ࡱ> 68345` .wbjbjss ;n^4444444v4NLNLNL8L<LJbM:MMMMN%t(|>@@@@@@$ hqvd4NNd44MM4y4M4M>>44MVM @NW]NL>0b4$dd<NLNLHTr444444 101 YLJ 1385 (Cite as: 101 Yale L.J. 1385) Yale Law Journal May, 1992 *1385 RECONSTRUCTING THE PRIVILEGES OR IMMUNITIES CLAUSE John Harrison [FNd] Copyright 1992 by the Yale Law Journal Company, Inc.; John Harrison CONTENTS I. THE RIDDLE OF THE TEXT ............................................. 1389 A. Posing The Riddle ............................................... 1389 1. The Inadequacy of the Equal Protection Clause ............ 1390 2. The Mystery of the Privileges or Immunities Clause ....... 1391 3. The Riddle Restored ...................................... 1392 B. Other Interpreters .............................................. 1393 C. Method .......................................................... 1396 II. ANOTHER BRIEF HISTORY OF SECTION 1 ................................. 1397 A. The Comity Clause ............................................... 1398 B. The Thirtyninth Congress ....................................... 1401 1. The Civil Rights Act of 1866 ............................. 1402 2. The Joint Committee's First Proposed Amendment ........... 1405 3. The Fourteenth Amendment ................................. 1408 III. CITIZENS' RIGHTS ................................................... 1410 A. Equality and Discrimination ..................................... 1410 B. The Text of the Privileges or Immunities Clause ................. 1414 1. The Privileges and Immunities of Citizens ................ 1414 a. State or National Rights? ............................ 1414 b. State Privileges or Immunities as Positive Law Civil Rights ........................................................... 1416 2. Abridgment ............................................... 1420 3. Forbidding Abridgments of Privileges or Immunities ....... 1422 4. Other Rights of United States Citizens ................... 1424 C. The Civil Rights Act of 1875 .................................... 1425 IV. EQUALITY, PROTECTION, AND THE EQUAL PROTECTION CLAUSE .............. 1433 A. Equality In Everything or Equality in Protection ................ 1433 1. The Text ................................................. 1433 2. Protection By Government ................................. 1435 3. Reconstruction ........................................... 1436 a. Protection ........................................... 1436 b. Suffrage ............................................. 1438 c. The Broader Reading .................................. 1440 d. Citizens and Aliens .................................. 1442 B. Protection ...................................................... 1447 V. APPLYING THE RECONSTRUCTED PRIVILEGES OR IMMUNITIES CLAUSE ......... 1451 A. The Better View ................................................. 1451 B. The Doctrine Reconstructed ...................................... 1454 1. Privileges or Immunities ................................. 1454 2. Abridgment and Equality .................................. 1457 a. Caste Legislation and Abridgment ..................... 1457 b. Symmetrical Discrimination ........................... 1459 c. Beyond Race, Color, and Previous Condition of Servitude ........................................................ 1460 C. Applications .................................................... 1462 1. Compulsory Segregation ................................... 1462 2. Jury Selection ........................................... 1463 3. Reverse Preferences ...................................... 1463 4. Facially Neutral Laws, Proxies, and Shams ................ 1464 5. Incorporation of the Bill of Rights ...................... 1465 D. The Crescent City Company Reconsidered .......................... 1466 E. Paramount National Citizenship and Federalism ................... 1469 VI. CONCLUSION ......................................................... 1473 *1387 Section 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. [FN1] On June 8, 1866, as the Senate prepared to take its final vote on the proposed Fourteenth Amendment to the Constitution, Senator Reverdy Johnson of Maryland moved to delete the first part of the second sentence, the Privileges or Immunities Clause. He made the motion "simply because [he did] not understand what would be the effect of that." [FN2] The motion was rejected without a recorded vote, and the Amendment passed with the clause intact. [FN3] As usual, however, Reverdy Johnson had a point. [FN4] The clause mystifies us no less than it did him. [FN5] Judging by the Supreme Court's case law, one would think that Johnson's motion had passed. No important line of decision rests on the clause; every student of constitutional law quickly learns that it was virtually read out of the document by the SlaughterHouse Cases. [FN6] The disappearance of the Privileges or Immunities Clause, of course, has not kept Section 1 of the Fourteenth Amendment from becoming the principal font of constitutional law through the Due Process and Equal Protection Clauses. But this result seems upside down to those students of the Fourteenth Amendment who believe that the Privileges or Immunities Clause was thought by its framers to be one of the central elements of Section 1. [FN7] It is almost as strange as if the Supreme Court had developed its ramified system of federal jurisdiction doctrine solely in cases under the Multistate Land Grants Clause. [FN8] This Article is one more attempt to end this embarrassment. My main thesis rests on a distinction, central during Reconstruction and still familiar today, between substantive and equalitybased constitutional limitations. A substantive protection either prescribes or forbids a certain content of state law. An equalitybased protection, by contrast, says nothing about the substance of the state's *1388 law; it instead requires that the law, whatever it is, be the same for all citizens. I argue that the Privileges or Immunities Clause is, with respect to everyday rights of state law, the latter kind of protection. The main point of the clause is to require that every state give the same privileges and immunities of state citizenshipthe same positive law rights of property, contract, and so forthto all of its citizens. This equalitybased reading becomes the natural one once we understand that in 1866, when people discussed abridgments of the privileges or immunities of citizens, they mainly were talking about laws that deprived certain classes of citizens of the civil rights accorded to everyone else. Such abridgments were called Black Codes. The Codes, which the exConfederate states enacted in 1865 and 1866 before the onset of Radical Reconstruction, restricted freed slaves' rights to make and enforce private contracts, to own and convey real and personal property, to hold certain jobs, to seek relief in court, and to participate in common life as ordinary citizens. Some included vagrancy laws that effected a virtual return to slavery for those unfortunate enough to be caught up in them. [FN9] This equalitybased reading provides a solution to the larger riddle of the Fourteenth Amendment, namely discovering how the text of Section 1 accomplishes its primary purpose. That purpose was to mandate certain rules of racial equality, especially those contained in Section 1 of the Civil Rights Act of 1866. The Act guaranteed that black and white citizens would be equal with respect to a list of vitally important rights. My argument begins by demonstrating that such a riddle exists. With the problem identified, the discussion turns to a brief history of the Amendment's drafting. The principal lesson to be drawn is the centrality of the Civil Rights Act. With that history in mind, I take up the concept of equality as it was understood during Reconstruction, suggesting that the Republicans phrased their opposition to race discrimination in terms of the more general principle that all citizens were entitled to the same basic rights of citizenship. In the terminology of Reconstruction and the Fourteenth Amendment, a law abridged a state law right when it took that right away from only one group of persons. Black Codes served as the quintessential example of an abridgment of state law rights. A law changing the content of a right equally for everyone was not an abridgment. The privileges or immunities of citizens