the Court precipitated the culture war, the re-alignment of the political parties, and the politicization of Supreme Court appointments.

Some defend substantive due process on the ground that it protects fundamental rights. But Americans disagree about what should count as a fundamental right, and many think the fairest way to resolve that disagreement is through political debate. Such debates are not futile; they have resulted in a number of amendments that do expressly protect fundamental rights, such as the freedoms of speech, assembly, and religion, and the right to vote.

Perhaps the best argument for maintaining substantive due process is that the Court has a duty to follow precedent. On one hand, sometimes people rely on past decisions; enforcing those decisions allows people to plan their lives and move on. On the other hand, the Court’s chief duty is to enforce the law enacted by the People, not to perpetuate doctrines of its own making.

Given substantive due process’s sordid history, it is unsurprising that justices continue to disagree about it. Some current justices would extend it; some would scale it back; and others would drop it entirely. Regardless of the Court’s future approach, one thing seems certain: substantive due process will continue to foment political controversy.

Incorporation of the Bill of Rights

By contrast, the incorporation of the Bill of Rights against the states—applying some of its provision to state governments as well as the federal government—is far less controversial. Although the text and history of the Due Process Clause may not support the incorporation of every provision of the Bill of Rights, between the Due Process Clause and the other clauses of the Fourteenth Amendment, incorporation is on solid ground.

Some continue to urge the Court to apply all of the provisions of the Bill of Rights against the states. Conversely, others argue that applying some provisions to the states was a mistake.

In particular, some scholars and judges argue that it makes little sense to apply the Establishment Clause of the First Amendment to the states. The Establishment Clause originally prohibited Congress not only from establishing a federal religion, but also from interfering in a state establishment. In part, then, the Clause protected state establishments; it didn’t prohibit them.

Despite this history, the Court is unlikely to reverse course. Prohibiting state religious establishments has broad political support, and it reinforces the religious liberty secured against the states by the incorporation of the Free Exercise Clause.

Nathan S. Chapman Nathan S. Chapman Assistant Professor of Law, University of Georgia School of Law

Matters of Debate

Not Whether But How: Discerning New Constitutional Freedoms by Kenji Yoshino

Not Whether But How: Discerning New Constitutional Freedoms

By Kenji Yoshino

One of the most vibrant and contentious debates relating to the Due Process Clause concerns the “substantive due process” jurisprudence. Under this area of law, the Supreme Court has protected rights not specifically listed in the Constitution. Currently, such unenumerated rights include the right to direct the education and upbringing of one’s children, the right to procreate, the right to bodily integrity, the right to use contraception, the right to marry, the right to abortion, and the right to sexual intimacy. For well over a century, the Court has grappled with how to discern such rights. This controversy continues to this day, and the Court’s 2015 decision in this area—Obergefell v. Hodges—breaks new ground in that storied debate.

The debate about whether the Court should be in the business of recognizing such rights has raised legitimate concerns on both sides. On the one hand, when the Court strikes down a state law (for example, a prohibition on same sex marriages) because it violates a right that is not specifically mentioned in the Constitution, the Court runs the risk of facing amplified charges of “judicial activism.” It is one thing when the Court strikes down a legislative enactment based on some specific right spelled out in the Constitution. It is quite another thing when it invalidates such an enactment based on a right that has no textual basis within the Constitution. The fear is that five Justices on the United States Supreme Court will make law for the entire nation based solely on their personal policy preferences, given that they have no text to guide or constrain them. As the Court itself once said, it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights (1992).

On the other hand, the idea that the Constitution only protects rights that are specifically mentioned is also deeply problematic. Even the staunchest textualist must account for the Ninth Amendment, which states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparate others retained by the people.” As such, the Amendment provides a textual warrant for finding textually unenumerated rights in the Constitution. The ethos behind the Ninth Amendment also seems sound. No Constitution could purport to enumerate every single right that a people might deem fundamental. On natural law or other grounds, most individuals would probably bristle at the idea that they lacked a constitutional right to marry. Finally, as a purely doctrinal matter, over a century of precedent guarantees such unenumerated rights under the Fourteenth Amendment’s Due Process Clause. Few if any Justices on the current Court appear to take the position that all the rights listed above should be rolled back entirely.

The live debate, then, is not whether to recognize unenumerated rights, but how to do so. While a full discussion of the methodological debate cannot be elaborated here, we can at least contrast two major approaches.

In 1997, the Court issued a landmark decision that set forth a more restrictive methodology. The issue in Washington v. Glucksberg was whether an individual had the right to physician-assisted suicide. The Court rejected the existence of any such right. In doing so, it articulated a general two-part test for how such rights should be found. First, it observed that the right had to be “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.” Second, it required a “careful description” of the liberty interest at issue. The first restriction—that a right must be “deeply rooted” in history–ensured that due process would be, as one scholar has put it, “backward-looking” in order to “safeguard[] against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.” The second restriction—a “careful description” of the liberty interest at stake—ensured that jurists would not be able to claim that a novel right was “deeply rooted” in history by describing the right at  a higher level of generality. For instance, arguing that while physician-assisted suicide had not been traditionally protected, the “right to control one’s own body” was. (As this example suggests, the level of generality at which one casts a particular right will often determine whether a tradition supports it.)

In 2015, however, Obergefell v. Hodges dramatically changed the substantive due process methodology. Obergefell will probably be best known—now and in the future—as the case that held that same-sex couples had the right to marry. However, its more overarching contribution to constitutional law may well lie in its seeming wholesale revision of the Glucksberg test. After all, under Glucksberg, it was clear that same-sex marriage was not “deeply rooted in this Nation’s traditions and history.” And if the right had to be specifically described in order to be protected, then the “right to marry” is too general to protect the “right to same-sex marriage.”  So how did Obergefell reach its result?

Another Perspective

This essay is part of a discussion about the Fourteenth Amendment's Due Process Clause with Nathan S. Chapman, Assistant Professor of Law, University of Georgia School of Law. Read the full discussion here.

The answer was, as Chief Justice Roberts noted in dissent, that Obergefell “effectively overrule[d]” Glucksberg. First, it put an end to the idea that the due process methodology was backward looking. Amplifying a comment he had made in a 2003 case, Justice Kennedy’s majority opinion observed that “[t]he nature of injustice is that we may not always see it in our own times.” He elaborated: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the freedom of all persons to enjoy liberty as we learn its meaning.” Put differently, Justice Kennedy observed that the refusal of the Framers of the Fourteenth Amendment to specify which liberties were protected meant that they intended to leave the meaning of that concept to the judgment of subsequent generations. In doing so, he struck the shackles of history from the due process analysis.

