New Article: General Law and the Fourteenth Amendment

What is the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment?

There have been many great books on this question, but I have never been totally satisfied with their answers. Co-blogger Steve Sachs and I, along with Professor Jud Campbell, have a new article out in the Stanford Law Review on this question: General Law and the Fourteenth Amendment. We argue that the fundamental rights protected by the Amendment have to be understood in light of the unwritten common law of the time, especially the fact that it was enacted in the era of Swift v. Tyson and before Erie R.R. v. Tompkins.

Here is the introduction:

What kind of law defines Fourteenth Amendment rights? The answer seems obvious. Section One of the Amendment confers federal constitutional rights: to "due process," to "equal protection," to the "privileges or immunities of citizens of the United States." So the content of these rights must be defined by federal constitutional law, to be divined and explicated by federal courts.

Yet this seemingly obvious answer has serious flaws. The Privileges or Immunities Clause was once the core of Section One, before it was rendered a dead letter in the Slaughter-House Cases. And this Clause is often read to have guaranteed a vast swath of substantive rights, including common-law rights of property and contract—the sort of fundamental rights secured against interstate discrimination under Article IV's Privileges and Immunities Clause, or against racial discrimination in the Civil Rights Act of 1866. But the moderate Republicans who championed the Amendment in the Thirty-Ninth Congress also staunchly opposed anything that might have upended American federalism by nationalizing the common law. So how could the Amendment have turned all of these ordinary rights into federal constitutional law?

Equally perplexing is how the drafters and supporters of the Fourteenth Amendment could have displayed such confidence about its importance while remaining so agnostic about what it actually did. Discussing an early draft in the House, Representative John Bingham urged that "you must amend the Constitution" to assure "the immunities and privileges of citizens" to "the loyal minority of white citizens and the disenfranchised colored citizens." Yet when introducing the measure in the Senate, Jacob Howard described "the privileges and immunities of citizens" as "a curious question," adding that they "cannot be fully defined," "whatever they may be." How could members of Congress have expressed so much confusion about Section One's likely effects and yet have voted in supermajorities to pass the Amendment anyway? And although Section One dominates the practice of constitutional law today, it received relatively scant attention in the voluminous debate over the Amendment in Congress, at least as compared to Sections Two and Three. How could such a fundamental measure have skated by with so little controversy?

Something in the "fundamental rights" reading has to give. Maybe the Clause protects federal-law rights, but only those enumerated elsewhere in the Constitution. Or maybe it requires only equality with respect to state-law rights; or maybe it is just indeterminate or internally contradictory. Each of these views has its supporters, but each has its flaws as well.

To solve these puzzles, we need to recover a missing piece. Fourteenth Amendment rights need not have been defined solely by federal law or by state law. Americans in the 1860s recognized a third option: what we now call general law. Though referred to by different names, this shared body of unwritten law was not derived from any enactment by a single sovereign but instead "existed by common practice and consent among a number of sovereigns." As a result, it was available to courts in many different Anglo-American jurisdictions. When no other source of law applied, these courts could draw from "known and settled principles of national or municipal jurisprudence," including "the common law," "the law of equity," and "the law of nations." Historical scholarship about general law is in the midst of a renaissance, including works on the general-law grounding of many parts of the Bill of Rights. But while Fourteenth Amendment scholarship is also flourishing, the role of general law in the Amendment's design has been largely overlooked.

This Article contends that Section One was premised on the existence of fundamental rights that the Fourteenth Amendment secured but did not confer: The rights were present already, defined by general law. What the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause did was not so much substantive as it was jurisdictional. These Clauses provided for the federal enforcement of general-law rights that already limited state power but that had been beyond the power of Congress and federal courts to protect. The Amendment thus provided for federal remedies without supplying the underlying rights; the rights themselves were still grounded in general law.

The idea that the Constitution can secure rights without conferring them, and without nationalizing or constitutionalizing them either, might seem odd today. But this was a routine aspect of rights enforcement when the Fourteenth Amendment was adopted. Most importantly, many Republicans understood Article IV's Privileges and Immunities Clause to protect out-of-staters' citizenship rights, which were commonly defined by general law and linked to a status called general citizenship. Such understandings played a crucial role in the decision to protect in-staters, too, against state abridgment of these "privileges or immunities of citizens of the United States."

Bringing general law back into view helps solve some of the puzzles noted above. It explains why the Fourteenth Amendment's adopters thought that their work was so significant for the nature of the Union, why moderate Republicans felt so comfortable supporting the Amendment while demanding distinct roles for state and federal governments, and why the Amendment's supporters could have been, to modern ears at least, so maddeningly vague about which rights they were insulating from state interference or which kinds of equality they were guaranteeing to all. There was no need to spell out the fundamental rights to be protected or the equal citizenship to be guaranteed; those things were to be found outside the Constitution's text.

This Article seeks to recover this older way of thinking about how the Fourteenth Amendment protects fundamental rights. Part I summarizes what we call the "general-law approach." It begins with a survey of rights discourse prior to Reconstruction and explains how, in our view, the Fourteenth Amendment altered that legal landscape. Though this Part's discussion is grounded in history, our aim is primarily conceptual; that is, we describe how the general-law approach fit within the constellation of nineteenth-century legal concepts.

Part II then reexamines key pieces of historical evidence from the 1860s, focusing on debates in the Thirty-Ninth Congress. The general-law approach explains Congress's debates about the Civil Rights Act of 1866 and Bingham's subsequent drafting of Section One of the Fourteenth Amendment. General law also provides a framework for the recurring references in Congress to fundamental rights, unwritten law, and the continuing police power of the states. This Part further describes how the Supreme Court in Slaughter-House came to reject the general-law view (and thus to undermine Section One), as well as how general law was central to the Slaughter-House dissents.

Part III then turns to potential implications for equality jurisprudence, for congressional powers, for state-action doctrine, and for fundamental rights, including the incorporation of the Bill of Rights. To the modern interpreter the imprecision and woolliness of general-law reasoning, including its reliance on custom and tradition, might seem an inappropriate basis for constitutional law. But the Fourteenth Amendment was made by people in the past during the heyday of general law—and their comfort with imprecision, woolliness, and customary background principles are among the most notable features of the historical debates. In any case, recovering the centrality of general law helps resolve several persistent historical puzzles about the original meaning of the Fourteenth Amendment, and it may point us in the right direction to resolve many more.

You can read the whole thing here.

This piece sets up a framework for understanding the Fourteenth Amendment, but tons of more specific questions has to be left for future work—and may well implicate issues on which the three of us do not completely agree or have sufficient knowledge. But if you're interested in some related projects, you can also read my The General-Law Right to Bear Arms (with Robert Leider) and Steve's Dobbs and the Originalists as well as the "prequel" Jud's General Citizenship Rights.