of the United States include the very rights deriving from state law that were restricted by Black Codes. [FN10] Thus, an amendment that forbade the states from abridging *1389 privileges or immunities would ban caste legislation with respect to citizens' rights and place the principle of the Civil Rights Act in the Constitution. The natural objection is that I have misplaced the Fourteenth Amendment's requirement of equality. Orthodox teachings maintain that the Equal Protection Clause constitutionalizes the Civil Rights Act of 1866. This orthodoxy, however, is belied by the way in which the concept of the "protection of the laws" was used in 1866. [FN11] I argue that the framers of the Fourteenth Amendment more likely understood the "protection of the laws" to be a narrower body of rights than either "the privileges and immunities of citizens" or those given attention by the Civil Rights Act. Thus, the Equal Protection Clause is not best understood as accomplishing the principal purpose of Section 1 of the Fourteenth Amendment. After presenting this interpretation of the two clauses, I consider the real meaning of the Privileges or Immunities Clause in more detail and discuss its application to various Fourteenth Amendment questions. I do not suggest that there are easy answers to the questions thus formulated, but they have the virtue of being the Constitution's questions rather than our own. I. THE RIDDLE OF THE TEXT A. Posing The Riddle This Article suggests an unorthodox reading of the Privileges or Immunities Clause of the Fourteenth Amendment. [FN12] That reading is part of an attempt to do something surprisingly difficult: to explain how the language of the Amendment can have the meaning that it is supposed to have. Virtually everyone agrees that Section 1 of the Fourteenth Amendment was intended at least to empower Congress to pass the Civil Rights Act of 1866. [FN13] Most students of history would go a bit further and say that the Amendment actually writes the *1390 substance of the 1866 Act into the Constitution. [FN14] Any theory of the Fourteenth Amendment must therefore explain how it validates the Civil Rights Act. 1. The Inadequacy of the Equal Protection Clause The answer is not immediately obvious. The Civil Rights Act first makes certain people citizens of the United States. It then in effect forbids the states from discriminating among citizens on the basis of race, color, or previous condition of servitude with respect to a number of matters. If we turn to the Amendment, things get off to a good start. It too begins by defining American citizenship so that nativeborn former slaves will be citizens. The analysis breaks down, however, when we try to match the Act with the second sentence of Section 1. The orthodox derivation of the Act from the words of the Amendment holds that the Equal Protection Clause does the job. The clause does have the word "equal" in it, but its suitability for this task ends there. First, unlike both the Civil Rights Act and the Privileges or Immunities Clause, the Equal Protection Clause extends to all persons, not simply citizens. This difference, which is striking to begin with, becomes more suspicious when we realize that nineteenthcentury American law frequently distinguished between the rights of citizens and the rights of noncitizens, principally aliens. [FN15] Second, the Equal Protection Clause's function as the basis of the Act rests on a piece of textual sleight of hand familiar from Yick Wo v. Hopkins, [FN16] which asserts that "the equal protection of the laws" means "the protection of equal laws." [FN17] If that seems obvious to us, it is because custom has run a groove in our minds. By shifting the focus from "protection" to "laws," the Yick Wo maneuver draws our attention away from the embarrassing fact that the subject of the Equal Protection Clause is protection. That word suggests either the administration of the laws or, if it is about their content, laws that protect as opposed to laws that do other things. In order for the clause to be a requirement of equality in everything the states do, the word "protection" must simply drop out, so that the text would read "equal laws" rather than "the equal protection of the laws." *1391 2. The Mystery of the Privileges or Immunities Clause If the Equal Protection Clause is ill adapted to the function it is has long been called on to perform, we must look to the Privileges or Immunities Clause, which seems promising at first. Like the Act, and unlike the Equal Protection Clause, it deals with the rights of citizens. Better yet, it refers to the "privileges or immunities of citizens," which in the 1860's often meant the very private law rights of contract and so forth that the Act dealt with. But although the Act and the clause appear to deal with the same subject matter of citizens' rights, they seem to provide different kinds of protection. Recall the distinction noted earlier between equalitybased and substantive provisions. The Act is an antidiscrimination requirement that says nothing about the content of state laws. Thus, it is an equalitybased provision. The clause, by contrast, reads like the First Amendment, which forbids Congress from abridging the freedom of speech. The content of the freedom of speech is given by the Constitution, not by Congress. If the Privileges or Immunities Clause is like the First Amendment in this regard, it is not an antidiscrimination provision but a substantive protection for the privileges and immunities of citizens of the United States, whatever those rights may be. If that is what the clause means, our search for the ground of the Act is in serious trouble. As a substantive provision, the Privileges or Immunities Clause could mean one of two things. First, the privileges and immunities it protects might be rights that are not identical to the specific rights contained in the positive law of the states. In that case, the clause requires that the law of every state be such as not to invade the related protected right. For example, it could require that the Maryland law of contract respect some minimum right to enter into agreements. This limitation would not, however, dictate all of Maryland's contract law; the parol evidence rule could take any number of forms. If the Privileges or Immunities Clause gives this kind of substantive protection, then it does not constitutionalize or authorize the Civil Rights Act. Consider a federal constitutional provision stating that everyone shall have a substantive right to own property. This gives everyone the same minimum rights. But it is not equivalent to saying that everyone shall have the same right to own property. As long as there is any form of property ownership that is outside the minimumsay, the right to own in tenancy by the entiretiesthe states will remain free to create that form or not, and to permit only certain *1392 persons to enjoy it. [FN18] Absolute protection for the minimum has no effect on, and therefore does not mandate equality with respect to, anything outside of the minimum. The second possibility, if the clause is substantive, is that the privileges and immunities of citizens are not minimum rights, but a complete specification of the law in certain areas. This reading would constitutionalize the Civil Rights Act in a sense, because the law it created would be the same for all races. Such a reading, however, would achieve this constitutionalization by dictating most of state law. There is but one Fourteenth Amendment, which applies to all the states and cannot be changed without amending the Constitution. As a result, it would be impossible for the states or Congress to change, say, the rule against perpetuities; moreover, questions would inevitably arise concerning exactly what form of that ruleamong the various forms in use among the stateshad been constitutionalized. 