Understanding a Glorious Amendment
The following piece is an adaption from “The Second Founding: An Introduction to the Fourteenth Amendment” by Ilan Wurman.
The standard public debate over the Fourteenth Amendment goes something like this. Critics of the Supreme Court’s interpretations of the Fourteenth Amendment over the last several decades believe that the Court has used the Amendment’s provisions for “due process of law” and “equal protection of the laws” as open-ended vehicles for judicial policymaking, whether on abortion or gay marriage or a host of other issues. Indeed, it is difficult for someone sympathetic to the result in the 2015 gay marriage case Obergefell v. Hodges to read the Court’s opinion and get the feeling that what the Court is doing is law. The case was decided under the rather nebulous concept “substantive due process”: the idea that the Fourteenth Amendment’s injunction that no person shall be deprived of life, liberty, or property without due process of law is not merely about process, as its terms might suggest, but also about “substance” – namely, that the clause protects unwritten, unenumerated fundamental rights or prohibits arbitrary and oppressive legislation.
The majority of the Supreme Court also seemed to believe that it was up to them to decide over time how those unenumerated, fundamental rights ought to evolve. Although “[h]istory and tradition guide and discipline this inquiry,” they “do not set its outer boundaries.” “The identification” of fundamental rights, Justice Kennedy wrote in Obergefell – not only their protection, but also the actual determination of what those rights are in the first place – “is an enduring part of the judicial duty to interpret the Constitution.” What rights the Constitution insulates from democratic action cannot be “reduced to any formula,” but rather courts must “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” The courts’ process is “guided” by the considerations relevant to the analysis of “other constitutional provisions that set forth broad principles rather than specific requirements.” The people, Justice Kennedy wrote, “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning” – by which he meant, of course, as the Court decides its meaning.
Justice Kennedy’s opinion echoes one of the most influential constitutional law scholars of the last century, John Hart Ely, who wrote in his famous Democracy and Distrust that the Fourteenth Amendment was a broad and open-ended delegation of power to future constitutional decisionmakers. Ely would have disagreed with Justice Kennedy on substantive due process: Ely was quite explicit that due process of law was indeed historically about process. Nevertheless, Ely argued that the privileges or immunities clause and the equal protection clause were equally broad invitations to future courts to protect new rights. For example, the privileges or immunities clause “was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding.” The content of the equal protection clause, Ely wrote, “will not be found anywhere in its terms or in the ruminations of its writers,” but the clause nevertheless serves as “a rather sweeping mandate to judge of the validity of governmental choices.”
Simply put, according to Ely, the Fourteenth Amendment “contains provisions that are difficult to read responsibly as anything other than quite broad invitations to import into the constitutional decision process considerations that will not be found in the language of the amendment or the debates that led up to it.” Justice Cardozo echoed this sentiment when he spoke of the Constitution’s “great generalities,” whose “content and . . . significance . . . vary from age to age.” In light of holdings and comments such as these, critics see the Fourteenth Amendment as interpreted by the modern Supreme Court and advocated by academics as a vehicle for unbounded, undemocratic judicial lawmaking.
However, proponents of this broad and open-ended approach to the Amendment – and proponents of the notion of “living constitutionalism” more generally – consider the alternative unthinkable. Reverting to the “original meaning” of the Fourteenth Amendment would mean “excluding” women, gay Americans, and other minorities from the Amendment’s protections. It is a common belief, for example, that originalism cannot support the result in Brown v. Board of Education, the seminal 1954 decision requiring the desegregation of public schools. Eric Segall, a prominent nonoriginalist law professor, wrote in Vox in 2017 just before the confirmation hearings of Justice Neil Gorsuch that “Brown v. Board of Education, one of the most important cases of the 20th century, would have turned out the other way if the justices had accepted originalist principles.” He described the originalist attempts to justify Brown as “embarrassing.”
Indeed, at least some originalist alternatives would be quite hard to swallow. In dissent in Obergefell, Justice Antonin Scalia wrote that “[w]hen the Fourteenth Amendment was ratified . . . it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice [the sanctioning of marriage between only a man and a woman] that remained both universal and uncontroversial in the years after ratification.” This, to Justice Scalia, should have ended the matter. But can that really be the answer? Are we bound to what people in 1868 would have understood about an issue to which no one at the time had put any thought? Are we consigned to interpreting the Fourteenth Amendment either as a broad and open-ended invitation to future judges to decide what a democratic people should not be able to do through self-government or as a narrow requirement for judges to strike down only those practices that would have been thought unconstitutional in 1868?
