“Law,” “Citizens,” and 1868

Editor’s Note: This review is part of a symposium on Randy Barnett and Evan Bernick’s The Original Meaning of the Fourteenth Amendment.

Randy Barnett and Evan Bernick’s The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit is a wonderful book. While it certainly could have been much longer, its 200,000 or so words will whet the appetite for those looking forward to digging through the million-and-a-quarter words of Kurt Lash’s two-volume collection from earlier this year. But it will also be a good choice for someone with time for only a single book on the Fourteenth Amendment. (Ilan Wurman’s, also from earlier this year, is another shorter, cheaper one.) Legal and philosophical jargon are kept to a minimum, and the beginning of the book explains their originalist project concisely and clearly, but they hit the main important interpretive questions of the Amendment’s three main clauses.

What Barnett and Bernick Get Right

I first note six aspects of the Fourteenth Amendment’s meaning that Barnett and Bernick get very importantly right:

First, they rightly see the Privileges or Immunities Clause as protecting both equal civil rights between similarly-situated citizens of the United States within a single state and civil rights nationwide. The Clause both bans intrastate “hostile and discriminating legislation,” as Justice Field said in his Slaughterhouse Cases dissent, and acts “to secure the civil rights of all citizens of the republic,” as the Joint Committee on Reconstruction described its aim.

Second, they rightly see the distinction between public and private action, especially in the Privileges or Immunities Clause, not in terms of a simple dichotomy between the government and everyone else, but as a trichotomy among governmental, public but non-governmental, and purely private action. Nongovernmental common carriers and others in the non-governmental-but-public sphere—businesses “affected with a public interest”—are duty bound to serve all citizens equally, and state statutes may not abridge these privileges any more than the state itself may limit private freedoms arbitrarily. While this trichotomy goes back to distinctions Chief Justice Matthew Hale drew in the seventeenth century, recent controversies about threats to equal citizenship from private power in the hands of the likes of Amazon, Facebook, Google, or Twitter makes clear that these distinctions are far from obsolete.

Third, they rightly embrace (at least during Reconstruction) a related trichotomy among political, civil, and social rights. The privileges of citizens are only civil rights, i.e., not social rights against purely-private insults, nor political rights to control the government.

Fourth, they rightly criticize the limitation of the privileges of citizens of the United States to our enumerated constitutional rights against the federal government, a view embraced by Kurt Lash in the legal academy today and on the Supreme Court a generation ago by Justice Hugo Black, but pioneered by Senator Allan Thurman opposing civil-rights legislation in February 1872. The individual rights most needed in 1791 against a federal government of limited and enumerated power—in particular, a federal government lacking power over labor conditions in the states—were not the rights, especially equal free-labor rights, most needed during Reconstruction.

Fifth, they rightly see the Due Process of Law Clause as a requirement that judges investigate fairly, and without leaving relevant evidence on the table, facts material to the legality of a deprivation of liberty or property. This is an important corrective to the Supreme Court’s over-the-top deference to legislatures in 1955 in Williamson v. Lee Optical. I would go even further along this line than would Barnett and Bernick, agreeing with the dissenters in O’Gorman & Young v. Hartford Insurance of 1931 that courts should infer from a state’s failure to justify a liberty-restricting law that no such justification exists.

Sixth, they rightly view the Equal Protection of the Laws as a guarantee of the equal provision of the literal “protection of the laws,” i.e., protection from private violence like that of the Klan, rather than as a generic shield against discrimination.

These important virtues made clear, however, I have three criticisms: their understandings of “law,” of “citizens,” and of whether some privileges of citizens of the United States were frozen in 1868.

Due Process of Law: Moral and Natural or Merely Positive Law?

First, Barnett and Bernick are wrong to read “law” in “due process of law” in as moralized way as they do, following Justice Chase’s use of the term in 1798 in Calder v. Bull: “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” They see the due process of law as itself forbidding arbitrary legislative action. I agree that the Fourteenth Amendment forbids arbitrary distinctions among citizens, but it is the Privileges or Immunities Clause, not due process, that does so. The Privileges or Immunities Clause alone puts restrictions on the content of the “law,” while Due Process of Law and Equal Protection of the Laws require that such law be neither evaded nor unenforced.

Chase’s reading of “law” in Calder shows, of course, that the word sometimes has a strongly moral connotation, in certain contexts. But not, I think, in the context of the Fourteenth Amendment. The word “law” in the context of Section One of the Fourteenth Amendment, most obviously in its Privileges or Immunities Clause, refers to merely positive law, not a law that necessarily satisfies scrutiny of its proportionality or the fit between its means and ends. Why read “law” in the Fourteenth Amendment as merely positive law? Barnett and Bernick discuss my work on the Thirteenth Amendment, which notes that in 1866 several Republicans indicated without contraction that one could be “duly convicted” of crime even if one was sentenced to enslavement for petty theft. The word “duly” in the Thirteenth Amendment, they seem to concede, does not embody any moral connotation of proportionality or means-ends fit, and neither, it seems, does the word “due” in the Due Process of Law clause of the Fourteenth. It is true, as they point out, that there is relatively little evidence—though there is some—directly linking “duly convicted” and “due process of law.” My Thirteenth Amendment argument can only go so far in undermining the idea that Due Process of Law requires means-end proportionality. “This evidence, while probative, is insufficient to establish synonymy,” they say. Fair enough. But I present three other much stronger arguments for a positive-law interpretation of “due process of law” that are specifically tied to forms of the word “law,” not just “due.” Barnett and Bernick explain away none of this evidence:

