A Lockean analysis of section one of the Fourteenth Amendment.

• Author: Smith, Douglas G.
• Position: Privileges or Immunities Clause

Despite--or perhaps because of--the great attention that scholars have devoted to it, the original meaning of Section One of the Fourteenth Amendment still remains a subject of intense debate. (1) While the Supreme Court has focused most closely on the Due Process and Equal Protection Clauses of the Amendment, a number of commentators recently have examined the much-neglected Privileges or Immunities Clause to gain insights into the intent of the drafters of Section One. (2) Despite these efforts, few have come up with a theory of Section One comprehensive enough to account for all three of these clauses and to delineate carefully the intended purpose of each. Often the roles ascribed to the clauses seem to overlap. For example, a substantive guarantee of fundamental rights is often attributed to both the Due Process and Privileges or Immunities Clauses and an anti-discrimination norm attributed to both the Privileges or Immunities and Equal Protection Clauses. Despite much effort, there remains a lack of agreement concerning the intended effects of these three clauses and their relation to one another.

One point of agreement, however, among many commentators studying the Amendment is that those responsible for its drafting and ratification were influenced strongly by natural law theories and that they aimed through the Amendment to guarantee citizens' freedom to exercise certain natural law rights. (3) Some have reached this conclusion after examining the influence of the antebellum writings of antislavery authors and their incorporation of natural law concepts. (4) Others point to the arguably more relevant evidence contained in the congressional debates on the proposed Amendment and its precursor, the Civil Rights Act of 1866. Whatever the source, however, it is fairly clear that natural law theory played some role in the framing of the Amendment.

As I have argued elsewhere, (5) a study of the natural law theories that were central to legal thought during the nineteenth century may lead to a greater understanding of the original meaning of the Fourteenth Amendment. In particular, this Article attempts to explain the three parts of Section One as an outgrowth of these theories, particularly those of John Locke. In studying Locke's Second Treatise on Civil Government, we see a strikingly similar partition contained in Locke's theory of the state as based on a compact among citizens. Locke's theory may be mapped onto the text of Section One of the Amendment in order to get some idea concerning the drafters' intent in utilizing the structure they chose. Although many commentators have puzzled over Section One's design, concluding that it was the result of poor or inartful drafting or that it was crafted in a haphazard way, analysis of the text in light of Locke's theories reveals a coherent structure that may have been apparent to those responsible for Section One's drafting and ratification. If this analysis is correct, it would explain the relatively sparse debate concerning the particular formulation that was enacted into law.

Following this line of reasoning, Part I first offers an overview of the history of the drafting of Section One. Notably, there was a lack of debate concerning that particular section when compared with the more controversial sections of the Amendment. The remainder of the Article examines the structure of Section One in light of the theory of the state as described by Locke. Part II briefly surveys Locke's influential theory of the state, including his model of government as based upon a compact among individuals emerging from a state of nature. Part III applies Locke's model to Section One of the Fourteenth Amendment, addressing each of the three clauses in turn. This Part first examines the Privileges or Immunities Clause of the Amendment, arguing that it was intended to provide a guarantee for certain fundamental capacities of citizenship thought to exist anterior to the formation of government--capacities flowing from either the absolute rights of individuals or the relative rights that arose as a result of their entering into a compact among themselves. Part III then considers the Due Process Clause of the Amendment, concluding that it most likely was intended to provide solely what today we might term a "procedural" guarantee, leaving the "substantive" work to the other two clauses. Finally, Part III considers the Equal Protection Clause, which the drafters and ratifiers most likely intended to provide a guarantee that the States would protect all citizens equally through the exercise of their police powers.

1. THE ORIGINS OF SECTION ONE

   The historical materials concerning the drafting of Section One of the Fourteenth Amendment are somewhat sparse. The records of the Joint Committee on Reconstruction, responsible for drafting the Amendment, are not particularly detailed, (6) and although there was extensive debate concerning civil rights and the rights of the newly-freed slaves, there was little debate in Congress concerning the meaning of Section One. (7) Nonetheless, a number of commentators have attempted to discern what they can from the limited historical documentation in an attempt to better understand the drafters' intent.

