The notion that constitutional and statutory language should be interpreted according to how it was publicly understood at the time of enactment has become such a mainstream view that even a legal progressive like Ketanji Brown Jackson paid obeisance to its importance during her confirmation hearing. It is therefore surprising that a text as important to American political and legal affairs as the 14th Amendment—often referred to as our Second Constitution—has not been the subject of a book-length analysis from such a perspective until the publication of The Original Meaning of the 14th Amendment.
Georgetown’s Randy Barnett and Evan Bernick of Northern Illinois University have here produced a superb, persuasive treatment of the 1868 constitutional amendment, focusing their energies on three sections of the text—privileges or immunities, due process of law, and equal protection of the laws. They set out to offer “a theory of the 14th Amendment’s original public meaning that honors the text and history” and to “articulate a novel strategy for implementing… ‘the gem of the Constitution’ in a way that is faithful to the goals of those who fought to make it law.” On both fronts, they succeed in rendering into plain yet elegant prose the arcane, jargon-filled legal concepts that otherwise suffuse the literature.
Barnett and Bernick begin by devising a sensible methodology. First, they strive to determine the original public meaning of a provision on the basis of its “letter,” or plain meaning. But if or when that plain meaning proves elusive, they identify the publicly accessible function or spirit of the provision. Finally, they interpret the provision in a manner consistent with its letter and designed to implement its function or spirit (or the broader function or spirit of the legislation or Constitution as a whole).
They then tackle the second paragraph of the Fourteenth Amendment, which declares that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Marshalling evidence from contemporaneous legal, political, and journalistic sources, they conclude that civil rights “that protect the pre-political natural rights of all persons,” such as public schooling and jury service, were enshrined in the amendment at the time of its ratification and represent a fixed “floor.” Other rights, such as universal adult suffrage, fell under its ambit later and represent a “ceiling” that, over time, can be raised.
The authors provide ample support for their thesis by tracing the evolution of civil rights from pre-revolutionary discussions of abolition through the vigorous debates of the Civil War and into the fraught deliberations of the Reconstruction Era. After the Civil War, legislators and legal scholars frequently sparred over whether a state was obligated only to ensure comity, i.e., guaranteeing a citizen of another state the rights to which she was entitled in her home state, to enforce only the rights enumerated in the first eight amendments to the Constitution, or to vindicate all fundamental rights possessed by all American citizens.
How can we determine the point at which a later-derived, typically political right becomes sufficiently entrenched to merit constitutional protection? Barnett and Bernick suggest that once citizens in a supermajority of states have enjoyed such a right for at least a generation, it “ought to be presumptively a privilege of U.S. citizenship.” This formulation represents a helpful middle ground between living constitutionalists, who never met a faddish, recently discovered “right” that they didn’t want to enshrine as fundamental, and jurists such as Antonin Scalia, who derided the privileges-or-immunities clause as “the darling of the professoriate.” (Robert Bork deemed it a mere “inkblot” and “dead letter.”)
The authors next interpret the amendment’s third paragraph—“Nor shall any State deprive any person of life, liberty, or property, without due process of law”—to require that lawmakers ground their legislation in factual analysis and that courts apply appropriate burdens of proof in examining the substance of those measures to determine whether a legislature has overstepped its bounds. This concept differs subtly but crucially from the modern notion of “substantive due process,” which seeks to identify “substantive rights deserving of heightened judicial protection” and has mushroomed into a catchall for flavor-of-the-month entitlements. It also expands upon the more limited interpretations promulgated by some contemporary originalists who favor, for example, restricting its reach to enjoin the retroactive application of criminal punishment.
Barnett and Bernick ground their analysis in precedent, including a 1798 case in which Supreme Court Justice Samuel Chase proclaimed that “an act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority,” along with similar pronouncements from Chief Justices John Marshall and Roger Taney alike. They find that “due process of law” requires courts to police and curtail legislatures’ occasional trespasses on citizens’ fundamental rights.
Finally, the authors turn to the equal-protection clause, which forbids each state to “deny to any person within its jurisdiction the equal protection of the laws.” They believe this requires state governments to enforce equal-protection rules, including against private actors, and imposes a “duty to provide people with equal access to the remedial processes of the courts.” During congressional discussions about the amendment in 1866, Democrats insisted it apply only to federal legislation, but Republicans, led by Representatives John Bingham of Ohio and John Mann of Pennsylvania, persuasively maintained that the equal-protection principle encompassed a responsibility “to see to it not only that the laws are equal, affording protection to all alike, but that they are executed, enforced.”
However, Barnett and Berwick argue, the equal-protection-of-the-laws clause has not been and should not be understood as a general matter to prohibit racial, religious, or gender discrimination writ large. It only forbids unequal treatment of the law. Instead, they channel the “antisubjugation spirit” of the clause to define it as providing “an equality in the protection of civil rights that are adjacent to natural rights.” For instance, they contend that both the 2009 federal hate-crimes statue and the 1994 Violence Against Women Act can be justified on grounds of the equal protection of the laws, and they chide the Supreme Court for engaging in an “erroneous textualist and originalist interpretation” of the clause when it struck down parts of the latter.
Ultimately, through their careful, measured analysis of the 14th Amendment, Barnett and Bernick showcase the richness and texture of public-meaning originalism in an accessible manner that even die-hard legal progressives should respect, if not necessarily adopt. Their sensitive treatment of privileges, immunities, due process, and equal protection highlights how even distinguished originalists can and do disagree on precisely how to interpret and construct rules of legal decision-making, thus underscoring both the suppleness and importance of the originalist approach. The methodology Barnett and Bernick apply to the 14th Amendment nobly and meticulously seeks to ensure that we “systematically and adequately protect rights that can be derived from a theory of human nature and the conditions under which human beings can flourish in society with others.”
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