Similarly, Obergefell also challenged—although less categorically—the notion that the Court had to offer a “careful description” of the right. Justice Kennedy observed that while the “careful description” methodology “may have been appropriate” for the right at issue in Glucksberg (physician-assisted suicide), “it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” He noted that when interracial couples or prisoners sought to marry, the Court did not construe the right as the right of interracial couples to marry or the right of prisoners to marry, but simply as the right to marry. He simply rejected the idea that the Court should not climb up the ladder of generality in analyzing the right presented. And while he explicitly declined to overrule Glucksberg on this point, he also did not offer a principled distinction between why the rights of marriage and intimacy might differ from other rights.

Obergefell represented a clear victory for those who believe, as many progressives do, in a more expansive vision of substantive due process jurisprudence. At the same time, it did not announce unlimited discretion for the judiciary in this area. Instead, it endorsed the approach taken in a canonical dissent by Justice Harlan in the 1961 case of Poe v. Ullman. The Poe dissent rejected any formulaic approach to substantive due process in favor of a more open-ended common law approach whereby courts addresses questions about fundamental rights case-by-case, striving in each decision to balance the Constitution’s respect for individual liberty and the demands of organized society. It remains to be seen what future rights such an approach might yield.

Kenji Yoshino Kenji Yoshino Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law

Common Interpretation

The Equal Protection Clause

The Equal Protection Clause

By Brian Fitzpatrick and Theodore M. Shaw

Ratified as it was after the Civil War in 1868, there is little doubt what the Equal Protection Clause was intended to do: stop states from discriminating against blacks. But the text of the Clause is worded very broadly and it has come a long way from its original purpose. For example, despite its reference to “state[s],” the Clause has been read into the Fifth Amendment to prevent the federal government from discriminating as well.

Near the end of the nineteenth century, the Court considered whether racial segregation by the government violated the Constitution. If people were separated into different facilities by race, but those facilities were purportedly equally suitable, did that constitute discrimination? Historians have debated whether the Fourteenth Amendment was intended to end such segregation, but in Plessy v. Ferguson (1896), the Court ruled by a 7-1 vote that so-called “separate but equal” facilities (in that case, train cars) for blacks and whites did not violate the Equal Protection Clause. The decision cemented into place racist Jim Crow-era laws. In a famous dissent, Justice John Marshall Harlan disagreed, stating “[o]ur Constitution is color-blind . . . .”  Plessy remained the law of the land until 1954, when it was overruled in Brown v. Board of Education. The Supreme Court unanimously overruled the reasoning of Plessy and held that separate schools for blacks and whites violated the Equal Protection Clause. Brown was a decisive turning point in a decades-long struggle to dismantle governmentally imposed segregation, not only in schools but throughout American society. Brown was a turning point, but it was not the end of the struggle. For example, it was not until 1967 in Loving v. Virginia that the Supreme Court held that laws prohibiting interracial marriages violated Equal Protection.

Although the original purpose was to protect blacks from discrimination, the broad wording has led  the Supreme Court to hold that all racial discrimination (including against whites, Hispanics, Asians, and Native Americans) is constitutionally suspect. These holdings have led to an ongoing debate for the last several decades over whether it is unconstitutional for governments to consider the race of blacks, Hispanics, and Native Americans as a positive factor in university admissions, employment, and government contracting. We will address this question in our separate statements.

The Supreme Court has also used the Equal Protection Clause to prohibit discrimination on other bases besides race. Most laws are assessed under so-called “rational basis scrutiny.” Here, any plausible and legitimate reason for the discrimination is sufficient to render it constitutional. But laws that rely on so-called “suspect classifications” are assessed under “heightened scrutiny.” Here, the government must have important or compelling reasons to justify the discrimination, and the discrimination must be carefully tailored to serve those reasons. What types of classifications are “suspect”? In light of the history of the Equal Protection Clause, it is no surprise that race and national origin are suspect classifications. But the Court has also held that gender, immigration status, and wedlock status at birth qualify as suspect classifications. The Court has rejected arguments that age and poverty should be elevated to suspect classifications.

One of the greatest controversies regarding the Equal Protection Clause today is whether the Court should find that sexual orientation is a suspect classification. In its recent same-sex marriage opinion, Obergefell v. Hodges (2015), the Court suggested that discrimination against gays and lesbians can violate the Equal Protection Clause. But the Court did not decide what level of scrutiny should apply, leaving this question for another day.

Like many constitutional provisions, the Equal Protection Clause continues to be in flux.

Matters of Debate

Brian Fitzpatrick Brian Fitzpatrick Professor of Law, Vanderbilt Law School

The Future of Racial Preferences by Brian Fitzpatrick

As we mentioned in the joint statement, one of the most contentious questions under the Equal Protection Clause has been whether programs known as “affirmative action” or “racial preferences” are constitutional.

Full Text

Theodore M. Shaw Theodore M. Shaw Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights, University of North Carolina School of Law

The Unfinished Work of the Equal Protection Clause by Theodore M. Shaw

At the core of the debate on the Equal Protection Clause’s application to race is the question of symmetry.

Full Text

Matters of Debate

The Future of Racial Preferences by Brian Fitzpatrick

The Future of Racial Preferences

By Brian Fitzpatrick

As we mentioned in the joint statement, one of the most contentious questions under the Equal Protection Clause has been whether programs known as “affirmative action” or “racial preferences” are constitutional. Racial preference programs give a leg up to blacks, Hispanics, and Native Americans in college admissions, employment, and winning government contracts. They have been constitutionally contentious ever since they began in the 1960s, and many people believe that the Supreme Court is poised to end these programs in the near future.

Although well-intended to atone for past racial discrimination and to spread opportunity more equally throughout society, many people believe that preference programs are morally questionable, have bred racial tensions, and stigmatize the people they are intended to help. One might ask what relevance moral and empirical arguments like these have to the meaning of the Equal Protection Clause, but arguments like these have influenced the Supreme Court’s decisions in this area much more than arguments over the original understanding of the Equal Protection Clause (on which historians disagree). Indeed, new empirical arguments are the reason why many people believe racial preference programs may not survive court challenges for much longer.

First, some people believe that the individuals who take opportunities on account of racial preferences are actually wealthier than those who are displaced. This has undermined the notion that racial preferences spread opportunity more equally throughout society. Second, it has become increasingly clear that the racial group that suffers the most from many preference programs—especially those in college admissions—is not whites, but Asians. Because Asians, too, suffered from a great deal of past discrimination in this county, this development has weakened the notion that preference programs atone for past discrimination. Finally, there are now sophisticated empirical studies that suggest that preference programs actually constrict opportunities for their intended beneficiaries; some studies, for example, suggest that there are fewer black lawyers today because of preferences for blacks in law school admissions. Other scholars disagree with these studies, but the studies have nonetheless raised many questions about whether preference programs accomplish even their most basic purpose of expanding opportunities for blacks, Hispanics, and Native Americans.

