The Objects of the Fourteenth Amendment

This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it.  But it is also important because it frames the organizing dichotomy of constitutional review.  The Constitution binds different governmental actors in different ways.  And judicial review of legislative action is fundamentally, structurally different from judicial review of executive action.  What the Court calls a “facial challenge” is actually a (broad and text-focused) challenge to legislative action.  What the Court calls an “as-applied” challenge is actually a (narrow and fact-focused) challenge to executive action.

So, it is essential to know which clauses of the Constitution bind which governmental actors.  Sometimes, happily, it is easy to tell, because some clauses are written in the active voice, with an explicit subject.  “Congress shall make no law … abridging the freedom of speech.”  “The Congress shall have power … To regulate Commerce … among the several States.”  Challenges under these provisions are challenges to legislative action.  They are inherently “facial” and do not turn at all upon specific facts that arise after the legislature made the law.  (Those facts might matter for preliminary questions, like standing, but they will not matter to the merits of the constitutional inquiry.)

Unfortunately, most clauses of the Bill of Rights are not so easy.  Most of them are written in the passive voice, inviting the question: by whom? Yesterday, I argued that most of these clauses bind the Executive (or Judicial) branch rather than Congress.  This explains the Court’s intuition that most constitutional challenges are properly fact-based, or “as-applied”.

The Fourteenth Amendment is more difficult still, but in a different way.  It is written in the active voice, with an express subject, but its subject is less specific than “Congress.”  The Fourteenth Amendment says: “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.”

It is tempting, of course, to say that this provision binds all state actors, and so Fourteenth Amendment rights are rights against all of them.  But, unfortunately, the question is more complicated.  The Fourteenth Amendment is said to “incorporate” the Bill of Rights against the States.  But, as we have seen, the Bill of Rights itself protects rights against particular federal actors.  The subject of the First Amendment, for example, is “Congress.”  It is a prohibition on legislative action.  Does it follow, therefore, that the First Amendment as incorporated applies only to state legislatures?

Not necessarily.  In his masterpiece, The Bill of Rights: Creation and Reconstruction, Akhil Reed Amar explained how the rights in the Bill of Rights are refined as they are incorporated against the States.  Building on Amar’s brilliant work, my article explores perhaps the most important refinement of all — refinement of the subjects and objects of the Bill of Rights.  The rights as incorporated do not necessarily restrict the state analogues of the same federal actors.

The reason derives from the structural logic of the Constitution.  Because the Constitution created the federal government, it could be precisely calibrated to empower and restrain each of the three branches that it created.  The Bill of Rights provisions are restrictions on powers granted elsewhere in the document. They are, as Chief Justice Marshall says, “limitations of power granted in the instrument itself.”  The limitations are, thus, carefully calibrated to the power grants.

But the Constitution did not create the state governments, and it permits a wide variety of state governmental structures—requiring only that those structures be “Republican.”  So the Framers could not be certain precisely who, at the state level, would pose each sort of threat to liberty.  The Fourteenth Amendment restricts state governmental powers that are not to be found in the Constitution itself.  These provisions cut across state powers that may or may not be found in various state constitutions and may or may not vary from state to state. Here, the restrictions do not map onto grants of power to particular state officials, and so the restrictions are phrased generally: “No State shall.”

For this reason, incorporation of the Bill of Rights may work a refinement of the subjects and objects of the Bill of Rights.  Contra the conventional wisdom, different actors may be bound at the state level than at the federal level. For each privilege or immunity, it is essential to ask: privilege or immunity against whom? I venture some answers in The Objects of the Constitution.