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The Original Meaning of Section I of Amendment XIV All in One Blog Post
Andrew Hyman

A primary purpose of Section One of the Fourteenth Amendment was to entrench, or establish a firmer constitutional basis for, various provisions in the Civil Rights Act of 1866.  The Citizenship Clause of the Fourteenth Amendment was modeled after the citizenship clause in the Civil Rights Act of 1866.  The framers of that statutory citizenship clause had worried that rights associated with statutory citizenship would be vague unless specified, and so they did specify them explicitly in that Act.  However, when it came time to write the Fourteenth Amendment later in 1866, those same legislators did not need to specify any rights of citizenship in the Fourteenth Amendment, because the whole-text canon of interpretation (described by the Eighth Circuit here) ensured that such specification of legal rights was already included elsewhere in the Constitution.  It is true that those older constitutional rights did not include all of the equality rights specified in the Civil Rights Act of 1866, but the Equal Protection Clause of the Fourteenth Amendment is broad enough to encompass every one of the equality rights listed in that Act; after all, the Act’s full title was “An Act to protect all Persons in the United States in their Civil Rights and liberties, and furnish the Means of their Vindication” (emphasis added).

With passage of the Fourteenth Amendment, the Citizenship Clause gave the freed slaves (and all other covered persons) benefit of every legal right that was already conferred by the federal Constitution upon white citizens, and Congress had probably never before the Fourteenth Amendment even attempted to define U.S. citizenship where it explicitly was mentioned in the Constitution (i.e. in the clauses regarding eligibility for federal office).  The Equal Protection Clause ensured that the freed slaves could also benefit from the equality rights specified in the Civil Rights Act of 1866.

The Equal Protection Clause has been correctly interpreted to extend way beyond matters of race (the clause does not mention race) but has been incorrectly interpreted in a way that shuts out Congress which was not the clause’s original meaning.  As Jonathan Mitchell (at pp. 1285-86) and myself (at p. 81) have both emphasized, the clause requires a state to provide equal protection “of the laws” rather than merely “of its laws,” and so federal statutes were meant to play a substantive role, alongside the judicial role of ensuring that Congress does not exceed its bounds.  If and when Congress does nothing under this clause, then a state is merely required to provide whatever meager equal protection its own laws may require, but Congress has implied power to ensure that whatever protection a state provides is provided equally.  Unfortunately, judges have written out the last three words of the clause, as Judge Jack Weinstein once inadvertently explained: “The Fourteenth Amendment to the United States Constitution provides that no state may deny equal protection to any person within its jurisdiction.”

As for the Privileges orImmunities Clause written in 1866, it simply gave to all U.S. citizens a guarantee that the rights conferred by the Citizenship Clause would bind the states, and not just the federal government.  In other words, the Citizenship Clause already implicitly guaranteed that the federal government would give people who are entitled to U.S. citizenship the "privileges or immunities of citizens of the United States," and the message of the next clause is simply that states must give them as well.  Unfortunately, the U.S. Supreme Court eventually construed this to mean that states must respect free speech only insofar as federal politics are being discussed, and must respect gun rights only insofar as the guns are used to carry out federal citizenship responsibilities, et cetera.  Taken to its logical conclusion, you may pray so long as you are praying for your federal government.  That absurd sort of limitation on Bill of Rights freedoms has no basis in anything anyone ever said during the period from 1866 to 1868 when the Fourteenth Amendment was drafted and ratified.

One occasionally hears that the Privileges or Immunities Clause does not include constitutional rights of persons, but by 1866 it was well-settled that the analogous Privileges and Immunities Clause of Article IV (sometimes called the Comity Clause) entitled visiting citizens from out-of-state to all fundamental rights of in-state citizens, without subtracting fundamental rights of in-state residents who were not citizens.  One also sometimes hears that the Privileges or Immunities Clause includes the vast array of unenumerated federal constitutional rights that citizens enjoy vis-à-vis the federal government in every state because of the limited nature of federal power, but actually those rights (and also certain enumerated constitutional rights that only apply within the states) are not enjoyed vis-à-vis the federal government in areas of plenary federal power such as the District of Columbia, and so they cannot be among the privileges or immunities of citizens of the United States.  Further, one sometimes hears that the Privileges or Immunities Clause includes a right to travel, but actually the Citizenship Clause (in particular its grant of state citizenship) reinforces the Comity Clause which grants to citizens visiting from out-of-state the same rights of ingress and egress as in-state citizens enjoy.  Notice that the Comity Clause does not apply to places like the District of Columbia, so it is not a nationwide federal legal right, and therefore is not a privilege or immunity of citizens of the United States; this clause was on shaky ground after the U.S. Supreme Court suggested in Kentucky v. Dennison (1861) that a state's compliance with Article IV may sometimes be optional, but the ability of Congress to enforce this clause was assured by Section 5 of the Fourteenth Amendment in conjunction with the Citizenship Clause’s grant of state citizenship (which impliedly includes the legal rights of state citizenship already contained in the whole text of the Constitution).

Finally, this brings us to the Due Process Clause, which of course replicated a clause in the Fifth Amendment.  That clause of the Fifth Amendment was obviously not incorporated against the states in 1868 via the Privileges or Immunities Clause as to non-citizens, and even as to citizens the Privileges or Immunities Clause did not prevent states from violating Bill of Rights liberties by methods other than making or enforcing laws.  That explains why the Due Process Clause was added, but does not explain what it means, which is a relatively easy mystery to solve.  

Originally, in England where this clause originated, “due process of law” meant judicial proceedings that are owed according to the law of the land, i.e. according to common law, customary law, or statute law (which was supreme).  But there were some misunderstandings about this subject in America during the Confederation period, and it came to be accepted that “due process” also meant judicial “procedures” (a narrower concept than judicial “proceedings” which may include substantive decisions) that are owed according to principles of liberty and justice (a broader concept than principles embodied in the law of the land).  The old English meaning and the newer American meaning both became accepted by the U.S. Supreme Court prior to the Civil War (instead of the word “procedure” the Court used the equivalent term “modes of proceeding”), but neither the Supreme Court nor the larger legal community as of 1866 predominantly accepted the hybrid notion pushed by some libertarians and state judges that “due process” should also mean substantive judicial proceedings that are owed according to principles of liberty and justice.  That latter hybrid notion, which is at once broader than the old English rule-of-law meaning and also broader than the procedural American meaning, ultimately caught on decades after the Fourteenth Amendment was adopted.  We are presently suffering with that hybrid doctrine (sometimes called “substantive due process”), and the judicial supremacy it implies, not only because of the gutting of the Privileges or Immunities Clause, but also because of either a mistaken belief that Chief Justice Taney employed such a doctrine in the infamous antebellum case of Dred Scott v. Sandford (1857), or because of a mistaken belief that Taney's alleged use of that doctrine should now be emulated.