Some proponents of racial preferences have advocated so-called “race neutral” affirmative action in the event the Supreme Court eventually prohibits racial preferences.  Indeed, some universities have turned to race-neutral affirmative action after lower courts struck down their preference programs. Under race-neutral affirmative action, governments use preferences for characteristics that correlate with race instead of race itself to try to increase opportunities for blacks, Hispanics, and Native Americans. Thus, for example, some state universities give preferences to applicants who live in certain areas that are heavily comprised by those racial groups (but whites or Asians who live in these areas receive the preferences, too). Many people assume these programs are constitutional because they do not rely on racial classifications but on geographic classifications. But the Supreme Court has said in many cases that non-racial classifications that are motivated by racial discrimination and have the effect of racial discrimination are subjected to the same heightened scrutiny as racial classifications. Thus, it is not clear whether race-neutral affirmative action will be any more constitutional than racial preference programs.

What is clear is that this will be an area of very contentious litigation for the foreseeable future.

Brian Fitzpatrick Brian Fitzpatrick Professor of Law, Vanderbilt Law School

Matters of Debate

The Unfinished Work of the Equal Protection Clause by Theodore M. Shaw

The Unfinished Work of the Equal Protection Clause

By Theodore M. Shaw

At the core of the debate on the Equal Protection Clause’s application to race is the question of symmetry. Some people oppose race-conscious measures designed to address racial discrimination and inequality. For example, some individuals oppose efforts by schools and employers to consider race with the goal of enrolling or hiring more minority applicants. In arguing that these measures violate the Fourteenth Amendment, opponents equate such efforts with invidious discrimination rooted in belief in racial inferiority and superiority.

In 1978, in  Regents of the University of California v. Bakke, the Supreme Court found that race-conscious measures designed to address the effects of discrimination were as presumptively unconstitutional as was discrimination rooted in racial antipathy and the belief in racial inferiority. The Court further recognized what it called “societal discrimination”, i.e., a category of discrimination, however lamentable, for which no one was responsible and for which there is no remedy. Before Bakke, racial equality efforts had been justified based on a general imperative to overcome the lasting effects of historic racial discrimination and subordination. Bakke and subsequent cases effectively limited this remedial justification imperative to individual cases of proven discrimination. It threw the remedial rationale under the bus, leaving vast manifestations of racial inequality beyond the reach of law.

Still, Justice Powell proffered an alternative ground for race-conscious admissions by colleges and universities. His opinion in Bakke recognizing “diversity” as a compelling governmental interest bridged a divided Court. It rested diversity in universities’ First Amendment-based interest in academic freedom, rather than in the Fourteenth Amendment Equal Protection-based interest of African Americans and other people of color in educational opportunity at institutions from which they had long been excluded. In spite of the Fourteenth Amendment’s original purposes—and notwithstanding continued racial inequality in higher education—a majority of the Bakke Court held that the Amendment had no special meaning for African Americans.

In the years following Bakke, students of color were admitted to selective colleges and universities in modest numbers, even if Bakke’s viability was under continued criticism and attack in social discourse as well as in the courts. In 2003, Grutter v. Bollinger upheld a race-conscious admissions program at a public law school. The Grutter majority garnered 5 votes for Powell’s diversity rationale, mooting a long running argument that it had never commanded five votes. Still, as diversity opponents have sensed that the Court has become more conservative, they have refused to accept what should be settled law and have instead continued to bring challenges to Bakke/Grutter. Anti-diversity advocates are no doubt encouraged by the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated voluntary, and by their nature, race-conscious, public school desegregation efforts in Seattle and in Louisville.

There is no question that the Fourteenth Amendment, by its own terms, applies to all people. Still, there is great irony in the fact that many of the effects of systemic and intergenerational racial discrimination, especially as visited upon African Americans, remain intact, even in “The Age of Obama.” The Court has placed them beyond the reach of law. There is further irony in the fact that long after the Court has abandoned Brown’s imperative, even voluntary desegregation efforts have been found to constitute racial discrimination.

At a Harvard Law School symposium some years ago commemorating the occasion of the one hundredth anniversary of Plessy v. Ferguson (1896), I struggled to articulate the duality of the Fourteenth Amendment: its original purpose and imperative was undeniably directed at remedying discrimination against African Americans. And yet the Amendment was meant to protect all from unequal treatment under the law. One purpose does not negate the other. As Judge Guido Calabresi put it on that occasion, there are two Fourteenth Amendments: the Fourteenth Amendment for all, and the Fourteenth Amendment that holds the Thirteenth Amendment inside of it. That is not to say that the Thirteenth Amendment does not apply to all; it bans slavery and involuntary servitude from existing anywhere within the United States. But that part of the Thirteenth Amendment that aimed to wipe away the badges and incidents of slavery had significance for one people. The Equal Protection Clause’s duality is evidenced by the fact that the Framers of the Fourteenth Amendment adopted all manners of race-conscious measures specifically for black Americans: the Freedman’s Bureau, schools, hospitals, banks, and land. The notion that mere race-consciousness, whatever its intent, was inconsistent with the Fourteenth Amendment is unsupported by history. 

Lest we think that these facts have no contemporary significance, it bears remembrance that legalized subordination of African Americans did not end with the Thirteenth Amendment in 1865, or even in 1868 with the adoption of the Fourteenth Amendment. It was a continuum which only began to end with Brown v. Board of Education in 1954 and the Civil Rights Era legislation and jurisprudence of the 1960s. Bakke’s assault on the remedial imperative began a mere ten years after the beginning of the end of the subordination continuum. Even today, since the involuntary arrival of African Americans began in what is now the United States, nine out of every ten of their days have been spent in slavery and Jim Crow segregation, as have eight of every ten days since the adoption of the Declaration of Independence. Jurisprudence and discourse that disembodies present day racial inequality from our history of legally imposed racial subordination is either tone deaf to history or intellectually dishonest, as is the notion that there is moral or legal symmetry between efforts to address the effects of that history, on the one hand, and invidious discrimination, on the other. The Fourteenth Amendment continues to call to us. Even while it has other, no less important, work to do, it its original work is unfinished.

Theodore M. Shaw Theodore M. Shaw Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights, University of North Carolina School of Law

Common Interpretation

The Fourteenth Amendment Enforcement Clause

The Fourteenth Amendment Enforcement Clause

By Erwin Chemerinsky and Earl M. Maltz

Section Five of the Fourteenth Amendment vests Congress with the authority to adopt “appropriate” legislation to enforce the other parts of the Amendment—most notably, the provisions of Section One. As Senator Jacob M. Howard explained, Section Five “enables Congress, in case the State shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.”