3. The Riddle Restored Herein lies the riddle. The Equal Protection Clause seems to have the necessary focus on equality, but its subject matter is limited to the protection of the laws, and it extends beyond citizens to all persons. The Privileges or Immunities Clause has the right subject matter and the right coverage, because it is about citizens' rights, but it appears to be a substantive limitation, not a ban on discrimination. Neither seems to require equality with respect to the rights of citizenship set out in the Civil Rights Act. How, then, did the Fourteenth Amendment constitutionalize the Act? The standard response to these textual criticisms is to attribute the difficulties to inept draftsmanship, in particular the sloppiness of Representative John Bingham of Ohio, the principal author of the second sentence of Section 1. [FN19] This suggests that we simply must live with a gap between the words of the Amendment and the legal rules it enacts. We need not. I offer a reading of Section 1 that is textually sound and that constitutionalizes the Civil Rights Act without writing a uniform national private law into the Constitution. This reading revolves around an unfamiliar way of understanding the Privileges or Immunities Clause, under which it ensures that all the citizens of every state *1393 shall be entitled to the privileges and immunities of state citizenship, thereby mandating equality of rights. B. Other Interpreters While such an understanding is unfamiliar, it has significant advantages over current suggested readings of the Privileges or Immunities Clause. Interpreters of the clause fall roughly into two groups: David Currie and everyone else. Only Currie, to my knowledge, maintains that the clause is primarily an antidiscrimination provision. [FN20] Under his reading, the actual content of the privileges and immunities of citizens of the United States is given by positive law, state and national, rather than by the Fourteenth Amendment. What is crucial is not the content of those rights but the understanding that guaranteeing all citizens their state law rights would constitutionalize the Civil Rights Act. This Article provides an explanation of how the text of the clause can mean what Currie and I say it means, and of how that meaning is rooted in the thought and usage of the Reconstruction Republicans. I also present passages from the legislative history of the Reconstruction era in which the equalitybased reading of the Privileges or Immunities Clause was employed, and I give a more extended account of the application of the clause in its antidiscrimination mode. Other contemporary students of the Privileges or Immunities Clause assume that it is a substantive provision like the First Amendment, and that the trick is to understand the phrase "privileges or immunities of citizens of the United States" as we might try to understand the freedom of speech. [FN21] Possible meanings generally fall into three classes. Best known are the rights contained in the first eight amendments to the Constitution, stripped of the labels that identify them as pertaining only to the federal government. [FN22] Next, some commentators maintain that privileges and immunities include constitutionally protected versions of natural rights in a Lockean sense, preeminently rights of private *1394 property and liberty of contract. [FN23] Finally, some have suggested that the phrase requires us to construct a general notion of national citizenship and its rights based on the structure of the Constitution and the relationship that it establishes between government and the individual. These possibilities can be mixed and matched. Justice Hugo Black maintained that the clause applies the first eight amendments to the states and does nothing else. [FN24] William Winslow Crosskey took the same view. [FN25] A more recent exponent of Crosskey's thesis, Michael Kent Curtis, suggests that the privileges and immunities referred to by the clause include the rights of the Bill of Rights, other personal rights contained in the Constitution such as the writ of habeas corpus, and other fundamental rights. [FN26] The best known critic of Justice Black's view, Charles Fairman, denied total incorporation but evidently thought that, to the extent that the clause has an intelligible meaning at all, it protects those Bill of Rights liberties that qualify as fundamental. [FN27] Others emphasize natural rights of property and liberty. Bernard Siegan maintains that the clause embodies a doctrine of natural rights familiar to us from the oldstyle substantive due process [FN28] embodied in Lochner v. New York. [FN29] Bruce Ackerman evidently endorses a Lockean reading of the clause's original meaning. [FN30] John Hart Ely develops a national citizenship theory most *1395 extensively: he argues that the privileges and immunities of citizens include "representationreinforcing" rights that are necessary to ensure a pluralistic political system and to protect political minorities from breakdowns in pluralistic politics. [FN31] Other theories of the clause argue that we can find its full meaning by relating it to other parts of the Fourteenth Amendment. Raoul Berger maintains that the Privileges or Immunities and Equal Protection Clauses, taken together, forbid race discrimination with respect to the rights listed in the Civil Rights Act of 1866 and no others. According to Berger, the content of the constitutional rule comes from the concept of privileges or immunities, while its antidiscrimination character comes from the requirement of equal protection. [FN32] Robert Kaczorowski suggests that Section 1 of the Amendment achieves its full meaning in connection with the enforcement power contained in  HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1006095&DocName=CTRSCGS5&FindType=L" Section 5, and that together they give Congress power to define and protect rights of national citizenship. [FN33] All the substantive readings, however, contain important flaws. First, by focusing on the rights of national citizenship, they ignore the state citizenship guaranteed by the first sentence of Section 1 and therefore provide at most an incomplete account of the citizenship rights protected by the clause. Next, they make it impossible for the Privileges or Immunities Clause to ground the Civil Rights Act. Precisely because they require that the states respect whatever substance the concept of "privileges or immunities" has, they cannot produce the purely equalitybased character of the Act, which permits the states to have any private law they like, as long as it is the same for all citizens. The readings that find their content in natural rights or some general notion of citizenship make the clause quite difficult to interpret: it is much harder to read the law of nature than of, say, Georgia. Incorporation is subject to the traditional objection that the phrase "privileges or immunities" seems a rather indirect way of saying something very simple. Finally, all of these readings, by requiring *1396 that the Equal Protection Clause be broad enough to encompass the Civil Rights Act, put weight on that clause that it does not easily bear. The problematic nature of the clause, and of most of the theories of it that have been put forward, has led some commentators simply to throw up their hands. Fairman intimated such sentiments, but the most prominent prophet of despair is Judge Robert Bork, whose view probably represents the conventional wisdom. He observes that no consensus has ever developed on even the rough outlines of the provision's meaning and suggests that because it is unintelligible we should therefore treat it as we would a provision that was obscured by an ink blot. [FN34] While I agree that Judge Bork's conclusion follows from his premise, the purpose of this Article is to render that premise obsolete. C. Method The historical discussion that follows will be guided by the riddle posed here: How does the Fourteenth Amendment place the antidiscrimination rule of the Civil Rights Act of 1866 into the Constitution? My answer is that it does so through the Privileges or Immunities Clause. First, the privileges and immunities of state citizenship include the legal rights referred to by the Civil Rights Act. Second, a restriction of a citizen's rights, on a basis that is incompatible with the Reconstruction idea of equality, constitutes an abridgment of rights. The clause therefore ensures that when a state's law defines these rights, it does so in keeping with that idea of equality. [FN35] I accompany this reading of the Privileges or Immunities Clause with an unfamiliar reading of the Equal Protection Clause, which interprets it as requiring equality only with respect to the protection of the laws, a subset of the functions of government. That subset consists of the remedial aspects of law that