First, the word “law” in the Privileges or Immunities Clause operates as the negative object of its prohibition, rather than a positive requirement. A state must make a “law”—not just an “act,” but a full-fledged “law”—in order to be subject to the Privileges or Immunities Clause. If an unjustly-discriminatory or disproportionate act of a state legislature were really, as Chase said, not a law, then the Privileges or Immunities Clause would not apply to it. But in that case the Privileges or Immunities Clause couldn’t constitutionalize the Civil Rights Act of 1866 (or much of anything particularly important). There is a reason why Barnett and Bernick speak of the Due Process of Law and Equal Protection of the Laws clauses, but not of the Law Abridging Privileges or Immunities clause. In the Privileges or Immunities Clause, the word “law” has shed any significant moral connotation. Regaining it suddenly later in the sentence would be jarring.

Second, the Republican-Party-beloved Northwest Ordinance, Missouri Compromise, and Wilmot Proviso all required “lawfully claimed” fugitives from racially-based enslavement to be “lawfully reclaimed.” At the same time, Republicans like Lincoln said over and over that such enslavement and re-enslavement was deeply morally wrong; if it was not wrong and “contrary to the great first principles of the social compact”—which Chase in Calder v. Bull said reduced a law to a mere “act”—nothing was. “Lawfully” in the Ordinance, Compromise, and Proviso refers to positive law.

Third, Justice Story’s definition of Fifth Amendment due process of law—“the right of trial according to the process and proceedings of the common law”—was repeated by a great many congressmen during an enormously long 1862 discussion over the Second Confiscation Act in 1862. Without contradiction, they repeatedly explicitly distinguished disproportionate confiscation from confiscation without due process of law.

Citizenship: Active or Passive?

Just as “law” features a long-running ambiguity between morally-infused and merely-positivistic meanings, “citizen” has for a long time referred in some contexts to those who control a government, but at other times to those for whose sake it acts. The French revolutionary tradition early on distinguished “active citizens,” who had voting rights, from “passive citizens,” who merely had the right to proper treatment by the government. Citizenship is close etymological kin to the term “civil rights,” which Bouvier’s Law Dictionary (often relied upon by Republicans in 1866) defined as “those which have no relation to the establishment, support, or management of government.” As noted above, Barnett and Bernick agree that the Privileges or Immunities Clause embodied a crisp tripartite distinction between civil rights, which were covered, and social and political rights, which were not. But later they argue that changes like the Fifteenth and especially the Nineteenth Amendments blurred the distinction between political and civil rights, because voting came to be seen as a fundamental aspect of being a citizen.

To be sure, as a fan of economic liberty and economic good sense, I mourn the extent of rent-seeking legislation that since the early twentieth century has regularly allowed sellers to reduce output, raise costs, and impose societal costs….But the early twentieth century happened; laissez faire rights in fact do not characterize America and her people the way they did in 1868.

This does not seem right to me. The Republicans of 1866 saw the civil/political distinction as literally definitional of civil rights, and so of (merely passive) citizenship, which was all that the Fourteenth Amendment covered. Lack of relationship to control of the government was presented as something expressed in the very idea of “privileges or immunities of citizens,” and so nailed down permanently. Moreover, the Fifteenth and Nineteenth Amendments’ later constitutionalization of voting rights was not based on newfound appreciation of the importance of voting rights to citizens in securing proper treatment by the government.

It was perfectly plain to Congress even in 1866 and 1867 that freedmen’s voting rights were essential to their proper treatment by southern governments; they just were not willing yet to constitutionalize this principle. Section Two of the Fourteenth Amendment provided for a loss of House representation for states that restricted voting rights, and Republicans on the campaign trail in 1866 pointed to it repeatedly as proof that Section One itself did not contain voting rights; it would make no sense to impose a limited penalty for something elsewhere banned altogether. Section Two thus confirms that Section One covers merely the rights of passive citizenship, not those of active citizenship.

Section Two also confirms, however, that voting rights were simultaneously deemed to be extraordinarily important to the freedmen. Voting rights were so important that the South would forfeit a great deal of its House representation if it refused to grant them. Moreover, the actions of its second session in the March 1867 Reconstruction Act, directly imposing black suffrage on the South under Congress’s jus post bellum power to obtain security for the North’s victory in the war, make quite plain that Congress understood quite well how critical voting rights were for the protection of other civil rights. To incorporate political rights into the Fourteenth Amendment based on supposed subsequent factual developments is anachronistic. We cannot justify the collapse of the civil-political distinction based on changed or better-recognized facts, because the relevant facts were already fully recognized during Reconstruction.

