He may seize a few words from jurists here and there to support his version of extreme deference, but he is deaf to the jurisprudential music of the era.
Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement — the Privileges or Immunities Clause and the Equal Protection Clause — apply only against the states, not the federal government. There is some evidence that the Due Process Clause of the Fourteenth Amendment applies an equality requirement, but that Clause applies only to the states. There is not much evidence that the Fifth Amendment Due Process Clause, which applies to the federal government, contains such a requirement.
Dolin argues that an equality requirement derives from the Citizenship Clause of the Amendment, which provides that “All persons born or naturalized in the United States . . . are citizens of the United States.” While I have not read Dolin’s paper, this is a common argument these days, most recently defended by Ryan Williams in the Virginia Law Review.
In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from legal originalist one as well.
This type of argument is seriously problematic. In a recent article, I addressed this position in a footnote that sets forth the most serious problems:
In recent years, some scholars have argued that a Fourteenth Amendment equality principle applies against the federal government. . . . [through] the Citizenship Clause of the Fourteenth Amendment . . . . While this is not the place to attempt to rebut this argument, a few words may be in order. First, it would be extremely odd to read the Fourteenth Amendment in this way. The obvious meaning of the Amendment is that it confers citizenship rights in the Privileges or Immunities Clause, which stated that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. CONST. amend. XIV, § 1. If the Amendment had been intended to protect the privileges or immunities of citizenship against the federal government, it could have easily used the language “[n]o State nor the federal government,” as the Fifteenth Amendment would shortly do. Instead, the language of the Fourteenth Amendment makes perfect sense. The first sentence of the Amendment, the Citizenship Clause, indicates who is a citizen (persons born or naturalized in the United States); the second sentence, in the Privileges or Immunities Clause, indicates what their rights are (no state may abridge the privileges or immunities of citizens).
Second, the historical context for the Fourteenth Amendment is also informative. The Thirteenth Amendment, which had prohibited slavery, had failed to provide a firm foundation for the Civil Rights Act of 1866. While some Republicans had argued that not being a slave meant possessing basic civil rights, others argued that slavery referred to a specific institution and that one could be free of the bondage of chattel slavery without enjoying basic civil rights. One reason to pass the Fourteenth Amendment was to place the Civil Rights Act on a secure constitutional footing in a way that the Thirteenth Amendment had failed to do. But to rely on an inference that the mere status of citizenship conferred basic civil rights was similar to relying on the inference that the absence of slavery conferred such rights. Such reliance on an unclear inference would have committed the same error that the enactors of the Thirteenth Amendment had, in an amendment intended to correct that error. It makes much more sense to see the Fourteenth Amendment enactors as spelling out the rights of citizens—protecting against states abridging their privileges or immunities.
It is also relevant that applying an equality requirement to the states, but not the federal government, reflected the world view of the Framers of the 14th Amendment. Based on their own experience leading up to the Civil War and during Reconstruction, they believed that the states were disposed toward abridging equality rights much more than the federal government was. I develop this point and explain why these Framers excluded the federal government from the equality requirement here.