I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government policies, and that the part of the Fourteenth Amendment which includes the Due Process Clause, the Equal Protection Clause and the Privileges or Immunities Clause), explicitly applies only to states.
Professor Amar rightly points out that the first sentence of Section 1 of the Amendment, which guarantees citizenship to all persons born or naturalized within the United States, applies to the federal government as well. I don’t deny this, and even added an update to my post, where I noted that “I have updated this post slightly to make clear that it is the text of Section 2 [I meant to say the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – [the first part of Section 1] which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.” My original post was badly worded on this point; and I also briefly conflated the second part of Section 1 with Section 2, which foolish error is explained but not excused by the fact that I was very tired at the time I wrote the update). But the update (which I first added before Professor Amar’s post went up) does make my position clear.
Amar and I therefore agree that the first sentence of Section 1 of the Amendment applies to the federal government, as also do some other parts of the Amendment, such as Section 3. We also seem to agree that the latter part of Section 1 – at least as an original matter – does not. Professor Amar appears to accept the latter in his earlier book, America’s Constitution: A Biography (pg. 382), though he does not reach a definitive conclusion.
Where we disagree is over the question of whether the Citizenship Clause of Section 1 banned racial discrimination by the federal government. In my view, at least as a matter of original meaning, it did not. Consider the fact that immediately before, during, and after the passage of the Amendment, the federal government engaged in extensive discrimination against African-Americans that few at the time thought was unconstitutional. For example, blacks were segregated in the US Army and Navy, and excluded from many officer positions. The Marine Corps completely excluded blacks until 1942. In addition, if Amar is right that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence,” then laws denying the vote to women were banned by the Fourteenth Amendment, and there was no need for the Nineteenth Amendment (which finally banned sex discrimination in this field over fifty years after the Fourteenth Amendment was enacted). Amar’s approach also renders much of [the latter part of Section 1] of the Amendment superfluous. If the Citizenship Clause Section 1 already bans racial and other status discrimination by state governments, there would be no need for [the] Equal Protection Clause, which bans state denial of “equal protection of the laws.”
I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.
It is true that the Civil Rights Act of 1866 was to a considerable extent a model for the Fourteenth Amendment. Section 2 [actually the latter part of Section 1] of the Amendment forbids racial discrimination by state governments of the sort banned by the 1866 Act. However, Section 1’s Citizenship Clause does not include any comparable restriction on racial discrimination by the federal government. And as the language of the Civil Rights Act shows, such a ban was not considered implicit in the grant of citizenship itself. It’s also worth noting that the Civil Rights Act of 1866 does not apply to all types of racial discrimination by government, but merely that which pertains to “laws and proceedings for the security of person and property.” It therefore did not apply to racial discrimination by state universities of the kind at issue in the affirmative action litigation that led to my original post.
The conventional wisdom in the nineteenth century was that citizenship status was very much compatible with various types of discrimination between citizens. Most jurists agreed, for example, that women’s citizenship status did not bar a variety of discriminatory legislation against them. Consider this passage from Justice Curtis’ dissent in Dred Scott, arguing against Chief Justice Taney’s claim that widespread discriminatory legislation against African-Americans proved that they could not be citizens:
It has been… objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.
But this position rests upon an assumption which I deem untenable. Its basis is that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen…. That this is not true under the Constitution of the United States seems to me clear.
A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization…. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.
One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications.
The drafters of the Fourteenth Amendment also assumed that granting citizenship to African-Americans did not automatically entitle them to equal civil or political rights. That’s why they added the latter part of Section 1 to the Amendment, which prevents states from taking away those rights. And that’s why they later adopted the Fifteenth Amendment, which forbade racial discrimination in voting rights.
I should emphasize that both this post and the previous one only address the original meaning of the Fourteenth Amendment restricts racial discrimination by the federal government. I fully admit that there are many nonoriginalist arguments for applying the Amendment to the feds. I also believe that some types of racial discrimination by the federal government may be banned by other parts of the Constitution. For example, I think that imprisoning people without individualized due process merely because they belong to a particular racial group violates the Due Process Clause of the Fifth Amendment, which is why originalism cuts against the Supreme Court’s infamous decision upholding such detentions in Korematsu v. United States.
Finally, as regular VC readers know, I am no fan of unconstrained federal power. As I see it, an ideal Constitution would severely restrict and perhaps even categorically ban racial discrimination by the feds. But that’s not what the Fourteenth Amendment did, at least not originally.
UPDATE: Professor Amar has written that he may not have time to respond to our rebuttals to his posts within the week that he will be guest-blogging. I would therefore be happy to post any reply he might care to submit at a later date. Either way, I look forward to reading his book, which is likely to be a major contribution to constitutional scholarship on par with his pathbreaking earlier work.
UPDATE #2: In the original version of this post, I accidentally repeated my mistake from the previous post of writing “Section 2” in places where I meant to refer to the latter part of Section 1. I have now noted and corrected those places.