Impact of the 14th Amendment
on the Bill of Rights
by Herbert W. Titus
PRIVILEGES AND IMMUNITIES CLAUSE
From 1833 until 1871 the Supreme Court’s holding in Barron v. Baltimore, 32 U.S. (7 Pet.) 24 (1833) went unchallenged: The Bill of Rights applied only to the general government. The States were to be limited by the bills of rights in the several State constitutions, except as explicitly provided for in the original U.S. Constitution.
Following the Civil War, however, Congress sought to extend the reach of the U.S. Constitution to the States. In 1865, the 13th Amendment outlawing slavery and involuntary servitude was ratified.
But the 13th Amendment did not bring to the newly freed slave class the same legal benefits as was enjoyed by white citizens. Various States enacted Black Codes depriving the Freedmen of their basic common law rights, such as, to purchase and own real property, and denying to them statutory and constitutional benefits, such as, the right to give testimony in court. Slaughter- House Cases, 83 U.S. (16 Wall.) 36, 70-71 (1873).
At first, Congress responded to these actions by passing the Civil Rights Act of 1866, which would have repealed the Black Codes as “badges of slavery” forbidden by the 13th Amendment. But President Andrew Johnson vetoed this bill as not authorized by the Constitution.
Even before Congress passed the bill, doubts about its constitutionality led Representative John A. Bingham of Ohio to introduce the first version of what later became the 14th Amendment.
Adoption of the 14th Amendment
Bingham’s initial proposal authorized Congress to enact “all laws which shall be necessary and proper to secure the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” Cong. Globe, 39th Cong., 1st Sess. 813, 1034 (1866).
Two months later, and after extensive debate, Bingham’s proposal was reported out by the Joint Committee on Reconstruction with substantial modifications. First, the proposal was changed from an affirmative grant of power to Congress to a negative limit on the States: “No state shall … abridge … nor shall any state deprive … [or] deny ….” Congress was authorized to act, but only with laws “appropriate” to enforce the specified limits upon the States. Civil Rights Cases, 109 U.S. 3 (1883).
Second, the proposal was amended to specify more precisely the “privileges and immunities” contained in the Bingham draft. Instead of protecting “all privileges and immunities of citizens in the several states,” the new version protected “the privileges or immunities of the citizens of the United States.”
Finally, the proposal was changed by adding a due process clause, identical to the one already in the Bill of Rights, but this time as a limit on the States.
In this form, the 14th Amendment passed the House. Later, the Senate gave its approval after adding an introductory first sentence defining the requisites for citizenship in the United States and m the States:
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.
The House concurred. The 14th Amendment was ratified on July 28, 1868. 5 years later, the United States Supreme Court had its first opportunity to state and apply the new Amendment’s guarantees.
Privileges and Immunities: States
In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the plaintiff butchers claimed that they had been denied their rights under the U.S. Constitution by a Louisiana statute granting to a named company the exclusive right to maintain a slaughter-house within a certain geographical area within the state.
The plaintiffs’ major claim rested upon the 14th Amendment’s prohibition against any state law that abridged “the privileges or immunities of the citizens of the United States.” They contended that one of the named privileges and immunities was the right to be free from any state-licensed business monopoly.
Prior to the 14th Amendment some, but not all, State constitutions included provisions in their bills of rights protecting the people from state-granted monopolies. Article XXIII of the 1776 North Carolina Constitution, for example, prohibited “perpetuities and monopolies” as “contrary to the genius of a free state.” On the other hand, the 1776 Virginia Constitution contained no such protection. See Sources of Our Liberties 356, 311-13 (R. Perry, ed. 1978).
If the plaintiffs in the Slaughter-House Cases succeeded with their claim under the privileges and immunities clause of the new 14th Amendment, then all of the States would be required to conform to the North Carolina standard.