By adding to the authority of Congress, Section Five changed the balance of power between the state and federal governments that is the hallmark of the federal system. The scope of the power conferred by this provision has been a matter of considerable controversy.  Initially, the Supreme Court gave a broad interpretation to Congress’s authority under Section Five. In Ex parte Virginia  (1879), the Court declared:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

However, subsequent decisions have at times construed the Section Five power more narrowly. These decisions have focused on two primary issues. First, who may Congress regulate? Second, what may Congress do? The debate over these issues that began in the late-nineteenth century continues to the present day.  

First, who may Congress regulate? In The Civil Rights Cases (1882), the Supreme Court struck down the provisions of the Civil Rights Act of 1875 that outlawed racial discrimination in a variety of private transactions, noting that Section One by its terms limits only the power of the states, and that therefore Section Five should not be read to provide Congress with the authority to regulate the activities of purely private parties. The Court declared: “It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the actions of State officers.” 

By contrast, in United States v. Guest (1966), six Justices, although not in a single opinion, concluded that Section Five empowered Congress to outlaw private discrimination in some circumstances. However, in United States v. Morrison (2000), the Supreme Court held that Congress did not have the power under Section Five to enact a law called the Violence Against Women Act, which allowed victims of gender-motivated violence to sue the perpetrator in federal court. This decision expressly reaffirmed the Civil Rights Cases and disavowed the opinions to the contrary in Guest. The Court declared that it was reaffirming “the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action.” 

Second, what may Congress do? More specifically, does Section Five allow Congress to prohibit actions by the state governments that would not be outlawed by Section One itself? The Supreme Court has answered this question differently over time. At one point, the Justices expressed the view that Congress can use its power under Section Five to expand rights, as well as to provide remedies for violations. Thus, in Katzenbach v. Morgan (1966), the Court held that Congress could rely on its Section Five authority to outlaw the use of literacy tests as a qualification for voters who had been educated in Puerto Rico, notwithstanding the fact that only seven years earlier the Court had found that the use of literacy tests did not violate the Fourteenth Amendment. The majority opinion concluded that Congress has the power to expand, but not limit the rights that would otherwise be protected by Section One of the Fourteenth Amendment.

In subsequent cases, however, the Court has held that Congress cannot use its power under Section Five to expand rights, but rather only to provide remedies for rights recognized by the courts. In Oregon v. Mitchell  (1970), a deeply-divided Court held that Congress could not constitutionally require the states to allow eighteen-year-old citizens to vote in state and local elections.

Most importantly, in City of Boerne v. Flores (1997), the Court held that Section Five does not empower Congress to create new rights or expand the scope of rights, and that even laws designed to prevent or remedy violations of rights recognized by the Supreme Court must be narrowly tailored—“proportionate” and “congruent”—to the scope of constitutional violations. City of Boerne involved the federal Religious Freedom Restoration Act (RFRA), a law adopted in 1993 in response to a Supreme Court decision that had narrowed the protections of the Free Exercise Clause of the First Amendment. In essence, RFRA subjected the actions of state and local governments to the same level of scrutiny that had been applied in earlier Supreme Court decisions interpreting the scope of the Clause. However, the City of Boerne majority concluded that this part of RFRA was unconstitutional because Section Five did not authorize Congress to either create new rights or expand the scope of the rights recognized by the Court itself.

Similarly, in Shelby County, Alabama v. Holder (2013), the Court declared a key provision of the Voting Rights Act of 1965 unconstitutional because it exceeded the scope of Congress’s powers under Section Five of the Fourteenth Amendment and Section Two of the Fifteenth Amendment (which grants Congress power to enforce the Fifteenth Amendment). That provision of the Voting Rights Act requires that certain states and counties with a history of race discrimination in voting obtain approval (called “preclearance”) from the United States Attorney General or a federal court before changing their election system (for example, enacting a law that requires voters to show identification). The Act included a formula that determines which states and counties need to get preclearance to change their election practices. Only some states and counties are required to seek approval before changing election policies, based on their history of discrimination in voting. When the Voting Rights Act was passed in 1965, the preclearance provision was set to expire after five years. The life of the provision was extended by statute in 1970, 1975 and 1982, and then for an additional 25 years in 2006.

In Shelby County, the Court determined that the 2006 extension was unconstitutional because formula for determining which states and counties required to seek preclearance before changing their election practices  was based on data about racial discrimination from the 1970s and had not been changed since 1982. Under these circumstances, the majority concluded that the selective imposition of the preclearance requirement ran afoul of what it described as “‘a fundamental principle of equal sovereignty’ among the States.”

Thus, under current law, there are two key limits on Congress’s power under Section Five of the Fourteenth Amendment, both of which are controversial. First, Section Five does not empower Congress to regulate private conduct, but only the actions of state and local governments. Second, Section Five does not provide Congress with the power to create new rights or expand existing rights, but rather only with the authority to prevent or remedy violations of rights already recognized by the courts. Moreover, the remedies provided by federal statures must be “proportionate” and “congruent” to the scope of proven constitutional violations. 

Matters of Debate

Erwin Chemerinsky Erwin Chemerinsky Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

Congress’s Broad Powers Under Section 5 of the Fourteenth Amendment by Erwin Chemerinsky

Section Five of the Fourteenth Amendment should be interpreted broadly to authorize Congress to advance the protections of due process, equal protection, and the privileges and immunities of citizenship.

Full Text

Earl M. Maltz Earl M. Maltz Distinguished Professor, Rutgers School of Law–Camden

The Power to Enforce: Section Five of the Fourteenth Amendment by Earl M. Maltz

Without question, Section Five of the Fourteenth Amendment changed the structure of our federal system.

Full Text

Matters of Debate

Congress’s Broad Powers Under Section 5 of the Fourteenth Amendment by Erwin Chemerinsky

Congress’s Broad Powers Under Section 5 of the Fourteenth Amendment

By Erwin Chemerinsky

Section Five of the Fourteenth Amendment should be interpreted broadly to authorize Congress to advance the protections of due process, equal protection, and the privileges and immunities of citizenship. The drafters of the Fourteenth Amendment intentionally chose not to leave the enforcement of its provisions solely to the courts, but instead gave Congress authority to enact laws to enforce its requirements. 

The history of the Fourteenth Amendment shows that its framers intended Congress to have expansive power under this provision. In the first case to interpret this authority after the ratification of the Fourteenth Amendment, the Court spoke of Section Five giving to Congress the power to “secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion” and that any act “if not prohibited, is brought within the domain of congressional power.” Ex parte Virginia (1879).

