David H. Gans, the Unitary Fourteenth Amendment

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 56 No. 4

THE UNITARY FOURTEENTH AMENDMENT

David H. Gans^*

INTRODUCTION

In modern constitutional adjudication, Section 1 of the Fourteenth Amendment has been sliced and diced into the specific clauses that make up the Amendment's constitutional guarantees.¹Instead of reading the Amendment's guarantees as a whole, we normally analyze the meaning of the various clauses that make up Section 1 in isolation from one another. Courts and scholars often ask questions about the meaning of the Citizenship Clause, the Due Process Clause, the Equal Protection Clause, and the Privileges or Immunities Clause as if they were free-standing units rather than parts of a larger whole.²The result is that we often lose sight of the ways in which the four component parts of Section 1 work together, and our constitutional doctrine often obscures the connections between and among the provisions that make up Section 1.

The four components of Section 1, however, form a coherent whole. The overarching aim of the Fourteenth Amendment was to make the newly emancipated slaves equal citizens in the reconstructed United States. Section 1 sought to accomplish this goal in four ways. First, the Citizenship Clause announces that citizenship is a birthright of all Americans.³Second, the Privileges or Immunities Clause declares that substantive rights and liberties inhere in citizenship and forbids states from making or enforcing laws that deny citizens these constitutional rights.⁴Third, the Equal Protection Clause embodies a ban on racial and other class-based forms of discrimination and subordination.⁵Fourth, the Amendment's Due Process Clause guarantees procedural fairness and regularity.⁶

Groups, and the social roles their members play in the polity, are at the heart of Section 1's guarantees. Section 1's concern is the tyranny that a voting majority might exercise over marginalized social groups. Its guiding command is ensuring the equal citizenship of all Americans, and the text sets out a tripartite scheme to protect that principle. The Amendment's three substantive guarantees-liberty, equality, and fairness-work hand in hand to preserve each individual's right, as a citizen, to participate in American society on the terms he or she deems appropriate. The Privileges or Immunities Clause ensures that each citizen has all the rights and liberties that inhere in citizenship, barring governmental efforts to deprive marginalized group members of the liberty the Constitution grants to all citizens. In the same vein, the Equal Protection Clause prevents the government from forcing disfavored groups into the role of social subordinate, thereby liberating each person to participate, achieve, and contribute to society on his or her own terms. Finally, the Due Process Clause's fairness mandate complements the liberty and equality that Section 1 protects by preventing governments from using unfair procedures to undermine the formal guarantees of liberty and equality.

Modern constitutional law routinely overlooks this integrated vision of Section 1 for two reasons. First, the Privileges or Immunities Clause is close to a dead letter. Just a few short years after Section 1's enactment, the Supreme Court in the Slaughter-House Cases⁷effectively read the Privileges or Immunities Clause out of the document.⁸Without that Clause, one of

Section 1's core ideas-that citizens have substantive rights as citizens that no government may abridge-has no firm textual foundation. The Court has filled this void by turning to the Due Process Clause to protect substantive liberties,⁹but the text of the Due Process Clause says nothing at all about citizenship and concerns procedural, not substantive, rights. The result is that modern constitutional law does not grapple with questions about which substantive liberties attach to citizens by virtue of citizenship, and the Court's cases protecting substantive liberties under the rubric of substantive due process are often castigated as illegitimate attempts to perfect the Constitution by bringing it into line with the Justices' political predilections.¹⁰

Second, the Court interprets Section 1's remaining guarantees-principally the Equal Protection and Due Process Clauses-in isolation from one another. The Court's due process and equal protection jurisprudences are like two ships passing in the night, each ignoring the other. This distorts both bodies of law. By decoupling the Due Process and Equal Protection Clauses from the larger whole of which they are a part, the Court treats each as a conceptually distinct limitation on what the government may do to the individual,¹¹forgetting that both guarantees play a central role in protecting marginalized social groups from the tyranny of local majorities. Those who framed Section 1 guaranteed both liberty and equality because each tends to reinforce and strengthen the other. The two protections work hand in hand to make the constitutional concept of citizenship meaningful.