protect primary rights. Not only is that subset smaller than all the activities of government, it is smaller than the privileges and immunities of citizens. *1397 For each of these interpretations, my claims are twofold. First, I assert that the interpretation that I urge is one that someone in 1866 could have meant by the language of the two clauses. The most important part of the Article concerns this claim with respect to the Privileges or Immunities Clause. In order to make the claim, I have recovered and reassembled the conceptual and terminological building blocks of the equalitybased reading. Those building blocks consist of the idea of the privileges and immunities of state citizenshipthe everyday rights covered by the Civil Rights Act of 1866 and the idea that a state abridges a state law right when it denies that right to a class of citizens, but not when it alters the content of that right equally for all. If we understand the text of the Privileges or Immunities Clause this way, then it forbids Black Codes but does not forbid changes in, for example, the law of real property. Second, I claim that, in fact, some Republicans adopted the equalitybased view of the Privileges or Immunities Clause during Reconstruction. I do not mean to suggest that it was the only reading put forth or accepted. Indeed, I hesitate to attribute to most participants in the framing and ratification of the Fourteenth Amendment any precise notion of the meaning of Section 1, other than that it was designed to forbid Black Codes and constitutionalize the Civil Rights Act of 1866. Similarly, with respect to the Equal Protection Clause, I note that in the nineteenth century, the phrase "the protection of the laws" was used to refer to the rules, institutions, and activities of government that secured rights against invasion. Again, there is evidence that this understanding was common, although probably not universal, among Republicans. Beyond that, I avoid saying much about broader questions concerning Reconstruction. In particular, this Article asserts nothing (or almost nothing) about the relative strength of conservative, moderate, and radical Republicans during the framing and ratification of the Fourteenth Amendment. Although such questions of political history are common fare, I do not feel competent to address them. Fortunately, it is not necessary to do so in order to recover the equalitybased reading of the Privileges or Immunities Clause. III. CITIZENS' RIGHTS A. Equality and Discrimination Orthodox equal protection jurisprudence assumes that the Fourteenth Amendment contains some general principle of equality or antidiscrimination that incorporates the Civil Rights Act of 1866 without mentioning race, color, or previous condition of servitude. That general principle is assumed to be built into the word "equal" in the Equal Protection Clause. Orthodox thinking presents the clause as the means by which the Amendment contains the Act, even though the Amendment's text resembles neither the Act nor a more conventional antidiscrimination provision, such as the Fifteenth Amendment. [FN89] There are two leading candidates for the general principle of equality. One treats the Equal Protection Clause as if it were a badly drafted marker for a list of antidiscrimination rules. [FN90] The other suggests that the clause stands for the principle that "arbitrary" or "invidious" decisionmaking is forbidden. [FN91] *1411 Standard equal protection jurisprudence, faced with the inescapably general text of the clause, appeals to a notion of general equality or impartiality in lawmaking. On this score it is historically sound. The Republicans who dominated the Thirtyninth Congress did indeed conceive of such a notion, one that would preserve state control over the content of law while demanding that the laws apply to all citizens equally. Most of them seem to have thought that the principle of racial neutrality was derived from this more general principle that all citizens should have the same rights. We can begin to see this by examining the Civil Rights Act of 1866. The Act banned discrimination by saying that citizens were to have the same rights. [FN92] The original draft of the Act is even more striking. It began with an explicit ban on race discrimination, [FN93] and then moved seamlessly to mandate that "the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude ..., shall have the same right to make contracts and so forth " [FN94]not the same rights as white citizens, which would limit the equal rights principle to racial neutrality, but simply the same rights. While that latter mandate follows an ordinary ban on race discrimination and seems to be one because it mentions race, syntactically it is not: the modifying clause "of every race and color" does not limit the general statement that all citizens shall have the same rights. [FN95] Such an emphasis on general equality should not be surprising, because the Republicans were fond of speaking in such terms. Senator Trumbull made the general principle of equal rights, not racial neutrality per se, the basis of the Civil Rights Act itself. Trumbull said of the Black Codes, "[A]ny statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which by the Constitution is prohibited." [FN96] *1412 Trumbull derived his ban on race discrimination from the more general principle of the equality of citizens. [FN97] The rhetoric of general equality was also common in the debates on the Fourteenth Amendment. Representative Henry Raymond, Republican of New York, explained that Section 1 "secures an equality of rights among all the citizens of the United States." [FN98] When he introduced the Fourteenth Amendment in the Senate, Senator Howard said that Section 1 "establishes equality before the law," and that " w ithout this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government." [FN99] This doctrine of general equality meant, as Thaddeus Stevens put it, that "the law which operates upon one man shall operate equally upon all." [FN100] It said nothing, however, about the content of that law. This point was important because opponents claimed that the Civil Rights Bill intruded into the reserved powers of the states concerning the rights of property, contract, and so forth. [FN101] In response, Republicans contended that the states still would be able to give their citizens whatever rights they liked, as long as everyone got them. [FN102] This meant that equality provisions maintained the basic structure of American federalism. [FN103] Although a national principle of equality would impose *1413 a significant new limit on the states, it was still a far cry from actual centralization. [FN104] The Republican concept of general equality thus distinguished between the content of citizens' rights and the decision as to who would enjoy those rights. This distinction has its sharpest and most important application with respect to laws that explicitly modify the rights of one group of people. As Senator Howard explained, the purpose of the Fourteenth Amendment was to put an end to such laws, to "abolish[] all class legislation in the States and [do] away with the injustice of subjecting one caste of persons to a code not applicable to another." [FN105] The concern with "class" or "caste" legislation, laws that say which citizens shall have which rights, seemed quite natural during early Reconstruction because it was exemplified in the immediate target of the Civil Rights Act of 1866 and Section 1 of the Fourteenth Amendment: the Black Codes. The Black Codes generally modified the rights of freed slaves in a straightforward way and thus directly violated the principle of general equality. Laws that contained special limitations on freedmen's capacities as witnesses in court were common. [FN106] A Mississippi law that especially infuriated the Republicans directly distinguished the content of rights according to which class would exercise them. It granted blacks the property rights enjoyed by white persons but forbade them from renting or leasing lands or tenements "except in incorporated towns or cities in which places the corporate authorities shall control the same." [FN107] The Black Codes were archetypes of unequal legislation. *1414 B. The Text of the Privileges or Immunities Clause To see how the language of the Privileges or Immunities Clause implements the principle of general equality respect to the rights of citizens, we must understand more clearly the vocabulary of Reconstruction. 