   1. The Thirteenth Amendment

      Ratification of the Fourteenth Amendment must be viewed in conjunction with other efforts by Congress to protect the rights of free blacks and others. Before consideration of the Fourteenth Amendment began, Congress had already passed the Thirteenth Amendment, which banned slavery and involuntary servitude in the United States and afforded Congress the power to enforce the prohibition through "appropriate legislation." Some evidently viewed this Amendment as granting to Congress the power to protect certain fundamental rights. Senator Sherman, for example, argued that the Amendment "secures to every man within the United States liberty in its broadest terms" and could form the basis for giving "the freedmen of the southern States ample protection in all their natural rights." (8) Sherman reasoned:

      [U]nless a man may be free without the right to sue and be sued, to plead and be impleaded, to acquire and hold property, and to testify in a court of justice, then Congress has the power, by the express terms of this Amendment, to secure all these rights.... Therefore the power is expressly given to Congress to secure all their rights of freedom by appropriate legislation. (9) According to Sherman, Congress passed the Amendment to remedy a defect in the Privileges and Immunities Clause of Article IV that had "always been a part of [the] fundamental law"-i.e., the lack of a grant of power to Congress to "enforce" the guarantee under that provision:

      Although here was a guarantee that the citizen of one State should have the rights of a citizen in all the States, yet there was no express power conferred upon Congress to secure this right, and no law has ever yet been framed that secured the right of a citizen to travel wherever he chose within the limits of the United States. To avoid this very difficulty, that of a guarantee without a power to enforce it, this second section of the constitutional amendment was adopted, which does give to Congress in clear and express terms the right to secure, by appropriate legislation, to every person within the United States, liberty. (10) Senator Sherman was not alone in his interpretation of the Amendment, however. For example, Senator Trumbull later expressed similar views:

      With the destruction of slavery necessarily follows the destruction of the incidents to slavery. When slavery was abolished, slave codes in its support were abolished also. Those laws that prevented the colored man from going from home, that did not allow him to buy or to sell, or to make contracts; that did not allow him to own property; that did not allow him to enforce rights; that did not allow him to be educated, were all badges of servitude made in the interest of slavery and as a part of slavery. They never would have been thought of or enacted anywhere but for slavery, and when slavery falls they fall also. (11) Trumbull had "no doubt" that under the Amendment, Congress could "destroy all these discriminations in civil rights against the black man." (12) And he later stated that, under the Amendment, a "law that does not allow a colored person to hold property, does not allow him to teach, does not allow him to preach, is certainly a law in violation of the rights of a freeman, and being so may properly be declared void." (13)

      Other members of Congress, however, maintained that free blacks were already receiving equal civil rights in at least some of the States and that in these "appropriate legislation" was not necessary to further the purposes of the Thirteenth Amendment. For example, Senator Guthrie represented that in Kentucky, free blacks enjoyed the same civil rights as whites:

      They have all these rights-the right to sue and be sued, the right to contract and be contracted with, the same right to purchase and hold property and transmit it by will or descent, the same rights of marriage, as white people. There is some little modification in the existing laws which our friends in the Legislature are endeavoring to procure; but generally the free negroes have the same rights of person and property as white persons. (14) Senator Davis echoed this view: "My honorable colleague gave a picture of what has always been the policy of Kentucky, and the laws of Kentucky, toward free negroes. With a few exceptions, they have all the civil rights that any white man has." (15)

      Despite the expression of such sentiments, Congress eventually agreed that further changes in the Constitution were necessary to guarantee citizens' rights. In part, Congress was responding to the counter-argument that emancipation of the slave did not automatically confer upon him the rights of citizenship. Several members of Congress...