This result would have unmistakably followed had the 14th Amendment contained Bingham’s original language granting to citizens “all privileges and immunities of the citizens in the several States.” Identical language had already appeared in Article IV, Section 2, and had been construed to include the “fundamental” right to engage in a lawful occupation subject only to “restraints as the government may prescribe for the general good of the whole.” Coifield v. Coryell, 6 F. Cas. 546 (1823).
Under Article IV, Section 2, however, constitutional protection was granted only when a State law denied such a right to an out-of-state citizen, while at the same time it guaranteed that same right to an in-state citizen.
But that was of no help to the Louisiana butchers in the Slaughter House Cases, for they were not out-of-state citizens and, therefore, did not come under the protection of Article IV, Section 2. They sought protection from their own State’s denial of what they claimed to be their fundamental right to engage in an occupation free from the grant by the State of an exclusive special privilege.
To accomplish this goal, they claimed that the 14th Amendment’s “privileges and immunities” included such a right, because Article IV’s “privileges and immunities” clause had been so construed. But the two clauses did not read exactly alike, one referred to the privileges and immunities of citizens of the United States and the other to the privileges and immunities of the citizens in the several states.
Privileges and Immunities: United States
A majority of 5 justices in the Slaughter-House Cases considered this difference in language decisive.
First, the majority noted that the language of the 1st sentence of the 14th Amendment recognized two classes of citizens in the United States, citizens of the United States and citizens of the State. Because one person could be a citizen of both the United States and of the State in which he resided, he had two sets of privileges and immunities, those arising out of his United States citizenship and those arising out of his State citizenship. The new 14th Amendment gave protection only from State action abridging those privileges and immunities linked to the plaintiffs’ citizenship in the nation, not to their citizenship in Louisiana. Id., 83 U.S. at 72-75.
Second, the majority pointed out that the original Bingham language was found in Article IV, Section 2 of the Constitution’s original text. Had the framers of the 14th Amendment desired to extend the protection found in Article IV, Section 2 to that found in the 14th Amendment, the majority asserted, then they would have used the same language. But they did not. Id., 83 U.S. at 75-77.
Finally, the majority noted that the plaintiffs’ claim, if it prevailed, would change dramatically the federal structure of the Constitution. No longer would the States be governed by their own Bills of Rights, but by the United States Bill of Rights which had been originally designed to apply only to the general government. The majority maintained that such a profound change should not be effectuated “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Id., 83 U.S. at 77-78.
Justice Stephen Field, one of the 4 dissenters, excoriated the majority for having construed the “privileges and immunities” clause in such a way as to render it a “vain and idle enactment.” He claimed that the privileges and immunities that citizens enjoyed as members of the national polity had been protected from state infringement by the Constitution from the beginning. He, therefore, concluded that “no new constitutional provision was required to inhibit such interference.” Id., 83 U.S. at 96.
This was reason enough, argued Field, to read the privileges and immunities clause to include the identical rights encompassed by the phrase, “all privileges and immunities of citizens in the several states,” even though the language used in the clause referred to “the privileges or immunities of the citizens of the United States.”
The majority demurred. They claimed that there were several “national privileges and immunities” that were distinct from “state privileges and immunities.” They provided a partial list, including the right of the people to assemble, but they did not explain why these privileges and immunities had not been protected from state interference prior to the 14th Amendment. They just assumed that such protection was not there before its ratification.
This assumption was made because, in 1873, the Court had not yet conceded to Congress authority to regulate almost any subject, if it were found to be in the nation’s economic interest. That view of the sweeping scope of national power did not appear until the 1940’s when the High Court finally ruled that the New Deal was constitutional. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942).
In 1873, Congress still could not legislate for the purpose of establishing a national standard of health, safety, or morals, much less a set of national fundamental rights. Again, a more expansive view of national legislative power would not come until the early 1900’s. See Champion v. Ames, 188 U.S. 321 (1903).