1. The Privileges and Immunities of Citizens b. State Privileges or Immunities as Positive Law Civil Rights The privileges and immunities of state citizenship are rights like, and probably consist mainly of, those listed in the Civil Rights Act of 1866. Those are private law rights of property ownership, contractual capacity, and personal security, and access to governmental mechanisms that protect those primary rights. The saliency of state private law rights appears first of all from a comparison of the Act with the leading authority on the substance of privileges and immunities, Corfield v. Coryell. [FN117] The Civil Rights Act guaranteed racial equality with respect to the basic rights of the common law. According to Corfield, the Comity Clause guarantees interstate equality with respect to the privileges and immunities of citizens. These privileges and immunities closely foreshadow the common law rights protected by the 1866 Act. [FN118] Someone who started with Corfield could easily end up drafting the Civil Rights Act. The debates on the Act and the Amendment reflect this near equivalence, sometimes suggesting that the words "rights," "privileges," and "immunities" were almost interchangeable. The original draft of the Civil Rights Act forbade discrimination as to "civil rights or immunities." [FN119] When he introduced the bill, Senator Trumbull complained that the Black Codes "depriv ed persons of African descent of privileges which are essential to freemen." [FN120] A few moments later, in order to enumerate the fundamental civil rights that accompanied free citizenship, he turned to the Comity Clause and specifically to Justice Washington's list of privileges and immunities in Corfield. [FN121] Similar usage was common. Representative Henry Raymond of New York supported the Fourteenth Amendment in part because he favored giving freedmen "the rights, privileges, and immunities of other citizens of the United States, whatever those rights may be." [FN122] Senator Lane of Indiana claimed *1417 that the Civil Rights Act was proper because, after emancipation, freedmen were "free by the constitutional amendment lately enacted, and entitled to all the privileges and immunities of other free citizens of the United States." [FN123] Speaking in opposition to the Fourteenth Amendment, Democratic Representative Andrew Jackson Rogers of New Jersey complained that "all the rights we have under the laws of the country are embraced under the definition of privileges and immunities." [FN124] Despite Representative Rogers' hyperbole, nineteenthcentury usage concerning political participation confirms the close connection between privileges and immunities and civil rights: neither was thought to extend to political rights, such as voting or serving on juries. [FN125] Political rights were commonly distinguished from civil rights, and only a subset of the citizens had the right to participate politically. [FN126] Justice Washington's suggestion that the right to vote was a privilege of citizenship under the Comity Clause appears to have been the minority view. [FN127] Most Republicans agreed that neither civil rights nor privileges and immunities included political rights, [FN128] and legal usage generally appears to have reflected this approach. [FN129] *1418 The privileges and immunities of state citizenship thus consisted of the rights protected under the traditional reading of the Comity Clause. These rights are not minimum Lockean freedoms but rather a full specification of state law on basic subjects. Senator Trumbull relied on the standard theory of the Comity Clause, and the positive law notion of privileges and immunities that accompanies it, in explaining the Civil Rights Bill. He said that the bill would apply the Comity Clause rule of interstate equality within the states, noting that Article IV gave the same rights to visiting Americans from out of state that were given to local citizens. [FN130] He then cited an Indiana case for the proposition that the Comity Clause "gives to every person who is a citizen of one of the States the same rights to hold property, the same personal rights, that the citizen of that State has." [FN131] After the obligatory quotation from Corfield, Senator Trumbull maintained that the principle of the Comity Clause should be applied within states: "Now, sir, if that be so, this being the construction as settled by judicial decisions to be put upon the clause of the Constitution to which I have adverted, how much more are the nativeborn citizens of the State itself entitled to these rights!" [FN132] Those were said to be rights defined by the state's own laws. [FN133] Senator Trumbull's thinking was fairly clear. Representative Bingham's was far from that, but he seems to have agreed that the privileges and immunities of citizens of the United States, as protected by the Comity Clause and the Fourteenth Amendment, included rights defined by state law. [FN134] Bingham, in *1419 1859, said that the proposed constitution of Oregon violated Article IV because it discriminated against blacks with respect to the most important common law rights. These rights later would appear in the Civil Rights Act of 1866. [FN135] During the 1867 debate on Nebraska's admission to the Union, Bingham spoke of Article IV as if it required equality in state law matters. [FN136] This understanding of the content of privileges and immunities matches Bingham's indications that both clauses of his original proposal were equality requirements. [FN137] This is not to suggest that everyone who participated in framing and ratifying the Fourteenth Amendment thought that the privileges or immunities of citizens consisted of rights defined by state positive law. Some thought that the phrase referred to Lockean natural rights defined without reference to the law of any state. [FN138] But the positive law, antidiscrimination reading of the concept was very common, and, against the background of the orthodox reading of the Comity Clause, it was probably the dominant view. [FN139] We are therefore *1420 justified in reading the Fourteenth Amendment as including positive law rights of state citizenship within the scope of the privileges and immunities of citizens. [FN140] 2. Abridgment The principal textual argument favoring a substantive reading of the Privileges or Immunities Clause is that it would be senseless to prohibit a state from abridging a right that is defined under state law; power over a right's content implies the power to change the right at will. This reading gains support from the language of the First Amendment: if Congress can specify the content of the freedom of speech, Congress surely must have the power to abridge it. A closer examination of the Constitution, however, reveals a reference to the abridgment of a right whose substance is under the states' control.  HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1006095&DocName=CTRSCGS2&FindType=L" Section 2 of the Fourteenth Amendment reduces the representation in Congress of any state if the right to vote of its male citizens older than 21 is "denied ... or in any way abridged." [FN141] The right to vote is clearly associated with organized government. Where there is no government there is no voting. [FN142] Moreover, *1421 the right to vote is largely a subject of state, not federal, law. [FN143] A state defines the right of its electors to vote when it decides on the terms of its officers, and when it decides which ones shall be elected by popular vote. If all legislation that affected voting rights abridged the right to vote, then no state would have any representation in the House. All political systems have laws that define and thus in some sense limit voting rights. The wording of the Fourteenth Amendment thus presupposes that one can speak meaningfully of abridging a right defined by a state's positive law, and therefore that one can tell the difference between a change in the content of the right and an abridgment. Moreover, the historical context of  HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=1006095&DocName=CTRSCGS2&FindType=L" Section 2 provides the classic instance of abridgment: restriction based on race, color, or previous condition of