The book’s introduction begins “Nothing in the Constitution of the United States is more important to contemporary American law and politics than the Fourteenth Amendment. The book that follows gives a “comprehensive account of the original meaning and purposes” of its key components, which are Section 1 and Section 5. The authors organized the history around the three key clauses of the second sentence to Section 1. Part I has The Privileges or Immunities of Citizenship Clause, Part II has The Due Process of Law Clause and Part III has The Equal Protection of Laws Clause. A conclusion of 14 pages ends the book. Be sure to read the March 12, 1871 letter of Supreme Court Justice Joseph Bradley reproduced in the preface. It foreshadows what to expect from American courts.
The Introduction explains the origins of originalism and begins developing the original public meaning of the 14th Amendment from 1868. To do this the authors review historical writing of legal scholars that develops a distinction between the public meaning of the original text in contrast to how the text is applied later in constitutional disagreements. While the Constitution has some indeterminant words and phrases Barnett and Bernick argue it conveys an original spirit: “Where the letter of the Constitution is unclear, fidelity to the Constitution’s design requires that judges, legislators, and other constitutional decision makers turn to the law’s original spirit.”
The Privileges or Immunities of Citizenship Clause discussion in Part I makes up the longest section of the book with 217 pages. The clause as written in the Fourteenth Amendment rephrases the original Article IV, Section 2 from the 1787 Constitution. As originally written it was “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.” The Fourteenth Amendment adds the phrase “No State shall make or enforce any law which shall abridge the Privileges or Immunities of Citizens of the United States.
The original phrase suggests states are free to define rights for their citizens and apply them to residents and all others traveling into, or through, their state; citizenship varies by state. The Fourteenth Amendment applies to Citizens of the United States, hoping to establish some uniform rights to U.S. citizens. Neither phrase defines Privileges and Immunities, which remains open to interpretation.
Barnett and Bernick narrate and document the history of the chaotic contest to define the Privileges and Immunities of Citizens. From 1787 to 1868 the demands of southern slave holders to exclude black people - free blacks, slaves - from any rights of citizenship dominant the narrative. The federal courts took the southern side – Barren v. Baltimore, Dred Scott v. Sandford to wit – which helped generate the rise of the Republican Party.
Southern secession in 1860-61 left the federal government with northerners determined to redefine and guarantee a national citizenship for all. Chapter 4 and 5 provide a thorough discussion of the Congressional debate to define privileges and immunities of citizens and to embody them into the 13th Amendment in 1865 and 14th Amendment in 1868.
Ratifying the two amendments did not end the citizenship debate. Chapter 6, entitled Enforcing Citizenship, is the longest chapter in the book at 49 pages. It narrates the continuing debate that brought passage of the 15th Amendment to guarantee the right to vote and for the need to enforce the 14th Amendment. The 14th Amendment includes Section 5 that gives Congress the power to enforce, by appropriate legislation, the provisions of Article 1. Barnett and Bernick give a thorough account of the Congressional debate of enforcement efforts leading to the passage of the Civil Rights Act of 1866 and the Enforcement Acts in 1870-71, legislation intended to quell the violence of southern groups such as the KKK.
The
second half of Chapter 6 reviews the depressing and disruptive role that the
federal courts took to redefine the privileges and immunities of citizenship to
suit the racist South. In their preface the authors remind readers of the Supreme
Court case of Barren v. Baltimore, which claimed the first eight amendments
constrained only the federal government, but not state power. This ruling
allowed the southern states to pursue their racist agenda with impunity. After
winning the Civil War, northern politicians were determined to define and apply
the Privileges and Immunities of Citizenship to everyone, everywhere. Again
though, the Supreme Court went to work to neutralize these efforts. The most
notorious of these came after the legislature of Louisiana granted a monopoly
to a New Orleans slaughterhouse, denying the right of citizens to choose their
occupation as a fundamental part of citizenship.
In the Slaughterhouse cases that ended in
1873 the District Court ruled against the monopoly, but a 5 to 4 majority of
the Supreme Court reversed that ruling as a radical interference with states
rights. Justice Samuel Miller writing
for the majority, decided overruling a state grant of monopoly would “fetter
and degrade the State governments by subjecting them to the control of Congress
in the exercise of powers heretofore universally conceded to them of the most
ordinary and fundamental character.” … “We are convinced that no such results
were intended by the Congress which proposed these amendments, nor by the
legislatures of the States which ratified them.” The opinion by Justice Miller
intends to repeal the Fourteenth Amendment by judicial decree and return to
what Justice Bradley wrote in dissent as “that spirit of insubordination and
disloyalty to the National government …”
After the judicial review Barnett and
Bernick return to the evidence they argue defines citizenship and the original
meaning of the 14th amendment.
