The Original Meaning of the Fourteenth Amendment by Randy E. Barnett

Author:Randy E. Barnett
Language: eng
Format: epub
Publisher: Harvard University Press

Implementing Republican Citizenship

Unlike scholars, time-pressed, boundedly rational public officials cannot afford to engage in extensive historical and linguistic inquiries. Even if they could, they would still confront constitutional text that does not compel them to take one, and only one, course of action. Underdeterminacy is part of constitutional reality. Accordingly, they need a set of doctrinal tools that economize on time and cognitive effort and simplify constitutional decision-making. Such constitutional heuristics are the stuff of which constitutional doctrine is made. What doctrines best enable decision-makers to implement the Privileges or Immunities Clause in a manner that is faithful to its letter and spirit?

As we will explain in Part II, we reject the view of those who, like Justice Clarence Thomas, contend that the Due Process of Law Clause imposes no limits on the content or substance of legislation.30 But we share with Justice Thomas the view that the business of identifying “fundamental” or substantive rights of citizens that states are obliged to respect should be performed under the Privileges or Immunities Clause. This can be confusing. Carefully distinguishing between the work done by the Privileges or Immunities Clause and the Due Process of Law Clause can help, which requires us to preview what is forthcoming.

As we will show in Part II, the “due process of law” includes a guarantee of a judicial process in which the substance of legislation is evaluated to ensure that it is within the proper power of the legislature to enact. As we have shown in Part I, a legislative act is improper if it abridges the substantive rights to which the Privileges or Immunities Clause refers. Put another way, the Privileges or Immunities Clause provides a restriction on state legislative power—“no state shall make or enforce any law”—based on the substantive rights, “privileges or immunities” enjoyed by all citizens. In contrast, the Due Process of Law Clause provides a procedure in which the substance of legislation is evaluated by the judiciary to ensure that a statute has not violated these privileges or immunities.31

The modern concept of “substantive due process” confusingly collapses these two substantive inquiries: (a) the judicial identification of substantive rights and (b) the judicial evaluation of the substance of legislation. We think that the original meaning of the Privileges or Immunities Clause authorizes and constrains the former and that the original meaning of the Due Process of Law Clause authorizes and constrains the latter.

At present, however, the Supreme Court identifies substantive rights under the rubric of the Due Process of Law Clause. To identify these fundamental rights, the Court generally—although not exclusively—relies on a two-pronged heuristic described in the “right to die” case of Washington v. Glucksberg32: a substantive right will be deemed fundamental only if it is found by the Court to be “deeply rooted in this Nation’s history and tradition”33 and given a “careful description.”34

Considering how harshly one of us has criticized this “Glucksberg two-step,”35 it may surprise some to learn that our proposed approach to identifying the unenumerated privileges and immunities of US citizenship closely resembles Glucksberg.

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