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Lash on the Fourteenth Amendment

In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause.

One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written several articles on the Amendment that culminated in the publication of a book. On this site, Kurt has written several posts defending his interpretation of the Amendment. Kurt defends a view that I used to hold, but no longer do: that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States. Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation. (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)

Adequate theories of the original meaning of the 14th Amendment must do several things. Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional. 

One of the strengths of Kurt’s theory is that it gives a straightforward account of the text of the Privileges or Immunities Clause. The Clause provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Under Kurt’s view, these “privileges or immunities” refer to the rights enumerated in the U.S. Constitution. This is a very plausible reading of the language. And Kurt provides some evidence in favor of it from the historical record.

Another attractive feature of this reading is that it provides a clear indication of what these rights are. Other interpretations of the Clause have struggled to define precisely what rights are protected.

The problem for this view concerns the second requirement of an adequate theory of the 14th Amendment: that it explain how the black codes were unconstitutional (and more generally how the Amendment imposes an equality requirement). Presumably, Kurt believes that the 14th Amendment’s Equal Protection Clause imposes that equality requirement. But there are serious problems with this interpretation as a matter of the original meaning.

As John Harrison, Chris Green (and many other authors) have argued, the Equal Protection Clause does not really do what modern interpretations say it does. The text of the Clause – which provides that no state “deny to any person within its jurisdiction the equal protection of the laws” – does not prohibit states from passing “unequal laws.” Instead, it identifies what was at the time a well-known legal category – the protection of the laws – and requires that it be equal. The protection of the laws referred largely to remedial matters – the laws and institutions that protected people’s rights (but for the most part not the rights themselves). Thus, the Equal Protection Clause prohibited states from not protecting the rights of the former slaves (and other groups). Moreover, there was a good reason for imposing this requirement: it specifically prohibited Southern sheriffs from looking the other way when militant groups lynched blacks.

But under this reading, the Equal Protection Clause does not require that a significant portion of substantive rights be equal. It is largely up to the states to decide what rights should be protected. And therefore there is no prohibition against state laws discriminating against the rights of blacks.

If the Equal Protection Clause had this meaning, then this is a serious problem for Kurt’s theory. Since the Privileges or Immunities Clause under his view does not protect the equality rights of citizens, Kurt appears to be left with no provision that imposes that equality requirement. And that would constitute a serious defect in an interpretation of the 14th Amendment.

Kurt has emphasized that the Comity Clause is included within the Privileges or Immunities of citizens of the United States, but that Clause protects against discrimination against out-of-state citizens, not against racial discrimination. Ryan Williams has argued that the 14th Amendment’s Due Process Clause imposes an equality requirement, but Ryan’s argument has been disputed by Chapman and McConnell, and has not been generally accepted.

Ultimately, Kurt’s theory requires that there be some basis for the equality requirement of the 14th Amendment. While perhaps Kurt will find historical support for such a requirement in the future, until he does, his interpretation of the 14th Amendment suffers from this serious defect.

Reader Discussion

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on December 22, 2015 at 12:12:38 pm

Mike:

You are correct that a proper understanding of the 14th is both critical, and given some recent judicial decisions, contentious. I wonder, however, if it were so contentious at the time of passage (leaving aside the advocates for the defeated south).

At first glance, a reading of the P&I Clause would not yield a requirement for equality (however one is to define equality). And further as it is specifically referring to the P&I of citizens of the UNITED STATES, it is clearly limited to only those privileges afforded or recognized by the federal Government and the US Constitution. As an example, citizens of the State of Alaska may be said to have the privilege of receiving annual payments from the state's petroleum trust fund (don't know actual name). To then assert that citizens of my state, Washington are being treated unequally is spurious. States may, have, and do provide different levels of P&I. Indeed, this was not only envisioned but intended. So it would appear that the 14th's P&I does not mandate such a conception of equality.
One can end the case there; but to do so is to do so at one's own peril. There is another clause in the Amendment - the 14th's "due process" process." Briefly, I, and I suspect others, find it rather difficult to imagine any state law that discriminates upon the basis of race as not infringing upon the rights to life, liberty or property. As an example, riding in the back of the bus is an infringement of personal liberty. Yes, the clause also mandates that due process be followed and one can argue that simple procedural due process would be sufficient to overcome the burden consequent to the denial of life, liberty or property.
Yet, we then come to the last clause of the 1st section and this imposes a requirement for "equal treatment"

I think that taken as a whole statement of, or protection for citizens of the United States, it is clear that the intention of the 14th was to assure / protect the right to equal treatment for all citizens. The first section must be, (ought?) read and construed with consideration of all pertinent clauses.

I suspect that some of the current contentiousness surrounding this Amendment may have more to do with the concept of "substantive" due process rather than with the text, or contemporaneous contextual reality at the time of the amendments passage. Many commenters / scholars are uneasy with the sheer elasticity of this concept / construct - and rightly so, to my mind - which has yielded SSM, legal rights to welfare payments, requirements that prisons pay for sex-change operations, etc to name but a few of the results of this doctrine.