Had the majority in the Slaughter-House Cases bothered to explain its assumption, they could have pointed out that the First Amendment prohibited Congress from making any law “abridging … the right of the people peaceably to assemble”, but granted no authority to Congress to guarantee, or otherwise facilitate, the exercise of that right. Congress, being a legislature of enumerated powers, could not claim the power to protect the right of the people to assemble peaceably, for that was part of the police power that remained in the States. Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829).
Given this original understanding of the limited powers of Congress, the “privileges and immunities” clause, as construed by the Slaughter-House majority, was not a “vain and idle” enactment.
Due Process of Law
The Slaughter-House majority opinion limiting the scope of the 14th Amendment’s privileges and immunities clause has never been modified or overruled. But the plaintiffs in the Slaughter- House Cases did not just rely on the “privileges and immunities” clause. They also claimed that Louisiana grant of monopoly privilege “deprived” them of their “property” without due process of law.
Without analysis or discussion, the Court dismissed the plaintiff’s due process claim with only one sentence:
[U]nder no construction of that provision have we ever seen, or that we deem admissable, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of their property within the meaning of that provision.
This summary disposition provided opportunity 24 years later to a new Supreme Court which struck down in the name of due process a Louisiana statute intruding upon the fundamental right of the liberty of contract. See, e.g., Allgeyer v. Louisiana, 165 U.S. 578 (1897). It would also leave the “open door” for the Warren Court to work its constitutional revolution in the 1960’s whereby it incorporated through the due process clause almost all of the Bill of Rights and applied them to the States.
THE DUE PROCESS CLAUSE
Prior to the Civil War, the United States Supreme Court was urged to try “its hand at resolving the conflict” over slavery in the United States. D. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics 192-94, 206-08 (1978).
In 1857, Chief Justice Roger B. Taney delivered the opinion of the Court in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) in which he pronounced that a Negro slave could not be a citizen of a state “within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts ….” Id., 60 U.S. at 427.
In addition, Taney ruled that the United States Congress could not deny to a slaveholder the right to take and keep slaves in any territory of the United States:
[An] act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name due process of law…. Id., 60 U.S. at 450.
With this stroke of his pen, Taney decreed that the Congressional compromise prohibiting slavery in the territory north of Missouri was unconstitutional.
Instead of resolving the slavery crisis, the Dred Scott decision intensified it, ultimately propelling Abraham Lincoln to the presidency and the secession of the South.
Following the defeat of the Confederacy, Congress proposed and the States ratified the 13th Amendment abolishing slavery. In an effort to provide additional constitutional guarantees to the newly freed slave class, Congress proposed and the States ratified the 14th Amendment.
Dred Scott Is Overruled
The first sentence of the first section of the 14th Amendment was designed specifically to overturn the ruling in Dred Scott that a Negro slave could never be recognized as a citizen under the United States Constitution. As the majority in the Slaughter-House Cases observed, the first sentence made “all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit [of no doubt].” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1873).
But what of the Dred Scott ruling that to deny to the owner of a slave his property interest in that slave, was a deprivation of the slave owner’s liberty and property without due process of law? By securing the ratification of the 13th Amendment, had not Congress done just that? Or was the Dred Scott opinion in error on that point?
Chief Justice Taney neither cited precedent nor provided reasons for ruling that the due process clause prevented Congress from outlawing slavery in the Territories. Prior to Dred Scott, the American courts had assumed, with one exception in New York, that the due process clause simply did not address the power of civil government to define the substance of “life, liberty and property.”
Indeed, the question of the legality of slavery, itself, had been left by the United States Constitution to the States to be resolved by statute or by state constitution. While slavery was considered to be contrary to the “law of nature,” the Supreme Court had no jurisdiction to enforce that law. The Antelope, 23 U.S. (10 Wheat.) 66, 120-22 (1825).