According Congress such power is a desirable and necessary way of fulfilling the crucial goals of the Fourteenth Amendment: protecting people from infringement of their rights or a denial of equality.  The Constitution is the floor, not the ceiling, of individual rights. Congress should have the ability to expand liberty and enhance equality, and Section Five should be interpreted to allow this.

 Unfortunately, the Supreme Court repeatedly has adopted unduly narrow interpretations of Congress’s power under Section Five. First, the Court wrongly held that Section Five does not empower Congress to regulate private conduct, but only state and local government actions. This was initially the holding in The Civil Rights Cases (1882), and reaffirmed in United States v. Morrison (2000), which held that Section Five did not give Congress power to pass a law prohibiting private gender-motivated violence. The Court reasoned that because Section One of the Fourteenth Amendment, which prohibits states from denying citizens privileges and immunities of citizenship, due process, or equal protection of the laws, applies only to state and local governments, Congress’s power to enforce the Fourteenth Amendment is similarly limited.

But that conclusion does not follow. As Justice Stephen Breyer expressed in his dissent in Morrison, “But why can Congress not provide a remedy against private actors? Those private actors, of course, did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can enact remedial ‘[l]egislation ... [that] prohibits conduct which is not itself unconstitutional.’” Moreover, violations of rights by private actors occur precisely because state and local governments have failed to prevent them. Congress, in preventing discrimination or violation of rights by private entities, is remedying the failures of state and local governments. This is exactly what the power under Section Five exists to accomplish.

Another Perspective

This essay is part of a discussion about the Fourteenth Amendment's Enforcement Clause with Earl M. Maltz, Distinguished Professor, Rutgers School of Law–Camden. Read the full discussion here.

Second, the Court has unduly limited Congress’s power to protect liberty and advance equality under Section Five of the Fourteenth Amendment. In City of Boerne v. Flores (1997), the Court ruled that Section Five does not empower Congress to create new rights or expand the scope of rights; rather Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly tailored — “proportionate” and “congruent” — to the constitutional violation. This significantly and unjustifiably limits congressional power. Applying this test, courts have declared unconstitutional federal laws expanding protection for religious freedom, making state governments liable for age and disability discrimination in employment, and allowing state governments to be sued for patent infringement.

The better view of Congress’s Section Five power was articulated in Katzenbach v. Morgan (1966). The Court concluded that Congress has the power to expand, but not limit the rights that would otherwise be protected by section one of the Fourteenth Amendment. This approach accorded to Congress the power to expand the protections of liberty and equality, as well as to prevent and remedy violations of rights recognized by the courts.

Third, the Court has wrongly restricted the Congress’s authority to impose remedies on states with a history of race discrimination in voting. In Shelby County, Alabama v. Holder (2013), the Court held that a section of the Voting Rights Act of 1965 that subjected certain states and counties to heightened antidiscrimination measures is unconstitutional, as is exceeds the scope of Congress’s powers and is an impermissible intrusion on state sovereignty.

The Voting Rights Act of 1965 is a landmark civil rights law. The law prohibits state and local governments from having election practices which discriminate, or have a discriminatory impact, against minority voters.  It authorizes lawsuits to enforce this prohibition. Congress, though, was concerned that this was not sufficient. Litigation is expensive and time consuming. Also, Congress was aware that many jurisdictions, especially in the South, were repeatedly changing their election practices to discriminate against minority voters.

Congress, therefore, included a preventative measure: Another section of the Act says that jurisdictions (states and counties) with a history of race discrimination in voting must get “preclearance” from the Attorney General or a three-judge court before significantly changing their election systems (for example, adopting a law that restricts early voting). The Act includes a formula defining which jurisdictions must get preclearance. 

Congress repeatedly reauthorized the preclearance requirement, including for five years in 1970, for seven years in 1975, and for 25 years in 1982. In 2006, Congress voted overwhelmingly – 98-0 in the Senate and 390-33 in the House -- to extend it for another 25 years and President George W. Bush signed this into law.

In Shelby County, Alabama v. Holder, the Supreme Court, in a 5-4 decision, held that the formula in the Voting Rights Act defining which states and counties have a history of discrimination in voting, and are therefore required to get approval before changing their election systems, is unconstitutional. This effectively nullified preclearance requirements under the Act. But it is unclear what constitutional provision or principle the Court found was violated by the Voting Rights Act’s formula for determining which states and counties have a history of racial discrimination, and are therefore subject to heightened antidiscrimination measures. The closest the Court came to indicating this was by saying that Congress violated the principle of equal state sovereignty, that it must treat all states alike. Nowhere, though, does the Constitution say that, and the framers of the Fourteenth Amendment obviously did not believe this since they also passed the Reconstruction Act and imposed military rule over Southern states.

This was the first time since the nineteenth century that a federal civil rights law dealing with race was declared unconstitutional. States immediately implemented voting laws that had been blocked by the Attorney General as discriminatory.

In all of these ways, the Supreme Court has improperly limited Congress and denied it the broad authority it should possess under Section Five of the Fourteenth Amendment.

Erwin Chemerinsky Erwin Chemerinsky Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

Matters of Debate

The Power to Enforce: Section Five of the Fourteenth Amendment by Earl M. Maltz

The Power to Enforce: Section Five of the Fourteenth Amendment

By Earl M. Maltz

Without question, Section Five of the Fourteenth Amendment changed the structure of our federal system. By its terms, this provision plainly vests Congress with the authority necessary to prevent state governments from invading the fundamental rights of the American populace. Nonetheless, the legislative history of the Fourteenth Amendment belies the argument that Section Five was designed to allow Congress to either define the scope of the rights protected by the Amendment or to declare that specific legislation constitutes an “appropriate” means to protect rights that are within the purview of Section One.

The Fourteenth Amendment (of which Section Five was a part) was intended to provide a detailed outline of the conditions under which the Republican party would allow the states that had joined the Confederacy to regain their status as full partners in the Union. As such, the provisions of the Amendment were intended to embody policy judgments which could be supported conscientiously by all mainstream Republicans. Throughout the process of drafting the Amendment, radical Republicans were forced to make a variety of concessions to their more conservative and moderate compatriots in order to maintain the necessary unanimity of support from party members.

The need to preserve party unity provided the background for the drafting of Sections One and Five. Admittedly, radical Republicans such as Senator Charles Sumner of Massachusetts had no qualms about concentrating power in the federal government. But while many less radical Republicans agreed  that Congress should be empowered to protect a limited set of fundamental rights, they also remained committed to the idea that federal power should be cabined within fairly narrow limits.

Another Perspective

This essay is part of a discussion about the Fourteenth Amendment's Enforcement Clause with Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. Read the full discussion here.