Chapter 7 reviews the debate and views of contemporary academics, which includes
five separate theories of U.S. citizenship before moving onto Implementing the
Privileges and Immunities Clause in Chapter 8. Barnett and Bernick argue
historical evidence establish an operational definition of Privileges and
Immunities of citizenship, which are “a set of rights that preexists the
interpretation and application of the clause by a judge. We maintain that, in
1868, a preexisting set of privileges and immunities was locked into the
Constitution by the original meaning of the 14th Amendment.”
The authors list and summarize these rights as those enumerated in the Constitution of 1868, the enumerated rights in the Civil Rights Act of 1866 and those enumerated rights added to the constitution after 1868. In addition, they list other unenumerated rights. Here they suggest that if individual citizens have for at least a generation of thirty years been entitled to enjoy a right as a consequence of accepted practice it can become a privilege and immunity of citizenship. The authors give examples as part of a thorough discussion of how this should work in practice, arguing in sum that judges should “discover the law” rather than “make the law.” Part I ends with “We can state with confidence that the original public meaning of the Privileges and Immunities Clause does “lock in” certain identifiable rights; that it does not lock in others; and that it does not delegate to Congress or the federal courts unbounded discretion to specify the rights that states cannot abridge.”
From here the book moves to a 53 page historical discussion of Due Process of Law and 52 page Part III on the Equal Protection of the Law. Both phrases apply to persons in contrast to the Privileges and Immunities of Citizenship. The narrative here traces the long history of the Due Process of Law back to its British origins. Discussion defines and distinguishes procedural due process and substantive due process. The spirit of substantive due process “impose a duty on both state and federal judges to make good-faith determinations of whether legislation is calculated to achieve constitutionally proper ends.” Historical discussion includes a review of legislative debate, legal cases and academic interpretations to bar arbitrary power and the proper ends of legislative power.
The Equal Protection of the Laws narrative also traces the meaning of equal protection through history. Again, Barnett and Bernick review the legislative debate, legal cases and academic writing. At a minimum equal protection guarantees a duty to protect against physical violence, but also entitles people to equal access to courts and nondiscriminatory enforcement of state and federal laws intended to protect life, liberty and property.
The Original Meaning of the 14th Amendment combines many elements of a textbook with a well-organized historical discussion used as evidence to support tightly focused argument. Barnett and Bernick appear to recognize the complexity of their effort and so use standard textbook devices to help readers. The introductory chapter includes a seventeen-page “Preview of Our Findings.” Chapters begin with summaries of what will come and chapters end with summaries of major points. Part and Chapter titles and many sub headings resemble a textbook’s emphasis on orderly presentation. Important legal and constitutional terms are explained. While the writing is clear and avoids academize, serious readers will feel a need to go back and reread sections as they move along in what is not light reading.
I looked for, but did not find, a discussion of the case of Santa Clara County v. Southern Pacific R. Co. from May 10, 1886, in which Chief Justice Waite declared "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." This declaration was not made as part of the case opinion but declared as true by proclamation in a case head note. To my knowledge it has never been disputed by Congress or a federal court, but has justified many judicial favors for corporate America, along with the prostitution of the 14th Amendment.
Barnett and
Bernick make a good case to justify their conclusions already cited above. The
founding fathers accepted slavery as a condition of getting the constitution
ratified. Even so Congress retained the power to abolish slavery in the
territories and the District of Columbia while northern states could protect
free blacks and escaped slaves. There was a begrudging acceptance of slavery
for what was initially an immoral Constitution, but Barnett and Bernick establish
the politicians that drafted and steered the 14th Amendment to
ratification intended to correct that, but they wanted more than that. The
record cited establishes they wanted to construct privileges and immunities of
citizenship known and protected equally for all. Since 1868 many judges and
justices in the courts seem to think their personal interpretation will be a
good substitute for the confines of positive law. Barnett and Bernick sound as tired of that as
the rest of us.
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