servitude. The concept of abridgment reflects the Republican notion of equality, which distinguishes between laws that set out the content of rights and laws that take rights away from a class of individuals. The Civil Rights Act of 1866 spoke to the latter. A state that established the same rights for all races was not affected by the Act. Usage in 1866 supports the claim that "abridgment" was understood in this way. Legislators described the Black Codes as abridging or limiting rights, even though Republicans repeatedly asserted, and the Civil Rights Act assumed, that the states had control over the content of those rights. Senator Timothy Howe, Republican of Wisconsin, advocated the Fourteenth Amendment in a denunciation of the Black Codes by complaining that they abridged the privileges and immunities of classes of citizens. [FN144] Similarly, Senator Trumbull complained that the Black Codes "deny the freedmen certain rights." [FN145] Senator Howard denounced the codes, asking, "Is a freeman to be deprived of the right of acquiring property, of the right of having a family, a wife, children, home?" [FN146] Representative Wilson argued that the Civil Rights Act would combat state deprivations of rights: "And should a State enact laws and attempt to enforce them which shall deprive the citizens of the United States of those rights of life, liberty, and property , may we not intervene to protect them in spite of the *1422 laws of the State?" [FN147] The Republicans thought that to abridge or restrict rights was different from changing their content. The latter was ordinary lawmaking; the former was caste legislation. 3. Forbidding Abridgments of Privileges or Immunities The previous discussion provides us with a clearer insight into the language of the Privileges or Immunities Clause. The privileges and immunities of state citizenship include those rights of state positive law that come within the category of privileges or immunitiespreeminently the rights of personal security, contractual capacity, and property, along with access to the mechanisms of government that protect them. A state abridges such rights when it withdraws them from certain citizens, but not when it alters their content equally for all. The following two formulations would therefore equivalently express the principle of general equality with respect to privileges and immunities of state citizenship: (1) every state shall give the same privileges and immunities to all its citizens; (2) no state shall abridge the privileges or immunities of any of its citizens. Both forbid Black Codes and imply Section 1 of the Civil Rights Act of 1866. [FN148] Neither strips a state of its power over the content of its citizens' rights. The Privileges or Immunities Clause thus reads as it does: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." [FN149] *1423 This seems to have been the understanding of the clause held by Representative Thomas Eliot, a Republican from Massachusetts, who paraphrased what is now the second sentence of Section 1 during the debates on the Fourteenth Amendment: I support the first section because the doctrine it declares is right, and if, under the Constitution as it now stands, Congress has not the power to prohibit State legislation discriminating against classes of citizens or depriving any persons of life, liberty, or property without due process of law, or denying to any persons with the State the equal protection of the laws, then, in my judgment, such power should be distinctly conferred. [FN150] Note that Eliot rephrased the Privileges and Immunities clause, but evidently thought the other two clauses could speak for themselves. A clear explanation was given by thenSenator Boutwell a few years after the Amendment passed. [FN151] To determine a citizen's rights under the clause, he said, we see what the rights and privileges and immunities of citizens of the State generally are under the laws and constitution of the State.... The Government of the United States can take the humblest citizen in the State of Ohio who by the constitution or the laws of that State may be deprived of any right, privilege, or immunity that is conceded to the citizens of that State generally, and lift him to the dignity of equality as a citizen of that State .... [FN152] Similarly, Representative Shellabarger said that the clause [r]equires that the laws on their face shall not "abridge" the privileges or immunities of citizens. It secures equality toward all citizens on the face of the law. It provides that those rights shall not be "abridged;" in other words, that one man shall not have more rights upon the face of the laws than another man. By that provision equality of legislation, so far as it affects the rights of citizenship, is secured. [FN153] *1424 Some Republicans adopted the equalitybased reading with respect to rights of state citizenship. If this conclusion seems odd, it is probably because we no longer distinguish so easily between a state's power over the content of its citizens' rights and its power to determine which citizens shall have those rights. This change in perspective probably reflects an increase in legislative activity. In 1866, the privileges and immunities of citizenship were determined mainly by the common law and were fairly static. It was therefore easy to recognize a distinction between a change in the substantive law and an abridgment such as a Black Code. We are now used to legislation that rearranges people's private law relationships, and it seems strange to say that a change in the law of contract that restricts someone's rights does not abridge privileges or immunities. [FN154] This reading offers a solution to the riddle of the text. The Privileges or Immunities Clause can be understood to mandate the rule of the Civil Rights Act of 1866. 4. Other Rights of United States Citizens The Civil Rights Act does not exhaust the meaning of the Privileges or Immunities Clause. The privileges and immunities of citizens of the United States include rights as defined by the positive law of their states; to abridge such rights is to take them away through unequal legislation. But citizens of the United States are citizens both of states and of the nation. Justice Miller was therefore correct in saying that the clause forbids the abridgment of rights created or protected by national law. I will put aside the important question of whether this protection is completely redundant. It is certainly redundant with respect to those rights of national citizenship that were protected against the states before the Fourteenth Amendment was adopted, such as the right created by the Contracts Clause. [FN155] A more difficult question is whether there are privileges or immunities of United States citizenship that the states did not have to respect before the Amendment came into force but that became protected as a result of the Amendment. If such rights exist, then the clause has independent substantive *1425 effect, because those rights of national citizenship would no longer be subject to control by the states. As explained below, the most important issue turning on this question involves the application of the first eight Amendments to the states. [FN156] C. The Civil Rights Act of 1875 One of the reasons that Section 1 of the Fourteenth Amendment is so notoriously frustrating is that there is no contemporaneous written explanation that carefully goes through the textespecially the Privileges or Immunities Clauseclarifying its meaning and purposes. The history of the Civil Rights Act of 1875, however, contains substantial evidence to support my proposed reconstruction. [FN157] The Act banned race discrimination by common carriers, inns, and places of public amusement, and forbade race discrimination in jury selection by the states. The debates on the Act are a rich source of information about how the Fourteenth Amendment was understood at the time of its adoption, and they show that the equality theory of the Privileges or Immunities Clause was prominent among Republicans. * * * * * To summarize, the theory of the Fourteenth Amendment that I present here was current in the early 1870's. Many leading Republicans believed that Congress' power to pass civil rights legislation derived from the Privileges or Immunities Clause. Senator Carpenter, one of the nation's preeminent lawyers, explained