It turns out that neither approach does justice to the Fourteenth Amendment and its authors. The provisions they wrote were neither so broad nor so narrow. Each provision of the Amendment’s first section deploys a legal concept with a rich history in antebellum law or legal theory – legal concepts that, when faithfully applied, lead to both surprising and desirable results in the modern day. For example, it is astonishingly easy to defend Brown and desegregation on the original meaning of the privileges or immunities clause, which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is also possible, although not quite as easy, to arrive at the result in Obergefell, thereby guaranteeing the right to same-sex marriage under this clause. Whether or not the privileges or immunities clause necessarily justifies that decision, at least if the Court had justified the decision on the basis of that clause it would have appeared to all participants in the debate that the Court was making an honest attempt at doing “law” and less that it was simply making it up.
In short, the argument presented here is that the Fourteenth Amendment was written with legal terms of art – terms that were sufficiently capacious to apply to new and important contexts, but not so capacious as to be open-ended invitations to judges to import their own extratextual values into the Constitution. The Second Founding seeks to introduce the reader to the meaning and history of the Fourteenth Amendment’s three key provisions in its famous first section – the privileges or immunities clause, the due process clause, and the equal protection clause – as well as that section’s grant of birthright citizenship.
* * *
We are now ready to embark upon the second part of our story: the historical problem that the Fourteenth Amendment was framed to solve. That problem comprised three major issues. First, before the Civil War, there was a raging debate over the status of free black citizens of Northern states. If they were free citizens, were they not entitled under the comity clause to all of the privileges and immunities of another state’s citizens when traveling through that state? To get around this apparent constitutional requirement, the Southern states, over the vigorous dissents of several Northern ones, began to argue that these free black citizens were not “citizens of the United States” within the meaning of the Constitution.
After the Civil War, the country faced the problem of free black citizens within the states that had previously had slavery. Not only had these states been discriminating against the free black citizens of other states, but also now they began discriminating against the free black citizens of their own states – denying them, in the infamous Black Codes, the same privileges and immunities they accorded white citizens.
What is more, both before and after the Civil War many state governments were denying the protection of the laws not only to free and enslaved blacks, but also to those who were seeking to ameliorate their condition – the abolitionists and, later, the Unionists. Lynchings of abolitionists and free black citizens were notorious in both the North and South and were the subject of Abraham Lincoln’s famous Lyceum Address.
The historical legal meanings of the concepts deployed by the Fourteenth Amendment’s first section, against the backdrop of these historical problems, should make clear beyond any doubt that the Fourteenth Amendment’s terms were intended to address and solve them. That they do so almost precisely suggests that the meanings of the terms in the Fourteenth Amendment’s first section are what they had been in antebellum law.
* * *
What is the meaning of this glorious Amendment? “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.” By this very first sentence, the Constitution settles the longstanding question of comity rights. By the operation of this sentence, free blacks and the newly freed people (and all others born in the United States) are declared citizens of the United States, which means they would automatically be entitled to the privileges and immunities of citizens within the several states as guaranteed by Article IV. No privileges or immunities bill would be necessary at all; the Constitution resolved this question directly.
The very next clause provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” We shall explore the privileges or immunities clause in more detail momentarily because its meaning remains so hotly contested today. But its meaning seems inescapable. The Civil Rights Act of 1866 declared any person born in the United States to be a “citizen of the United States,” and as “such citizens” they were entitled to equality in the provision of state-defined privileges and immunities. This privileges or immunities clause thus operates like many traditional privileges and immunities clauses: it is fundamentally a guarantee of equality with respect to certain state-defined privileges and immunities. If the first sentence of the Fourteenth Amendment solves the question of comity rights, the second clause constitutionalizes the Civil Rights Act of 1866 and invalidates the Black Codes.
The final two clauses provide “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.” When combined with the enforcement power in the fifth section, these provision appear to have constitutionalized the Freedmen’s Bureau (and would later provide additional constitutional authority for the reconstruction governments) and to require all states to provide the due process of law and the equal protection of the laws – as understood by the antebellum legal meanings of these terms – that had been sorely lacking in the pre- and post-Civil War South.
These conclusions, if correct, are simple and elegant. The Fourteenth Amendment deploys the antebellum legal concepts of due process, protection of the laws, and privileges and immunities of citizenship, as well as birthright citizenship, to constitutionalize the legislative acts that directly sought to solve the problems of comity clause rights, private violence, and the Black Codes. Not only did the Amendment constitutionalize these various acts, but also it embedded their concepts into the fundamental law of the land itself, and it thereby insulated their requirements from change and abridgment at the hands of shifting future majorities.
Ilan Wurman is an Associate Professor of Law at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches constitutional law.