On the other hand, it had been assumed that Congress could abolish slavery if it had jurisdiction to act. When Chief Justice Taney ruled otherwise, in the name of the due process clause, his ruling would have also prevented the States from abolishing slavery, for almost every State constitution contained a due process clause identical to the one in the Bill of Rights. That would have been unthinkable, for everyone conceded that the States could abolish slavery within the geographic territory over which they exercised jurisdiction. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 534-64 (1857) (Justice McLean dissenting).
Given this assumption that the Dred Scott ruling on the due process clause was wrong, there was no need for the 14th Amendment to overrule that part of the case.
Due Process of Law: Stated
When the plaintiff butchers in the Slaughter- House Cases, 83 U.S. (16 Wall.) 36 (1873) invoked the due process clause in support of their claim that Louisiana could not take away their property or liberty to enter the slaughterhouse business as they saw fit, the Court majority recognized that the plaintiffs were making the same kind of argument as the slave owner had made in Dred Scott.
In Dred Scott, the slave owner claimed that the due process clause protected his substantive right to own slaves. In the Slaughter-House Cases, the butchers claimed that the due process clause protected their substantive right to engage in a lawful business. The Court majority in Slaughter- House simply rejected the butchers’ argument as inadmissable, as one would expect of the Court given “its aversion to the Dred Scott decision.” Brest & Levinson, Processes of Constitutional Decision Making 276 (1992).
But the Court majority in Slaughter-House found the butchers’ claim not only inadmissable, but also unsupported by any valid precedent.
At the time, the leading Supreme Court precedent, applying the due process clause, was Murray v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856). That case posed the question whether the United States could, pursuant to a distress warrant, seize property from a customs official to satisfy an alleged debt arising out of his official duties without first giving the official a hearing in a court of law.
Clearly, the claim raised in the case presupposed that the government could seize the property from the official if the charge was true.
But it was claimed that no seizure of the property could be made, consistent with the due process clause, unless the procedural safeguards available in a judicial proceeding were afforded prior to the seizure.
The Supreme Court responded by acknowledging that the constitutional protection offered by the due process clause was procedural only. First, it noted that historically “due process of law” was identical to the phrase, “the law of the land” as set forth in the Magna Carta. It further noted that this language appeared in the same clause of the Magna Carta as the jury trial guarantee, signaling that it was procedural in nature, not jurisdictional or substantive. Id., 58 U.S. at 276.
Second, it assessed whether the summary process invoked by the government in the case was the “process due” or whether some form of “judicial process” was required. In addressing this question, the Court did not even hint at the possibility that the due process clause concerned anything but procedure. Id., 58 U.S. at 276-86.
In the Slaughter-House Cases, the plaintiff butchers did not invoke the due process clause to complain about the procedure by which the slaughter-house monopoly had been granted, but rather the substantive appropriateness of the monopoly, itself.
Likewise, the due process claim in Dred Scott had nothing to do with the process by which a slave owner could be deprived of his slaves. Rather, it was invoked and applied to prohibit Congress from outlawing slavery altogether. It was not the fairness of the process by which Congress had acted that was at issue, but that Congress had acted at all.
Given the textual and historic understanding that the due process clause concerned only the fairness of the process by which the government acted, and that Dred Scott was a thoroughly discredited decision, the Slaughter-House majority dismissed the plaintiff butchers’ due process claim summarily and without explanation or discussion.
Due Process of Law: Perverted
Had this ruling in Slaughter-House prevailed, the Supreme Court could never have justified applying to the states any of the protections of the First Amendment, because it contains guarantees that are substantive or jurisdictional in nature.
But the majority view did not prevail. “By the end of the 19th century, a majority of the Court embraced substantive due process; and in the first three decades of the 20th century the Court applied that doctrine frequently.” Gunther, Constitutional Law 410 (12th ed. 1991).
