« Is Puerto Rico Unconstitutional?
Michael Ramsey
| Main | Textualism and Sexual Orientation Discrimination
Michael Ramsey »


The Speech of Jacob Howard, the Prevalent Rights Theory, and the Decision in Brown v. Board of Education
Earl Maltz

[Ed.:  For this guest post we welcome Earl M. Maltz, Professor of Law at Rutgers Law School.]

In a recent post, Andrew Hyman disputes the claim that originalists should adopt what Michael Rappaport describes as the prevalent rights theory of the Privileges or Immunities Clause of the Fourteenth Amendment.  However, Hyman fails to cite the explanation of the scope of section one that was given by Jacob Howard at the time that the amendment was introduced in the Senate.

For a number of reasons, Howard’s explanation is of crucial importance to any effort to understand the original meaning of section one. First, the speech provided the only really detailed analysis of the scope of section one during the congressional debates over the Fourteenth Amendment.  Second, Howard was not speaking only in his individual capacity, but rather as the official spokesperson for the Joint Committee on Reconstruction, which had drafted the amendment.  Finally, the speech was plainly not designed to convey the subjective intentions of the drafters.  Instead, Howard purported to describe the way in which he (a trained attorney whose legal abilities were greatly respected) believed that the language would be interpreted by the courts.

After giving a general explanation of the meaning of section one, Howard focused specifically on the relationship between section one and the right to vote.  The Republican members of the Joint Committee on Reconstruction had been deeply divided over the problem of how best to address the issue of suffrage in the Fourteenth Amendment.  At one point, a majority of the members of the Joint Committee had voted to report a proposal which would have provided that, after the year 1876 “no discrimination shall be made…as to the enjoyment by persons of the right of suffrage, because of race, color, or previous condition of servitude.”  However, it quickly became clear that such a prohibition would be unpopular with crucial centrist voters.  Thus, having become convinced that “the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race,” the committee voted to remove the suffrage provision from the amendment that was ultimately reported to the House of Representatives and the Senate for consideration.  Instead, the proposal that was reported contained a provision that penalized states that did not allow African-Americans to vote by reducing the number of representatives to which those states would be entitled in the House of Representatives.

Despite this action, the opponents of the proposed constitutional amendment continued to charge that the right to vote was one of the privileges or immunities of national citizens that was guaranteed by section one and that, if adopted, the Fourteenth Amendment would therefore impose a mandate similar to that which had been embodied in the deleted suffrage provision.  While admitting that he personally would have preferred that the suffrage provision had not been deleted, Howard felt compelled to respond to this claim.

In defending the view that section one would in no way limit the authority of the states to regulate voting rights, Howard did not make any specific reference to the distinction between political rights and civil rights that is widely-discussed in the literature dealing with the original meaning of the Fourteenth Amendment.  Instead, in an apparent effort to give a more precise meaning to the concept of “civil rights” to which other Republicans had referred, he distinguished sharply between “fundamental rights [that] lie at basis of all society” and those which are derived from “positive local law.”  Against this background, Howard insisted that section one did not limit state authority to regulate elections because the right to vote was “merely the creature of law.”

Among other things, Howard’s mode of analysis has profound implications for the claim that originalists should take the view that section one protects a right of access to public education.   Like the right to vote, public education exists only because taxpayer-supported schools have been created by state law.  Thus, the fact that, by 1868, the right to a public education had been ensconced in many or even most state constitutions was simply irrelevant for Fourteenth Amendment purposes.  Instead, because public education is “merely the creature of law,” under Howard’s theory, any claimed right of access to such education would be outside the purview of section one.    In short, unless one is willing to take the position that Howard misstated the original meaning of the relevant language, the claims of those who argue that the decision in Brown v. Board of Education is consistent with originalist theory are simply insupportable.


COMMENT BY ANDREW (October 16, 2019):  Thank you to Professor Maltz for his blog post.  I want to mention that the part of Senator Howard’s speech to which Professor Maltz refers was apparently revised and extended at a later time.  Here is how the Philadelphia Inquirer quoted that part of the speech as originally delivered:

The first section of this amendment, while conferring the rights I have enumerated, does not confer any right to vote.  The right of suffrage is not, in law, one of the privileges and immunities thus secured by the Constitution.  It has always been regarded in this country as the result of positive local law.  It has not been regarded as one of those fundamental rights lying at the foundation of our society, and without which people cannot exist without being slaves or subjected to a despotism.

The first two sentences seem to support an enumerated rights interpretation of the PI Clause; it is unclear whether the last two sentences alter that support, or instead merely explain why omission of the right to vote should not defeat the proposed Amendment.  Incidentally, Howard gave this speech before Senator Benjamin Wade asked for clarification of the PI Clause, which resulted in a prefixed Citizenship Clause.