The strength of this commitment was clearly reflected in the discussions of a precursor to Section Five that had been proposed by the Joint Committee on Reconstruction in February 1866. The committee proposal would have armed Congress with the power to “make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens of the several States and to all persons . . . equal protection in the rights of life, liberty and property.” This measure was effectively defeated because it was opposed not only by Democrats, but also by a number of mainstream Republicans.  

None of the Republicans opponents expressed any concerns about the scope of the proposed privileges and immunities clause. Instead, all complained that the adoption of the equal protection language would have unduly expanded the powers of Congress. In apparent response to these objections, the final version of the Fourteenth Amendment replaced the phrase “equal protection in the rights of life, liberty and property” with “equal protection of the laws”—language that had a well-established legal pedigree in the nineteenth century.

But despite this change, those who argue for an open-ended reading of Section Five essentially contend that in June 1866, the mainstream Republicans who served in the Thirty-Ninth Congress unanimously and consciously embraced the same wide-ranging expansion of federal power that many had rejected less than four months before. This contention is simply implausible. If in fact Section Five of the Amendment reported by the Joint Committee in June had been so understood, one would have expected to have heard at least some comment from those Republicans who had so vigorously opposed the broadly worded version that was proposed in February. But in reality, no such comments were forthcoming. While mainstream Republicans of all stripes freely expressed their dissatisfaction with the basic forms of Sections Two and Three of the proposed Amendment, Republican criticisms of the potential scope of Sections One and Five were noticeably absent. Against this background, one can only conclude that those Republicans who feared that the broadly worded version that had been debated in February would unduly expand the scope of congressional authority had no such apprehensions about the principles that were ultimately embodied in the Fourteenth Amendment itself.

In short, the weight of the evidence clearly supports two principles that limit the extent of the power granted to Congress by Section Five of the Fourteenth Amendment. First, Section Five was not designed to give Congress the power to redefine the concept of fundamental rights. Second, congressional power to devise remedies for purported violations of Section One should also be subject to significant limitations. Of course, difficult line-drawing problems might still arise in some cases. But those who argue that Congress should have almost unfettered power to expand the protections of the Fourteenth Amendment misconstrue the import of the enforcement clause.

Earl M. Maltz Earl M. Maltz Distinguished Professor, Rutgers School of Law–Camden

Common Interpretation

The Privileges or Immunities Clause

The Privileges or Immunities Clause

By Akhil Reed Amar and John C. Harrison

In 1865, after the defeat of the Confederacy, the former Confederate States formed new state governments through which they hoped to restore their relations with the Union. Although slavery was abolished, the new governments retained racially restrictive voting rules and restricted the freed slaves in many of the rights of ordinary life, like those related to property and contract. Other fundamental freedoms, like the rights to speak freely and worship freely, were also widely restricted by postbellum Confederate States, much as they had been restricted by these states prior to the Civil War in cases involving whites as well as free blacks. In December of 1865, Senators and Representatives came to Washington from those States to take their seats. The Republicans who controlled Congress refused to seat members from the former Confederate States, and formed a Joint Committee on Reconstruction to address the status of those states in the Union. In the spring of 1866, the Joint Committee proposed a constitutional amendment that included a number of separate provisions. After modification on the floor of the House and Senate, that amendment was proposed by Congress in the summer of 1866 and ratified as the Fourteenth Amendment in 1868.

The Privileges or Immunities Clause of the Fourteenth Amendment was part of the amendment proposed by the Joint Committee on Reconstruction. The reference to privileges and immunities of citizens uses the words of the provision in Article IV of the Constitution providing that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” The relationship between the two clauses is one of many subjects of debate, in part because the meaning of the provision in Article IV was itself a subject of dispute when the Fourteenth Amendment was drafted. Although other provisions in the joint committee’s proposal were amended in the House and Senate, the Privileges or Immunities Clause emerged from Congress as proposed by the joint committee. In the congressional debates, the Clause was regarded as an important part of Section 1 of the Amendment, but debate focused mainly on Sections 2 and 3, which dealt with issues of political power. 

According to the Supreme Court’s cases, the privileges and immunities that no state shall abridge include only a limited number of legal protections related to distinctively national citizenship as opposed to state citizenship. In the Court’s view, the basic legal rights of the private law, like property, contract, and family relations, are not associated with citizenship of the United States as such. Rather, those rights are associated with state citizenship. Nor, according to the Court, do the rights of national citizenship include the protections of the first eight amendments insofar as those limitations might apply against the States as opposed to the United States. Although the Court has found that the Fourteenth Amendment does apply most of those limitations to the States, in its view that result is not accomplished by the Privileges or Immunities Clause. However, in various concurring and dissenting opinions, several  members of the Court over the years have emphasized the importance of the Privileges or Immunities Clause as one key ingredient or the key ingredient in applying against state and local governments various rights mentioned in the Bill of Rights, such as the rights to speak and worship freely. The Court has found some rights of national citizenship under the Clause, like the right to travel from state to state and establish residency in a new state.

Ever since the Fourteenth Amendment’s enactment, lawyers, judges, and commentators have argued that the Clause means more than that. One debate is whether the privileges and immunities of citizenship of the United States include the protections of the Bill of Rights—especially rights of speech, press, and religion—as applied against the States. Another concerns the Clause’s application to basic private rights, like contract and property, that were important elements of the set of rights known as “civil rights” in the nineteenth century. Those who believe that the Clause imposes some restrictions on the states regarding civil rights generally take one of two approaches. According to one view, often called substantive, the Clause mandates that citizens enjoy certain legal advantages, like the right to contract. Proponents of this interpretation often say that the states may regulate privileges and immunities but not take them away and so must regulate them reasonably. According to the other view, the Clause requires equality or non-discrimination. On this interpretation, to abridge one citizens’ private-law privilege or immunities is to limit those rights relative to those of other citizens. As long as all citizens have the same property rights, for example, it does not matter what those rights are. The central historical example of an unequal law from the framing of the Fourteenth Amendment is a Black Code, the kind of racially discriminatory restriction of the private rights of freed slaves enacted in many ex-Confederate states immediately after the Civil War. 

If the equality-based reading of private-law rights is correct, the Privileges or Immunities Clause performs much of the anti-discrimination function that is largely attributed to the Equal Protection Clause in the Supreme Court’s doctrine and the accompanying account of history. Similarly, if the Privileges or Immunities Clause is in fact the true basis for applying most of the Bill of Rights provisions against state and local governments, the Clause performs much of the fundamental-rights function that is largely attributed to the Due Process Clause in Supreme Court caselaw.

Matters of Debate

Akhil Reed Amar Akhil Reed Amar Sterling Professor of Law and Political Science at Yale University

The Privileges or Immunities Clause: America’s Lost Clause By Akhil Reed Amar

Ask any American for a list of the most important Supreme Court cases of the last century, and certain canonical names are sure to follow. However, strictly speaking, these cases are not Bill of Rights cases. 