the clause explicitly in terms of equal citizens' rights. The opponents of the 1875 Act also understood the Privileges or Immunities Clause to be the proffered constitutional warrant for the legislation. Thus, when the Court in SlaughterHouse held that the clause had nothing to do with rights of state citizenship, those opponents put this case at the center of their argument. Before SlaughterHouse was decided, and even for a short while thereafter, Republicans *1433 in Congress thought that the Privileges or Immunities Clause mandated equality with respect to the rights of state citizenship. IV. EQUALITY, PROTECTION, AND THE EQUAL PROTECTION CLAUSE The foregoing approach to the Privileges or Immunities Clause has been guided by an attempt to determine how the clause could be the ground for the Civil Rights Act of 1866. [FN196] The natural response to this approach is to say that the attempt is unnecessary and any equalitybased reading of the clause is redundant because the Equal Protection Clause provides the necessary ground and more. According to the orthodox view, the Equal Protection Clause mandates equality in all state actions. [FN197] This venerable position, which may have been taken by some participants in the framing debates, is often attributed to the Supreme Court's first great Equal Protection Clause case, Strauder v. West Virginia. [FN198] It is, however, unpersuasive when examined closely. On the contrary, it is more plausible to conclude that the Equal Protection Clause requires equality with respect to the "protection of the laws," a subset of the activities of government and, crucially, of the privileges and immunities of citizens. In short, the Equal Protection Clause is mainly about protection, even though it is about equality too. In this part of the Article, I will first try to shake our traditional understanding of the Equal Protection Clause and then sketch the rudiments of a reading that is more in keeping with the provision's text and history. A. Equality In Everything or Equality in Protection 1. The Text The challenge to orthodoxy begins with the language of the clause. [FN199] "No *1434 State shall ... deny to any person within its jurisdiction the equal protection of the laws." Those words require equality with respect to something, and our ordinary understanding of the Equal Protection Clause is that they require equality with respect to everything. This may seem obvious, but it is not. If the Constitution contained a provision forbidding any state from denying to anyone the equal right to trial by jury, no one would think that it applied to anything other than jury trials. [FN200] But the orthodox view holds that the clause does not refer to any right in particular, but to all rights. The standard reading, then, rests on the premise that the "protection of the laws" means the same thing as, for example, "treatment under the law" or simply "laws." That last statement makes the point rather strikingly: the word protection is not doing much work in the standard reading of the text. Nothing is gained by going from "equal laws" to "the equal protection of the laws." If orthodoxy is correct, the noun in the Equal Protection Clause is, at best, surplusage. I say at best, because the word actually obscures the universal sweep of the text that the standard reading demands. The word protection, if taken in its ordinary sense, has meanings that make it difficult for the clause to apply to everything a state does. For one, the protection of the laws can refer to an operation or activity of the laws, which suggests that the Equal Protection Clause governs the administration or execution of the laws rather than their content. But if protection refers only to application and not to substance, the clause is not all encompassing and could not generate the Civil Rights Act of 1866. The language could, however, be looser"protection" might signal that the clause refers to laws that have to do with protecting something. If that is what is going on, the clause once again cannot require equality in everything, because by hypothesis it does not govern laws that do not have to do with protection, whatever protection might be about. The standard reading of the clause is persuasive only as long as we stress the adjective while ignoring the noun. It rests on a belief that there is no distinctive "protection of the laws" separate from "the laws." If that belief is not correct, then, parallel to the right to jury trial in the example above, the clause must have a nonuniversal content, limited to the protection of the laws, however that may be understood. *1435 2. Protection By Government In fact, usage in the nineteenth century and during Reconstruction recognized something called the protection of the laws, which was a central function of government, but did not include everything that the government did. Specifically, "protection of the laws" referred to the mechanisms through which the government secured individuals and their rights against invasion by others. That the basic function of government was to protect people's rights was a commonplace. [FN201] The Lockean bargain, by which the citizens give the government a promise of obedienceallegianceand receive security for their rights in return, was explained by Blackstone, who said that the "original contract of society" was that the whole should protect all of it's [sic] parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any. [FN202] In America, this basic purpose of the state made it on to Justice Washington's Corfield list, which included "[p]rotection by the government" among the privileges and immunities of citizens. [FN203] During the debate on the Civil Rights Act of 1866, Representative James Wilson of Iowa, chairman of the House Judiciary Committee, invoked the connection between allegiance and protection. [FN204] Wilson's remarks made clear that the remedies government provides when citizens' rights are invaded are essential to government's protective function. [FN205] *1436 The remedial function of government sometimes went by the name of the protection of the laws. The phrase appears in Blackstone, who characterized "[t]he remedial part of the law" as "the protection of the law." [FN206] The words made their way to America at least by 1803, when Chief Justice Marshall explained that someone possessing a right to his commission had a remedy at law because " t he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." [FN207] Marshall's successor, Chief Justice Taney, quoted Blackstone's definition of the protection of the laws as their remedial operation in an 1843 opinion involving the Contracts Clause. [FN208] 3. Reconstruction a. Protection The Equal Protection Clause grew out of proposals in the Thirtyninth Congress that dealt with this concept of the protection of the laws. On January 20, 1866, the Joint Committee considered a subcommittee proposal for a constitutional amendment that would give Congress power "to secure ... to all persons in every State equal protection in the enjoyment of life, liberty, and property." [FN209] A few days later the same subcommittee prepared a draft providing that Congress would have power "to secure all persons in every State full protection in the enjoyment of life, liberty, and property; and to all citizens of *1437 the United States, in any State, the same immunities and also equal political rights and privileges." [FN210] Similarly, Bingham's February draft, which was the immediate precursor to the second sentence of Section 1, empowered Congress "to secure ... to all persons in the several States equal protection in the rights of life, liberty, and property." [FN211] These drafts dealt with the distinctively protective function of government; they evidently did not refer to all government activities. [FN212] The notion that the Equal Protection Clause governs a right to protection was expressed clearly in the debates on the Ku Klux Act of 1871. [FN213] The claim that Congress had power to act directly against private outrages like those of the Klan usually rested not on the theory that the Equal Protection Clause forbade discrimination in general, but on a belief that it specifically forbade discrimination in law enforcementthe protection of the laws. The idea was that if the states failed in their duty to provide equal protection, then Congress' enforcement