Yet, to my reading not much was contentious about the 14th at the time of passage. Are we corrupting our interpretation by focusing our review based upon current elastic methodology? or is it simply an inability to agree upon the definition of equality - is it materially based or is it opportunity based?

Funny, if we restrict our understanding of the amendment to one clause (P&I) we are at peril; if we restrict ourselves to, or otherwise overemphasize, the "substantive" due process approach, we are also at peril. To a simple, non-legal mind, it would seem that a better approach is to look at the whole text and the historical context to find its meaning; hopefully from that understanding we may proceed with future (and proper) decision making.

Would like to know what Mr. Lash thinks as I too am awaiting receipt of his new book.

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gabe
on December 22, 2015 at 12:34:17 pm

Couldn't resist, kiddies!

Here now another example of the "elasticity" or equal rights. Is this what we find troubling about the new Black Robed conception of equality and rights?

http://thefederalist.com/2015/12/22/planned-parenthood-says-hiding-hiv-from-sex-partners-is-a-right/

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gabe
on December 22, 2015 at 12:56:11 pm

Mike, my current views, both as to history (taken from the articles) and theory (a brand new section) are explained in my latest book. I very much hope you have a chance to read it. (now available in paperback! http://amzn.to/1NJO7EM).

Although I disagree that an analysis of history has to "do" anything besides correctly analyzing the historical record, I can certainly understand your puzzlement about equality and the Fourteenth Amendment. That will be the subject of a brand new paper which you have invited me to present at the Originalism Conference this coming February!

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Kurt Lash
on December 22, 2015 at 14:03:52 pm

As I recall, Professor Harrison relied upon a relatively narrow definition of the word "protection" that covered remedies plus a narrow set of substantive rights that addressed actual physical protection of person and property. But there is plenty of historical evidence of broader scope. For example, consider the words of Brigadier General James S. Brisbin speaking at a civil rights rally in Lexington, Kentucky on July 4, 1867 (quoted approvingly by Charles Sumner in the U.S. Senate :later in 1867):

"It is a principle of nations that allegiance and protection go together, the one being the consideration of the other. As we claim allegiance from the blacks, we are bound to accord them full protection in all their rights as citizens, both civil and political."

So equal protection very plausibly applies to all rights of citizens, both civil and political. It's true (as Harrison pointed out) that William Blackstone suggested in the 18th century a very narrow technical meaning of the word "protection" but of course there were broader non-technical meanings of that word then and during the nineteenth century; even Blackstone's technical meaning was challenged in his own time, e.g. by Jeremy Bentham who thought that the remedial part of a law is not the only protective part of the law (“we must have the whole law to protect us”).

But by far the most compelling evidence that the country viewed the word "protection" broadly during the framing and ratification period of the 14th Amendment is the widely known fact that the first draft was rejected because it would have given Congress a virtually complete police power over the states, and that first draft only dealt with protection. Congressman Robert Hale was the lead opponent of the first draft of the 14th Amendment, and he said on the floor of the House that the first draft would override “all State legislation, in its codes of civil and criminal jurispru-dence and procedure, affecting the individual citizen. . . .” The first draft said: “Congress shall have 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 in the several states; and to all persons in the several states equal PROTECTION in the rights of life, liberty, and property.” CONG. GLOBE, 39th Congress, 1st Sess. 813 (1866) (emphasis added).

So the word protection had a much broader meaning, I think, than Professors Rappaport and Harrison have yet recognized.

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Andrew Hyman
on December 22, 2015 at 14:21:03 pm

P.S. I should also mention Professor Harrison's reasons for picking a narrow rather than broad meaning of the word "protection". As I recall, a primary argument for doing so was that otherwise the word "protection" would allegedly be superfluous in the clause, which could (he believed) just say no state shall deny the "equality of the laws" or "equal laws" or something like that. But the problem is that equal laws are no guarantee of equal enforcement. Congressman Job Stevenson put it this way in 1871: "unexecuted laws are no protection". The word "protection" therefore serves a vital purpose in the clause, even if it has a broad meaning.

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Andrew Hyman
on December 22, 2015 at 15:15:58 pm

Too broad a subject to deal with effectively in limited space. Suffice it to point out that the framers of the Amendment were trying to provide the freed men with protection regarding a 'limited" set of fundamental rights (see the Civil Rights Act of 1866) and not attempting to make them equal to whites in all respects. For example, the States were still allowed (albeit with the result of paying a political price) to deny them the franchise because of their race. This wasn't corrected until the 15th Amendment.

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Willmoore
on December 22, 2015 at 15:54:02 pm

There are a couple different ways to look at the Fifteenth Amendment.