Full Text

John C. Harrison John C. Harrison James Madison Distinguished Professor of Law, University of Virginia School of Law

Equal Civil Rights for Citizens By John C. Harrison

The Privileges or Immunities Clause of the Fourteenth Amendment operates with respect to the civil rights associated with both state and national citizenship.

Full Text

Matters of Debate

The Privileges or Immunities Clause: America’s Lost Clause By Akhil Reed Amar

The Privileges or Immunities Clause: America’s Lost Clause

By Akhil Reed Amar

Ask any American for a list of the most important Supreme Court cases of the last century, and certain canonical names are sure to follow: Gideon v. Wainwright (1963), ensuring a right to counsel; Engel v. Vitale (1962), ending official prayer in public schools; Miranda v. Arizona (1966), protecting the rights of the accused; New York Times v. Sullivan (1964), affirming America’s commitment to robust free speech rights. For most Americans, these cases represent the core of our Constitution and, in particular, the power of the key protections enshrined in our Bill of Rights. However, strictly speaking, these cases are not Bill of Rights cases. 

As originally written and ratified, the Bill of Rights protected against abuses by the federal government, not—as was the case in each of the canonical decisions listed above—against abuses by state and local governments. The federal Constitution today reaches these cases because of an amendment ratified nearly a century after the Founding—the Fourteenth Amendment—and authored by an important generation of constitutional innovators forgotten by too many Americans, the Reconstruction Republicans.

Today, the Fourteenth Amendment is one of the most powerful provisions in the U.S. Constitution. The Supreme Court has read it to protect a variety of rights against state abuses—both substantive rights (like religious liberty) and procedural rights (like the right to a jury trial); those explicitly written in the Constitution (like those in the Bill of Rights) and those that are not (like the right to privacy); those that apply in the political realm (like the right to vote) and those that have nothing to do with voting (like the rights of minors). Can a single sentence in a constitutional amendment ratified nearly a century after the Founding really justify this robust body of case law?

The Fourteenth Amendment and the Bill of Rights

Let’s begin with the Bill of Rights. The Supreme Court began to apply key Bill of Rights protections against state abuses in the late nineteenth century. Was this move consistent with the Fourteenth Amendment’s text and history?

As written by Ohio Congressman John Bingham, a crucial clause of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the nineteenth century (just as today), these “privileges” and “immunities” included key Bill of Rights protections like free speech. Even the infamous Dred Scott v. Sandford (1857) decision—the most widely read Supreme Court decision of its day— recognized as much, referring to the Bill of Rights as “rights and privileges of citizens” and specific protections like the “liberty of speech” and the right to “keep and carry arms” as “privileges and immunities of citizens.” Bingham’s Privileges or Immunities Clause simply declared that in post-Civil War America, states would no longer be permitted to abuse these fundamental rights—as they so often had in the pre-Civil War and Reconstruction-era South. The centrality of these rights, especially the rights of robust political expression, to the Reconstruction generation is obvious in the political slogan that helped launch the Republican Party—the driving force of the Fourteenth Amendment. In its very first presidential campaign, in 1856, the Republican Party nominated John C. Fremont and explained to all America just what the party stood for:  “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont.”

The Clause’s history confirms this reading. When explaining his Amendment, Bingham consistently tied the Privileges or Immunities Clause to the individual protections enshrined in the Bill of Rights. And other key Reconstruction leaders—like the Amendment’s spokesperson in the U.S. Senate, Michigan Senator Jacob Howard—followed suit.

To be sure, not every protection listed in the original Bill of Rights was a “privilege” of individual “citizens.” Instead, some were key states’ rights protections. For instance, at its core, the First Amendment’s Establishment Clause was originally designed in part to protect a state’s authority to set its own church establishment policy without interference from the federal government.  Following the ratification of the Fourteenth Amendment, it made little sense to apply this particular structural right against the states. Therefore, when deciding which Bill of Rights protections count as “privileges” and “immunities” for purposes of the Fourteenth Amendment, interpreters must analyze each amendment and separate out its individual-rights aspects (e.g., an individual’s right to free speech) from its states’-rights aspects (e.g., a state’s right to set its own church establishment policy).

Finally, the Civil War and Reconstruction transformed the core meaning of certain key Bill of Rights protections. Take the Second Amendment, for instance. At the Founding, this Amendment protected the collective right to bear arms in a well-regulated militia for purposes of protecting the American people against centralized tyranny. However, by the time “We the People” ratified the Fourteenth Amendment, the Civil War—a war won by a strong federal army over rebellious states—shattered this original vision. Rather than requiring a gun for purposes of mustering as part of one’s local militia, Reconstruction-era families—particularly, African-American families and white Unionists in the South—needed guns in their homes to protect themselves and their families from local violence by white vigilantes. In the process, the Second Amendment’s core meaning shifted from a collective right addressing the threat of federal government oppression to an individual right—an individual “privilege” of American citizenship—targeting state and local abuses.

Another Perspective

This essay is part of a discussion about the Privileges or Immunities Clause with John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law. Read the full discussion here.

Beyond the Bill of Rights

While certain key Bill of Rights provisions represent core “privileges” and “immunities” protected by the Fourteenth Amendment, these capacious words cover other fundamental rights, as well. For instance, they protect certain rights enshrined in other parts of the Constitution, such as the “privilege” of habeas corpus protected against the federal government in Article I, Section 9. While this “privilege” isn’t in the Bill of Rights, it is a fundamental “privilege” of individuals protected by the Fourteenth Amendment.

The Fourteenth Amendment also protects certain “privileges” and “immunities” that are not explicitly listed in the Constitution (like the right to privacy). Indeed, the Fourteenth Amendment’s very text invites interpreters to search for all rights recognized by Americans as fundamental, from those enshrined in state constitutions to those contained in canonical texts (like the Declaration of Independence) to those protected by landmark civil rights laws (like the Civil Rights Act of 1866) to those affirmed by the lived experiences of ordinary Americans and the everyday practices of their governments. For judges, this means reaching beyond the judges’ own individual preferences and searching for the fundamental rights actually recognized by the American people.

Finally, while the Fourteenth Amendment applies to a broad range of civil rights, it does not apply to political rights like voting, jury service, militia service, and office-holding. When drafting the Fourteenth Amendment, the Framers borrowed key language from Article IV of the Constitution, which also spoke of “Privileges” and “Immunities” of “Citizens.” At its core, Article IV secures interstate equality of citizenship. Under Article IV, a state like Georgia must grant a traveling New Yorker the same civil rights as its native Georgians. Even so, Georgia does not have to allow the visiting New Yorker to vote in its elections or serve on its juries. The same is true of the Fourteenth Amendment. Importantly, this reading is confirmed by the Fourteenth Amendment’s history, as Reconstruction leaders consistently emphasized that their proposed Amendment would not reach voting rights. Simply put, Northerners in 1868 were not yet ready for nationally guaranteed African American suffrage.