By the 1940’s, however. the Court repudiated substantive due process in cases involving economic regulations or “property” interests, but continued the doctrine in cases involving “liberty” interests, including the freedoms of speech and assembly. Contrast, e.g., Lincoln Federal Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) with Kovacs v. Cooper, 336 U.S. 77 (1949).
The Court has never offered a satisfactory answer to explain why the due process clause offers “substantive” protection for “liberty” interests, but none to “property” interests. Consider B. Siegan, Economic Liberties and the Constitution (1980). Nor has it ever provided a textual historical argument that the due process clause goes beyond the procedural meaning given to it by the Court in the 1856 Hoboken case.
To the contrary, the Court has used the due process clause as a catch-all for all of the First Amendment substantive protections (as well as the so-called right to privacy) in total disregard of the text, context, and history of that clause and of the guarantees that it allegedly “incorporates.”
Does this mean, then, that the Supreme Court’s application of the Bill of Rights to the States is completely illegitimate? To answer this question one must reexamine the 14th Amendment’s privileges and immunities clause and the relationship of that clause to the Bill of Rights.
THE CITIZENSHIP CLAUSE
From the date of the Declaration of Independence the people of the United States have held citizenship in two political entities, the United States and the States. This dual citizenship is reflected in the language of the original Constitution.
In setting the standards for eligibility for election to the United States Congress, a member of the House of Representatives must be “seven years a citizen of the United States” (Art. I, Sec. 2) and a member of the Senate must be “nine years a citizen of the United States” (Art. I, Sec. 3).
As for eligibility for the Presidency, one must be a “natural born citizen” of the United States, unless one was such a citizen at the time of the adoption of the Constitution (Art. II, Sec. 1).
With regard to State citizenship, Article III, Section 2 provides, inter alia, that disputes “between citizens of different States,” may come before federal courts created pursuant to Article III, Section 1. Moreover, Article IV, Section 2, Clause 1 provides that the “citizens of each state shall be entitled to the privileges and immunities of citizens in the several States.”
U.S. Citizenship: Authority to Confer
While the original Constitution recognized two kinds of citizenship, it did not define them. The terms of eligibility to hold the office of the Presidency did, however, contemplate that one could become a “citizen of the United States” by “natural” birth. In doing so, the Constitution recognized that there was a law of nature that governed one’s citizenship. Presumably, that law also applied to State citizenship, but that was left to the individual States.
In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), however, Chief Justice Roger Taney ruled that a State could not confer the rights of state citizenship on a person so as to qualify him as eligible to sue as a State citizen in the federal courts. Rather, the privileges of state-conferred citizenship were only those that could be exercised within the territorial boundaries of the conferring State. Id., 60 U.S. at 405.
Justice Benjamin Curtis filed a vigorous dissent, maintaining that the “Constitution has left to the States the determination what persons, born within their respective limits, shall acquire by birth citizenship of the United States ….” The only power in Congress, Curtis claimed, was the authority to naturalize foreign-born citizens, as provided for in Article I, Section 8, Clause 4 of the Constitution. Id., 60 U.S. at 582.
After the Civil War there was great concern that the Constitution did not sufficiently define citizenship for the newly freed slaves. So the first sentence of the 14th Amendment was written not only to overrule Dred Scott, but to bestow by constitutional command citizenship status in both the United States and in the States:
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.
U.S. Citizenship: Constitutional Significance
Of what significance was this constitutional conferral? Of first importance, it has provided constitutional protection for the native born citizen who cannot be involuntarily deprived of his citizenship. Such a citizen may not lose his citizenship, he may only voluntarily give it up by a clear and convincing act. Nowak, Rotunda, and Young Constitutional Law 626-27 (3d ed. 1986).
Second, it has established that one’s primary citizenship is that of the United States, not that of the States. Prior to the ratification of the 14th Amendment one’s United States citizenship was dependent on one’s State citizenship, as Justice Curtis demonstrated in his Dred Scott dissent:
When … the Constitution speaks of citizenship of the United States, existing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the same time of such adoption ….