This Article is rooted in a familiar theme of constitutional interpretation: the text matters. Taking the text seriously requires a commitment to understanding the words of the document and the first principles underlying the text. In the case of constitutional amendments, it requires us to understand what came before, why we as a people decided to amend the Constitution, and how the words we chose changed our constitutional order.¹²There is something close to universal agreement that the text matters, yet we continue to miss important lessons the text of the Fourteenth Amendment offers because of our insistence on focusing on the meaning of particular clauses and phrases rather than considering the text in a more holistic light. If we are to take the constitutional text seriously, we need a better understanding of how its various provisions relate to and inform one another. Looking at the Fourteenth Amendment's rights-guaranteeing provisions-all contained in Section 1-as a unit gives us a better understanding of the Amendment's first principles.

This Article analyzes Section 1 as a whole, both in general terms and as applied to the constitutional right of women to terminate their pregnancies. Reading Section 1 holistically is of special importance in considering the Court's cases decided under the rubric of the right to privacy.¹³Virtually every statute invalidated in the Court's privacy jurisprudence involves a twin constitutional harm-an invasion of liberty and a denial of equality. But the Court's leading privacy cases, from Meyer v. Nebraska¹⁴to Griswold v. Connecticut ¹⁵to Roe v. Wade, ¹⁶rest on the liberty protected by the Due Process Clause and ignore the remainder of Section 1. Meyer protected the liberty of parents to educate their children in modern foreign languages, ignoring that Nebraska's ban on teaching those languages was a form of national origin discrimination enacted to prevent immigrants from educating their children in the language of their homeland.¹⁷Both Griswold and Roe protected the individual right to choose whether or not to bear children, saying next to nothing about how anticontraception and antiabortion laws force women into the maternal role long seen as women's destiny.¹⁸If there is a payoff in reading Section 1 as a whole, it will be here.

To be sure, the Court's two most recent privacy cases-Planned Parenthood of Southeastern Pennsylvania v. Casey¹⁹and Lawrence v. Texas²⁰-signal a trend in favor of constitutional fusion. In both cases, the Court located the right in the liberty protected by the Due Process Clause, yet analyzed the right in language that evoked the spirit, if not the letter, of the Equal Protection Clause.²¹The Court protected the liberty of women and gay and lesbian persons as both individuals and members of marginalized groups, affirming their freedom to shape their destiny and to differ from the state's conception of their proper roles and expected behavior.²²But the Court's equality analysis ended there. Its holding in both cases rested only on the Due Process Clause. The Court's steps away from clause-bound adjudication were only baby steps.

This Article argues that Section 1, read as a unit, protects a woman's right of reproductive freedom. Grounding this right in the whole of Section 1 provides a better textual hook to protect the right to choose abortion and allows us to make manifest the connections between citizenship²³and reproductive freedom. As citizens, women have a constitutional right to shape their destiny and place in the American community. Antiabortion laws violate women's equal citizenship by forcing pregnant women to be mothers, coercing them into conforming to the stereotype that a woman's proper role is to bear and raise children. This coercion is both a violation of the liberty of citizens protected by the Privileges or Immunities Clause and the antidiscrimination and antisubordination mandates of the Equal Protection Clause.

I. TOWARDS A UNITARY READING OF SECTION 1 OF THE FOURTEENTH

AMENDMENT

To understand Section 1 of the Fourteenth Amendment as a whole, we must start with the text. Section 1 reads as follows:

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. 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.²⁴

As explained above, Section 1 contains four guarantees: (1) citizenship as a birthright of all Americans, (2) constitutional protection of the substantive rights and liberties that flow to each American by virtue of citizenship, (3) procedural fairness, and (4) a guarantee of equality. This Part asks a set of questions: Why did the framers of the Fourteenth Amendment join...