Of course, the later Fifteenth Amendment did directly address and prohibit race-discriminatory voting laws; much as other later Amendments banned other voting exclusions, such as the Nineteenth Amendment’s prohibition of sex-discriminatory voting laws and the Twenty-Sixth Amendment’s ban on certain age-discriminatory voting laws. In the mid-1860s, two other constitutional clauses were also central to the debate about voting rights. First, many Reconstruction Republicans embraced a broad reading of the original Constitution’s Article IV Guarantee Clause, otherwise known as the Republican Government Clause. Second, the second section of the Fourteenth Amendment did explicitly address voting rights issues left untouched by the Amendment’s opening section.  Indeed, the Section 2 of the Fourteenth Amendment introduced the words “the right to vote” into the Constitution for the first time—a phrase that today appears no less than five times in the document as amended and re-amended over the centuries.

The Document and the Doctrine: A Word of Caution

In the end, despite the strong textual, structural, and historical evidence supporting a robust reading of the Privileges or Immunities Clause, the Supreme Court gutted this key provision shortly after the Fourteenth Amendment’s ratification—in the 1873 Slaughter-House Cases. The Court then waited decades before beginning to protect Americans against state violations of various fundamental rights, first in 1897 in a case involving the right to just compensation and then in a string of cases in the twentieth century involving core individual freedoms, including free speech, religious liberty, the rights of the accused, and the right to privacy. However, even then, the justices didn’t use the clean text of the Privileges or Immunities Clause to make this move, instead relying on the Fourteenth Amendment’s Due Process Clause. While this text fit nicely with procedural protections like the right to a jury, it was a peculiar fit with key substantive freedoms like the right to free speech. 

Bingham and his fellow Fourteenth Amendment Framers deserve better. Through the Fourteenth Amendment (and its Privileges or Immunities Clause), they envisioned a new America, one in which Americans were finally protected from state violations of their most cherished rights. By refusing to admit error, the Supreme Court divorced one of its most important constitutional achievements—protecting key freedoms against state abuses—from the Constitution’s text and history. As is often the case, the Constitution itself is more inspiring—and sensible—than the Supreme Court’s handiwork.

Akhil Reed Amar Akhil Reed Amar Sterling Professor of Law and Political Science at Yale University

Matters of Debate

Equal Civil Rights for Citizens By John C. Harrison

Equal Civil Rights for Citizens

By John C. Harrison

The Privileges or Immunities Clause of the Fourteenth Amendment operates with respect to the civil rights associated with both state and national citizenship. The Clause refers to the privileges and immunities of citizens of the United States, and Section 1 of the Amendment also makes citizens of the United States citizens of the state wherein they reside, thus ensuring that the individuals who are citizens of the United States will also be citizens of a state if they live in one. Privileges and immunities of citizens are civil rights as understood in nineteenth-century legal classifications. They are the basic rights of ordinary life, especially owning property, making contracts, and forming domestic relations, but do not include either political rights like voting, or special legal benefits like franchises granted by the government to private people primarily to advance the public interest. (Classifying many twenty-first century government benefits as between civil rights and special privileges often presents difficult questions concerning the application of an old legal concept to new circumstances.)

With respect to the civil rights of state citizenship, the Clause provides for universal equality. It can be paraphrased as “all citizens shall have the same civil rights.” Because it is an equality rule, the Clause does not dictate or constrain the content of civil rights recognized by state law. It requires that whatever those rights are, all citizens shall have them alike. Its drafters believed that such a rule of universal equality would forbid race discrimination with respect to civil rights. They thought that the post-Civil War Black Codes enacted by the former Confederate States, which limited the civil rights of freed slaves, abridged the freed slaves’ civil rights by limiting them relative to those enjoyed by white citizens. Just how requirements of general equality entail limitations on the classifications drawn by legal rules, like classifications based on race, sex, and age, is one of the most difficult questions left to us by the drafters of the Fourteenth Amendment. They deliberately formulated their principle in terms that did not refer specifically to race, and so posed for themselves and their successors a hard problem.

Because it refers to citizens of the United States, the Clause also operates as to the privileges and immunities of national citizenship. In general, legal protections associated with national citizenship are immune from limitation by state law because of the supremacy of federal law under Article VI of the Constitution. With respect to the privileges and immunities of national citizenship that limited the states before the Fourteenth Amendment was adopted, the effect of the Clause is indirect but important. Although the states were bound to respect the rights of national citizenship before the Amendment was adopted, the power of Congress to adopt legislation affirmatively protecting those rights was a matter of considerable controversy. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce the Amendment, including the Privileges or Immunities Clause. Congress now has authority to create protections for rights of national citizenship that it may previously have lacked.

Another Perspective

This essay is part of a discussion about the Privileges or Immunities Clause with Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University. Read the full discussion here.

Determining the content of the privileges and immunities of national citizenship that pre-dated the Fourteenth Amendment requires looking to sources of law other than the Amendment, which refers to but does not itself create those privileges and immunities. Some federal statutes create civil rights and hence rights of national citizenship. The patent statutes do so, because they provide for intellectual property and property is a civil right. The Clause does not, however, expand the legislative authority of Congress beyond what is enumerated elsewhere in the Constitution. It does not give Congress authority to legislate as to property and contract generally, for example. Rights of property and contract are civil rights, but they are associated mainly with state and not national citizenship because power over them is generally left with the states and not granted to Congress. Whether the existence of the national government and the relationship between that government and citizens of the United States produces some rights of national citizenship is a difficult question. The Supreme Court has stated that there are implicit rights of national citizenship, such as coming to the national capital to transact business with the federal government. Whether that is so depends on the content of national citizenship, a category referred to but not created by the Fourteenth Amendment.

Many supporters of the Fourteenth Amendment in Congress and the states believed that the Privileges or Immunities Clause would impose on the states some or all of the limitations imposed on the federal government by the first eight amendments. They believed, in today’s parlance, that the Clause wholly or partially incorporated the Bill of Rights as against the states. Whether it did so is a difficult question. That it would do so was indeed widely believed. That conclusion is not easy to derive from the text, however, because it requires that there be rights of national citizenship that, but for the Clause, would not limit the states. Squaring that assumption with the Supremacy Clause is possible, but requires some careful parsing of the text and the concepts it uses.

John C. Harrison John C. Harrison James Madison Distinguished Professor of Law, University of Virginia School of Law