1868: An Immutable Floor?

Finally, Barnett and Bernick insist that both rights prevalent in 1868 and rights that later come to be seen as essential to Republican citizenship are constitutionalized nationally as privileges of citizens of the United States. They recognize that the set of rights generally enjoyed by American citizens has changed significantly over time, sometimes expanding to new fields, sometimes retreating out of others. What does the Privileges or Immunities Clause require in such circumstances? Barnett and Bernick understand the clause to impose an irreducible initial constitutional floor, but no ceiling. When the tradition expands, so do our Fourteenth Amendment rights, but when the tradition cuts back, our constitutional rights stay the same.

Now, I agree with Barnett and Bernick that the privileges and immunities of citizens of the United States include the rights that generally characterize the American republic and American civil liberty today. The Privileges or Immunities Clause does not speak of “current” privileges of citizens of the United States, from the perspective of 1868, but simply of the privileges of such citizens. On my view, there are certain civil rights that make us Americans, and the Privileges or Immunities Clause tells individual states not to abridge those rights.  The departure of a small number of states from the mainstream of American civil rights represents unjustified interstate inequality among citizens of the United States in different states, and like unjustified intrastate disparity between such citizens in the same state, it unconstitutionally abridges those citizens’ privileges and immunities. But if securing national civil rights is a matter of preventing unjustified inequality among Americans’ civil rights today, it does not make sense to have a permanent national floor based on civil rights with a national consensus during Reconstruction itself. If a great number of states simultaneously change how they treat certain civil rights, they are changing the American consensus rather than violating it.

Barnett and Bernick specifically criticize my view because it would allow a retreat even on central motivating paradigm cases like free-labor rights. “That’s a problem for his theory,” they say. But that sometimes happens with general categories. Some neurologists have asked whether Lou Gehrig himself actually had “Lou Gehrig’s Disease,” i.e., amyotrophic lateral sclerosis or ALS. Gehrig had certain symptoms that doctors later associated with ALS, but neurologists have asked whether they might really have been the result of repeated concussions. This example shows that fact-dependent paradigm cases can sometimes fall outside a category if those factual assumptions change or prove incorrect. Whether free labor is a nationwide privilege of citizens of the United States depends on how well the rights of free labor satisfy, factually, the textually-expressed criterion of what makes something such a privilege.

To be sure, as a fan of economic liberty and economic good sense, I mourn the extent of rent-seeking legislation that since the early twentieth century has regularly allowed sellers to reduce output, raise costs, and impose societal costs by preventing consensual deals by competitors that would have increased overall human flourishing. But the early twentieth century happened; laissez faire rights in fact do not characterize America and her people the way they did in 1868. Moreover, it would be bizarre to enforce intrastate equality rights based on an 1868 time stamp. The mere fact that a similarly-situated citizen once received a right in 1868 does not mean that I am entitled as a matter of equality to that right today, if in the meantime the state has fairly changed the rules for all citizens. Temporal qualifiers in our Constitution need to be more orderly than to apply so haphazardly to different aspects of the same clause. Without a time stamp like “current or future” in the text itself, we have no textual ground for construing the Privileges or Immunities Clause as Barnett and Bernick do.

All hope is not lost, however, either for laissez-faire rights or for other civil rights with less national stature than they had in 1868. Barnett and Bernick warn that without an 1868 floor, my view of the Privileges or Immunities Clause “provides no fire break” against, for instance, the erosion of our free-speech tradition with the idea of unprotected “hate speech.” Intrastate equality, however, is just such a fire break. Barnett and Bernick note that Republicans wanted to entrench statutes like the Civil Rights Act of 1866 permanently, without any factual contingency. They are right about that. But we do not need a permanent 1868 aspect to our national civil rights to do so.

My reading makes intrastate equality in civil rights permanent, come what may, and this permanence applies to free-enterprise rights as well. The requirement of equality in my reading is not dependent, moreover, on being a consensus view in 1868 itself. We can thus read the Reconstruction Republicans in 1868 as making equality characteristic of America, not accepting equality as constitutionalized pursuant to a more general standard. (This is a point Ilan Wurman will stress in his own review of Barnett and Bernick’s book.) Equality of civil rights is thus an important fire break for threats to free speech, free exercise, and even free labor. For subscribers to disfavored political or religious creeds to receive fewer civil rights simply because of such hostility is a classic unjustified, unconstitutional distinction among citizens of the United States.  Equal citizenship is likewise a permanent ban on unjustified special privileges for rent-seeking “crony capitalists” who use regulation not for the general good of the citizenry, but merely to suppress competition.

Even in an America in which such regulation is pervasive—in a world in which the constitutional demand for equality has come back “marked insufficient funds,” as Martin Luther King Jr. rightly said it had in other settings—the Privileges or Immunities Clause will always condemn unjustified distinctions in the liberties of similarly-situated citizens of the United States. The Fourteenth Amendment makes equal citizenship itself a permanent feature of who we are.