Professor Akhil Amar on Congressional Power to Establish Fundamental Rights that Both States and Private Citizens Must Respect Andrew Hyman

Last month, as Mike Ramsey has noted, Yale Law Professor Akhil Amar had National Review pundit Ed Whelan as a guest on Amar’s podcast.  It was an interesting discussion, covering many issues, but I’d just like to focus here on one bit of it.  Toward the end of the podcast, Amar said this:  

 

I think Congress has broad power to protect women’s rights under the plain language of the first sentence of the Fourteenth Amendment and the last sentence of the Fourteenth Amendment, but you see precedent is a stumbling block for me but again if you’re a constitutional fundamentalist your allegiance is to the Constitution and not the precedents.

 

I’ll give Professor Amar an A+ on the last part, but not on the first part.  In context, Amar was speaking about Congress protecting women’s unenumerated rights against violation by states, because women are U.S. citizens.  I agree entirely that Congress has power to protect women’s rights from violation by states, insofar as Congress is acting under its enumerated powers, or is enforcing enumerated constitutional rights, but Amar is saying much more.  His argument is that the first and last sentences of the Fourteenth Amendment are sufficient to empower Congress to make state actors as well as many private actors respect whatever rights of citizens that Congress deems in good faith to be fundamental, and I disagree with Professor Amar on that point. Here are the first and last sections of the 14th Amendment, with the Citizenship Clause and the Enforcement Clause in bold: 

 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws....The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

As I understand Professor Amar, the two bolded sentences are enough to give Congress power to override state laws (and many private parties too) that infringe upon whatever rights that Congress honestly thinks should be considered fundamental, so long as the beneficiary of those rights is a U.S. citizen.  There are some major problems with that interpretation, though, and it asks the Citizenship Clause to do way too much.  Professor Amar has written that ordinary Americans in 1866-1868 “understood Taney’s opinion [in Dred Scott] as the paradigm case of what this sentence aimed to repudiate,” but it’s much more likely that ordinary Americans viewed several sentences collectively in the Thirteenth and Fourteenth Amendments that way.  For example, the sentence banning slavery, and the sentence guaranteeing the equal protection of the laws, come to mind as very wonderful repudiations of Dred Scott as well. 

 

The Citizenship Clause lacks anything like the “no state shall” language later in the Fourteenth Amendment.  More than that, it lacks any prohibitory language at all, and is best understood as definitional; it is very different from the Thirteenth Amendment which prohibits quite a lot, so Professor Amar’s assertions (in a 1998 article) that Congress can broadly guarantee “the badges and incidents of ... citizenship” under the Fourteenth Amendment rest upon a tenuous analogy to the Thirteenth.  The Constitution gives various rights to citizens, and the Citizenship Clause just defines who those citizens are.  

 

Professor Amar has argued that the lack of “no state shall” language means the Citizenship Clause can be construed as a ban not just on fundamentally harmful state action, but also on lots of fundamentally harmful nongovernmental action, and as a ban on fundamentally harmful congressional action too.  It’s as though the Constitution included a clause that says “all nastiness to citizens is forbidden." I cannot see any textual distinction that could, as Amar suggests, immunize some nongovernmental behavior from the Citizenship Clause because it’s consensual and very private, but even if such a distinction is valid then Congress would still take over vast areas of criminal law that are currently dealt with locally, and thus responsively to the citizenry.

 

In the aforelinked 1998 article, Professor Amar acknowledged that, under the Fourteenth Amendment, “Congress can legislate rights against states, not private persons….”  Indeed, private persons unconnected to government are outside the scope of the first paragraph of the Fourteenth Amendment.  The first draft of that Amendment was voted down in Congress for exactly that reason.  And that’s the same reason why Professor Amar’s interpretation of the Citizenship Clause does not work: it would inevitably get Congress and the courts into the business of regulating nongovernmental behavior directly, given that it includes no state action requirement.  Professor Amar assures us (in a 2000 article) that the Citizenship Clause cannot authorize regulation of “truly private consensual relations that were outside the ambit of citizenship -- but could regulate larger nongovernmental systems of exclusion in places such as hotels, theaters, and trains.”  I am not assured by this assurance even if it is accurate, because control of lots of nonconsensual misconduct toward citizens would quickly become federalized, e.g. child abuse, murder, kidnapping, theft, and lots more behavior involving citizens who have not reached the age of consent.

 

The podcast that prompted this blog post was devoted largely to the issue of abortion.  Professor Amar was suggesting that Congress could establish a fundamental right to get an abortion even if the courts take a neutral position.  But, if Professor Amar's constitutional theory is correct, then Congress could instead naturalize the unborn child and give it a fundamental legal right to life.  In the aforelinked 1998 article, Professor Amar wrote the following:

 

[T]he most sensible reading of the Fourteenth Amendment would involve both courts and Congress in the task of protecting truly fundamental rights against states, with states generally held to whichever standard was stricter -- more protective of fundamental freedoms -- in any given instance.

 

But alleged fundamental rights often conflict with each other.  For instance, perhaps Congress might be pro-life while the courts are pro-choice.  Then who decides which is more protective of fundamental freedoms?  Anyway, the point is moot, because it’s widely and correctly recognized that “The Thirteenth Amendment is the only amendment that limits both individual and governmental actions.”  Ergo the Citizenship Clause doesn’t, which means the Citizenship Clause must be definitional only (given that it does not distinguish state action from other action).

 

I thank Professor Amar for pointing me to several books and articles via email.  I found them very thought-provoking, despite my criticisms here.