1. 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.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article
14th Amendment to the Constitution of the United States - 1868
Commentary by George Conk
In their new book The Original
Meaning of the 14th Amendment Georgetown law professor Randy E.
Barnett and Evan G. Bernick (Northern Illinois) take on the deeply embedded proposition that the 14th
Amendment’s promise of equal protection, due process, and the privileges and
immunities recognized as fundamental rights are demanded only of the states and
do not reach private acts of discrimination.
In order to obtain a remedy - damages or injunction - for a violation of
rights under the 14th one must prove not neglect or indifference,
but action by the state or an agent. And that right-depriving action must be
intentional. Absent such proofs the
Constitution’s promises and expectations do not bind actors. That is why Donald Trump can be freely wiped from the
screens of Twitter and Facebook. No state action means no first amendment protection.
In the immediate aftermath of the Civil War the 13th Amendment declared slaves free, stripped human property from slaveholders, and made freemen of those who had been held in bondage. Congress, the Amendment’s Section 5 declared, was empowered to enforce that by “appropriate legislation”. It responded in the Civil Rights Act of 1866 by declaring to be citizens “all persons born in the United States”(save “Indians not taxed”). It promised the “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, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding”
But the 13th
Amendment did not expressly place limits on the states themselves. That took the 14th Amendment which went
beyond the 13th . The 14th restructured the relationship between the national and state governments. It affirmed
birthright United States citizenship and declared “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.”
Barnett, a prominent and influential conservative, and his young partner in this mission take aim directly at the United States Supreme Court, hoping to persuade the majority of Justices who declare themselves originalist, to recover the plain and expansive “Original Meaning” of the 14th Amendment.
Laboring in obscurity I have been long at war with the state action requirement embedded in 14th Amendment doctrine. It started in Arthur Kinoy's classroom as he recounted the betrayal of Reconstruction, The Second Founding as Eric Foner recently put it. Three years earlier in Jones v. Alfred Mayer (1968) the Supreme Court had deployed as a tool against private housing discrimination the Enforcement Act of 1866 (surviving in part as 42 USC 1982). Adopted before the 1968 passage of the 14th Amendment, the surviving part of the 1866 Act provides:
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
Passed to enforce the 13th Amendment barring slavery, the 1866 law gave the national government authority to reach private action against the formerly enslaved but did not reach the states. That would require the 14th Amendment.
Twenty six years earlier Massachusetts Democrat Justice Joseph Story in Prigg v. Pennsylvania had intruded on state power by voiding the Pennsylvania law criminalizing the capture and return of fugitive slaves. Protection of property rights in slaves was critical to formation of the union. Therefore speaking of the Fugitive Slave Clause he wrote:
....the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution.
Twenty-four years later, as Robert Kaczorowski argued in The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History... 95 Yale L.J. 565 (1988), "enacting the Civil Rights Act of 1866 points to one conclusion: that the 13th Amendment's framers intended to exercise plenary authority to enforce civil rights by conferring jurisdiction on the federal courts to give direct relief to victims of civil rights violations." But that did not impose a duty on the states to protect or respect the rights of the new citizens.
The Congress in framing the 14th Amendment undertook to cure that problem: it would extend to the states the national government's power to protect citizens - including the newly freed. As Kaczorowski demonstrated the framers of the 14th were well aware of the 1842 Prigg v. Pennsylvania holding. There Justice Story and the Supreme Court had found in Article IV's Fugitive Slave Clause, despite its passive language, an affirmative duty on the federal government to aid in the recovery of slaves which preempted any state law that hindered or obstructed the slave owner's right of recovery.
The 14th Amendment was the mirror image of Prigg: empowering the federal government to vindicate the rights protected by the Amendment - equal protection, due process, and the federally guaranteed privileges and immunities of citizens. But did it do more than that? Did it compel the states to act affirmatively to protect the rights of all subject to their jurisdiction? That question received no answer because when the 1870 Enforcement Act came before Justice Joseph Bradley, a New Jersey railroad lawyer, a spike was driven into one chamber of the 14th Amendment's lungs.
We - the students of Arthur Kinoy at Rutgers fifty years ago - learned that lesson. When the university completed renovations of a nearby factory as six floors of classrooms on what is now Martin Luther King Blvd. in Newark, they named it after Bradley. We marched from our civil rights classroom carrying posters protesting the decision.
But few paid heed until in 2014 Rutgers law professor James Gray Pope demonstrated in Snubbed Landmark [49 Harvard. CRCLLR 385] that the first of many fatal blows to federal plenary power had been struck by Bradley as Circuit Judge in U.S. v. Cruikshank (1874). The United States had prosecuted a relative handful of the white militiamen who had slaughtered some 150 of the African American Republican defenders of the Colfax, Louisiana Parish Courthouse. Bradley freed the convicted killers.
In 1874, sitting as the Circuit Judge in the Cruikshank cases, Bradley explained that despite the 14th Amendment's promises, and in contrast to the federal powers recognized by Story in Prigg, "affirmative enforcement of the [fundamental birth] rights and privileges themselves, unless something more is expressed, does not devolve upon [the U.S.] but belongs to the state government as a part of its residuary sovereignty."
Bradley, in a decision the full court would ratify two years later, elaborated that the 14th Amendment
is a guaranty of protection against the acts of the state government itself, it is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guaranty against the commission of individual offenses; and the power- of congress, whether implied or expressed, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of ordinary crime within the states. This would be to clothe congress with power to pass laws for the general preservation of social order in every state.