That Government was simply a confederacy of the several States, possessing a few defined powers over subjects of general concern … [which did not include power] to act on any question of citizenship, or to make any rules in respect thereto. Dred Scott v. Sandford, supra, at 572.
After the 14th Amendment one could not be a citizen of a State unless he qualified first as a citizen of the United States. Now that United States citizenship had become primary, there was a need to insure that the “privileges and immunities” related to that citizenship would not be subordinated to the States.
Consequently, the first clause of the second sentence of the 14th Amendment was inserted in order to protect the privileges and immunities of United States citizenship from any State’s making or enforcing any law “which shall abridge” them.
The question became, what are the privileges and immunities of United States citizenship? In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court ruled that they were those “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” not those “which belong to citizens of the States as such.” Id., 83 U.S. at 79, 78.
U.S. Citizenship: its Application
The Court in Slaughter-House provided a short list of such privileges and immunities, including the “right to peaceably assemble and petition for redress of grievances” from the First Amendment to the Constitution. Subsequent to Slaughter- House, a Court minority concluded that this right to assemble was a right to come together to discuss national issues, not state and local ones. Hague v. CIO, 307 U.S. 496, 516, 517 (1939).
But can the right to assemble be bifurcated in this way and still be preserved from State abridgment? The right of the people to assemble cannot, by definition, be protected if a State may break up a peaceable assembly based on its assessment that the subject of the assembly is state and local, not national. Government regulation of the gathering of people even on property open to the public generally must be “content neutral” and limited to concerns regarding only “time, place, and manner.” See, e.g., U.S. v. Grace, 461 U.S. 171 (1983). As a matter of constitutional law, the subject matter of an assembly is for the people to decide, not for the governmental authorities. That is the very essence of the right.
An even more dramatic example of the impossibility of bifurcation may be drawn from the Second Amendment. If that Amendment protects the right of an individual to bear arms, then a State cannot ban the possession of guns without abridging the privilege of a citizen of the United States to bear arms. One simply cannot divide this right in two.
However, one can bifurcate the rights of defendants in criminal cases without such a spill-over effect. For example, denying to a defendant in a State criminal case the right to a jury trial in no way implicates the right of that same person should he be tried in a federal court on federal criminal charges. A State regime of criminal justice without jury trial can coexist with a national regime requiring such a trial. So denial by the State would not constitute an “abridgment” of the citizen’s national privilege.
This approach to the privileges and immunities protection afforded by the 14th Amendment would lead to national protection from State action abridging the privileges and immunities contained in the First, Second, and Third Amendments. On the other had, it would leave States to be governed by their own laws and constitutions in criminal and civil cases arising under State and local law. In other words, the guarantees in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments would not apply to the States.
This not only makes practical sense, but it also conforms with the text. The guarantee of freedom of religion, for example, requires “jurisdictional immunity from the power of civil authorities.” If a State intrudes on a matter of religion, that is, upon a duty owed exclusively to God, it abridges the immunity guaranteed in the Constitution.
Likewise, the guarantees of the freedom of speech, of the press, etc. are jurisdictional in nature. If a State intrudes on a civil matter that has been left with the people, it necessarily abridges the privileges guaranteed to a United States citizen in the U.S. Constitution. For example, no State may establish a licensing scheme governing the publication of ideas without abridging the national guarantee protecting the freedom of the press, the very essence of which is to prohibit the government from exercising editorial power over the people. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
With the ratification of the 14th Amendment, U.S. citizenship became paramount, but not exclusive. Under a proper reading of the text, only those privileges and immunities in the first three Amendments in the Bill of Rights are applicable to the States. By failing to apply the Second and Third Amendments and by applying almost all of the provisions of the Fifth through the Eighth Amendments to the States via the Due Process Clause, the Supreme Court has ignored the constitutional text in favor of a scheme of unitary citizenship in derogation of the Constitution.