One way to characterize the 15th Amendment is to say that the "protection" in the 14th Amendment does not extend to political rights such as the right to vote, but I think SCOTUS has long since rejected that view; a state law that bars black people from running for governor would surely be struck down (notice that the 1867 quote I gave above from General Brisbin does explicitly include political rights within the word "protection").

Another way to characterize the 15th Amendment is a bit more complex, but probably more accurate. The Equal Protection Clause (EPC) can be divided into two parts: first, states must provide the equal protection embodied in their state laws; and, second state must provide the equal protection that federal courts find in federal laws applicable against the states. The first part is only about enforcement, and does not limit the laws that a state can make. The second part does limit the content of laws, but it is dependent upon action by Congress. In stark contrast, the 15th Amendment grants blacks the right to vote regardless of what some future Congress may want.

That's my reading anyway.

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Andrew Hyman
on December 22, 2015 at 16:47:24 pm

I bought hardback when I could have waited for paperback. Darn.

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Andrew Hyman
on December 22, 2015 at 16:59:45 pm

the hardback was cheaper on Amazon - and it is now shipping!

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gabe
on December 22, 2015 at 17:18:12 pm

"The second part does limit the content of laws, but it is dependent upon action by Congress. In stark contrast, the 15th Amendment grants blacks the right to vote regardless of what some future Congress may want. "

I rather like this formulation, however,

Would this not indicate that there were "intended" limits upon the particular conception of equality contemplated by the drafters of the 14th Amendment?

A question: Prior to the passage of the 15th amendment, would it (was it?) be possible for a freedman denied the ballot to have prevailed in court? Absent Congressional (or action by the Federal Judiciary) would these political rights have been recognized?

Perhaps, the answer to this question may shed light on the debate about the limits or extent of the equality provided under the 14th?

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gabe
on December 22, 2015 at 17:40:05 pm

Prior to the Fifteenth Amendment, voting rights were covered primarily by Section 2 of the 14th Amendment. So voting rights were different from other political rights.

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Andrew Hyman
on December 22, 2015 at 21:53:11 pm

Yes, but it was still legally permissible to deny the ballot provided that the state would accept a reduction in the population base upon which representation was predicated.

So clearly you are right - voting rights were different. And that is my question: To what extent does this *permissible* curtailment of the ballot reflect upon the drafters understanding of equality and its expanse?

BTW: I am not trying to be argumentative; rather, I am hoping to see if these actions (non-actions) shed light on how far the drafters a) were willing to go, b) thought it proper to go and c) how far political realities would allow them to go.

Anyway, as always thanks for the kind replies.

Merry Christmas / Happy Chanukah

gabe

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gabe
on December 22, 2015 at 23:17:48 pm

Professor William Nelson once said this about the Fourteenth Amendment: "section two could ... be interpreted either as a remedy for state violations of voting rights protected by section one or as an authorization for the denial of voting rights to blacks." I have not seen evidence as to which interpretation is closer to the truth, but I haven't looked for such evidence.

I do know that the Joint Committee on Reconstruction (which drafted the Fourteenth Amendment) believed that section two would help to ensure that "all would have, through the ballot-box, the power of self-protection.”

Happy Holidays to you too!

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Andrew Hyman
on December 23, 2015 at 09:24:22 am

Due Process applies to human persons.
Speciation occurs at conception, thus we can know through both Faith and reason, that regardless of ancestry, every son or daughter of a human person can only be a human person, that human persons exist in relationship as sons, daughters, brothers, sisters, husbands, wives, fathers, mothers, and that slavery, abortion, and identifying human persons according to sexual desire/inclination/orientation, by objectifying human persons and denying the essence of personhood, are a violation of Due Process, and thus our inherent Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be what God, The Ordered Communion of Perfect Love, intended.
"God Bless us one and all!"

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Nancy
on December 28, 2015 at 13:26:46 pm

"Thus, the Equal Protection Clause prohibited states from not protecting the rights of the former slaves (and other groups). Moreover, there was a good reason for imposing this requirement: it specifically prohibited Southern sheriffs from looking the other way when militant groups lynched blacks."

Yet even today, case law in the Fourth Circuit maintains that US Code 42 Sec. 1985, permitting civil suits against state officers for violation of civil rights, applies ONLY to persons of African descent. Thus, whites, Latinos, Native Americans, Pacific Islands, etc., do not have the right to civil redress against such officers. (It was this case law which permitted the judge presiding over several lawsuits by the Duke lacrosse players to toss out most of the complaints in their civil suits--effectively leaving them with no method of redress.)

However that is framed, it does not constitute Equal Protection; it effectively establishes a two-tiered system,
delineated by race (which is exactly what the Amendment was intended to prevent). Moreover, it re-establishes
the concepts presented in Dred Scot--that laws may be apportioned according to whom they were supposed to benefit, and could not be universally applied.

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Chavez

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