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12/22/2015

Lash on the Fourteenth Amendment
Mike Rappaport

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 the Liberty Law Blog 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 so – 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 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 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 prohibiting 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 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.