Rejoinder to Akhil Amar on the Application of the Fourteenth Amendment to the Federal Government

I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point at issue. Neither of his posts adequately substantiates his argument that the original meaning of the Citizenship Clause of Section 1 of the Fourteenth Amendment protects African-Americans and others born or naturalized in the United States against federal racial discrimination simply by virtue of guaranteeing them citizenship.

In his new post, Akhil explains that his argument only applies to federal government discrimination with regards to “civil rights” (e.g. – rights to property and freedom of contract) rather than political rights (e.g. – voting and participation in juries and the military). I know that he has distinguished between the two in previous work. However, in the quote from his new book that he included in his earlier post criticizing me, Akhil makes the sweeping statement that the Citizenship Clause of the First Amendment means 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” [emphasis added]. I think a reasonable reader could be forgiven for assuming that by “any law” Akhil means “any law.” Laws excluding blacks or women from the franchise, jury service, or military service certainly seem like laws “heaping disabilities or dishonor upon any citizen by dint of his or her birth status.” Perhaps this very broad statement is qualified elsewhere in the new book. But I unfortunately did not yet have a copy of a book that went into print just this week, and so was going by what Akhil said in the part he excerpted in his post.

Perhaps more importantly, Akhil ignores the fact that much of the evidence I cite against him applies to civil rights as well as political rights. In both of his posts, Akhil makes much of the fact that the Fourteenth Amendment was, at least in part, modeled on the Civil Rights Act of 1866. But as I noted in my last post, the Civil Rights Act does not assume that granting citizenship to blacks also necessarily protects them against racial discrimination with respect to civil rights:

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.

Laws concerning “the security of person and property” are clearly laws that relate to civil rights, not political rights. Like the Civil Rights Act of 1866, the latter part of Section 1 of the Fourteenth Amendment bars states from discriminating with respect to various civil rights, but the Citizenship Clause does not include any such restriction on the federal government.

Similarly, Justice Curtis’ dissent in Dred Scott, which I quoted at some length, describes the pre-Fourteenth Amendment conventional wisdom 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,” [emphasis added]. For example, Curtis referred to the fact that women are clearly citizens, yet were also barred from a variety of civil rights in many states.

Akhil makes a valid point in noting that I was too quick to assume that if racial discrimination between citizens is banned by the Citizenship Clause, the Equal Protection Clause becomes redundant. As he points out, the latter Clause protects all “persons,” not just citizens. Nonetheless, it is somewhat strange to conclude that the Equal Protection Clause offers no additional protection against racial discrimination to citizens beyond that already offered by the Citizenship Clause, and is only there to constrain such discrimination against noncitizens.

Finally, as I noted in my previous post and an update to my earliest post on this subject, in some places in both of them I referred to Section 2 of the Amendment where I meant to say the latter part of Section 1 (which includes the parts of the Amendment that, according to the text, apply only to state governments). I noticed the error before Akhil’s rebuttal, and posted updates noting it. But in my haste last night, I missed a couple instances of the error that I should have corrected. I have now fixed them. This is the sort of mistake that bloggers sometimes make when writing quickly, and I should have been more careful.

UPDATE: I cut a passage relating to the Privileges or Immunities Clause that was in the original version of this post in order to save space, and because I decided it wasn’t a good enough point to include without some additional elaboration and qualification that would take even more space. Since I made the cut only about 30 minutes after the initial posting and few readers will have seen that material, I am not going to discuss it in more detail in this update.