power extended to undertaking the duty itself. [FN214] In discussing the Ku Klux Act, many Republicans focused on the states' duty to protect life, liberty, and property. [FN215] *1438 b. Suffrage All this shows that during Reconstruction the interpretation of the Equal Protection Clause that is today accepted had a competitor which limited the clause to the protective functions of government. In order to determine which of these readings would have seemed more natural when the Amendment was framed, we can examine one of the crucial issues of Reconstruction: equal suffrage. Suffrage is especially illuminating because, as has long been recognized, the debates on voting rights cast doubt on the claim that the Equal Protection Clause is universal in scope. Those debates leave us with the nagging question of how so many Republicans could have asserted that Section 1 of the Fourteenth Amendment had nothing to do with voting when they had before them a clause that so obviously applied to all government actions. [FN216] Such claims would be understandable, however, if those Republicans thought they had before them two relevant clauses, both of which were limited in subject matter: one to the privileges and immunities of citizens, the other to the protection of the laws. We can begin with the source. John Bingham said, "The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States." [FN217] This confirms that as far as Bingham was concerned the drafting change from protection of life, liberty, and property to protection of the laws did not expand the Equal Protection Clause to include all government actions. [FN218] Jacob Howard was just as emphatic, in 1866 and later, in asserting that Section 1 had nothing to do with voting. When he *1439 introduced the Fourteenth Amendment in the Senate, he said, "The first section of the proposed amendment does not give to either of these classes blacks or whites the right of voting." [FN219] A few years later, Howard was shocked by the suggestion that race discrimination with respect to voting violated Section 1 of the Fourteenth Amendment. [FN220] If Howard thought that the protection of the laws included all the laws, his treatment of suffrage is impossible to explain. [FN221] Similarly, during the debates on the Civil Rights Act, Senator Henry Wilson, a Republican from Massachusetts, articulated his view that the government's obligation to provide full protection of life, liberty, and property did not imply equal suffrage. [FN222] Later in 1866, toward the end of the debate on the Fourteenth Amendment, Vermont Republican Senator Luke Poland likewise said that equal protection did not imply equal voting rights. [FN223] *1440 One especially instructive passage in the Reconstruction debates appears during the preparation of the Fifteenth Amendment. In 1869, Representative George Boutwell, archradical, member of the Joint Committee, and exponent of an equality reading of the Privileges or Immunities Clause, introduced in the House both a constitutional amendment that was a forerunner of the Fifteenth Amendment and a bill to accomplish the same end by ordinary legislation. In support of the bill he relied on several sources of congressional authority, including the Privileges or Immunities Clause but not the Equal Protection Clause. [FN224] Boutwell, who was not shy about asserting federal power, seems to have thought it plausible that voting was a privilege of citizens but not that it was part of the protection of the laws. [FN225] Both his approach to voting legislation and the repeated statements by other Republicans that Section 1 had nothing to do with voting, are consistent with the view that the Equal Protection Clause is limited to the protection of the laws. They are not consistent with the current view. *1442 d. Citizens and Aliens The contention that the Equal Protection Clause refers only to the protection of the laws raises the question whether the protection of the laws includes everything in the Civil Rights Act of 1866. In fact, discussion and congressional action during Reconstruction support not only the claim that the clause is limited to protection, but the thesis that while the privileges and immunities of citizens are broad enough to encompass the 1866 Act, the protection of the laws is not. This evidence revolves around the nineteenth century approach to the respective rights of citizens and aliens. A striking feature of the second sentence of Section 1 is that the first clause refers to citizens while the latter two refer to persons. It was clear in the nineteenth century that citizens had rights that aliens, who were persons but not citizens, did not. [FN229] Most importantly, aliens generally were not permitted to own real property except as specifically provided by state law. [FN230] Indeed, the classic way of explaining the operation of the Comity Clause was to say that it would relieve visiting Americans of the disabilities of aliens and thus allow them to own real estate. [FN231] This commonplace about the rights of citizens and aliens arose during the debates on the Civil Rights Act. The word "inhabitants," which had appeared in the original draft of Section 1, was changed to "citizens" in order to avoid any implication that it would enable aliens to own real property. [FN232] To say that aliens were not citizens, and in particular that they could not hold real estate, was not to say that aliens were to be treated as outlaws. On the contrary, civilized countries extended to aliens the protection of the laws. Blackstone noted that the King of England protected aliens while they were within the realm, although he protected his naturalborn subjects everywhere and at all times. [FN233] Like other ideas of Blackstone's, this one crossed the *1443 Atlantic. In a speech against the Fourteenth Amendment, Senator Edgar Cowan, a moderate Republican from Pennsylvania, objected to Section 1's grant of citizenship, because of the rights that might come with citizenship. He knew on the one hand that strangers did have the right to protection: If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit an assault on him, I apprehend. He has a right to the protection of the laws .... [FN234] On the other hand, it was equally clear to Senator Cowan that aliens were not full citizens and that their rights to hold real property were limited: I have supposed that every human being within [the courts'] jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so far as the right to hold property, particularly the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States. It has been so considered in the State of Pennsylvania; and aliens and others who acknowledge no allegiance, either to the State or to the General Government, may be limited and circumscribed in that particular. [FN235] Senator Cowan went on to argue that it was unwise to take away from the states the power to determine who should enjoy the rights of citizens. [FN236] John Bingham, too, distinguished between the right to protection, to which citizen and stranger alike were entitled, and the exclusive rights of citizens. [FN237] B. Protection At this point it may appear that the Fourteenth Amendment is like a rug with a bump in it. My attempt to resurrect the Privileges or Immunities Clause has displaced the confusion to the Equal Protection Clause, which no longer means what we thought it meant and now means whoknowswhat. In the preceding section, I sought to cast doubt on the conventional understanding of the text of the Equal Protection Clause. In this section I will begin to reconstruct an interpretation of the clause based on the premise that the protection of the laws is a subset of government activities having to do with protecting people and their rights. This discussion sketches the core of the clause's meaning under that more limited interpretation. The Equal Protection Clause's text suggests three conceptual issues: equality, denial, and the protection of the laws. I have already discussed the Reconstruction notion of equality, which is largely familiar from orthodox equal protection jurisprudence. [FN247] There is no reason to think that the concept of equality would be any different under the Equal Protection Clause, except that the states may make no distinction between citizens and aliens with respect to the protection of the laws. *1448 The only new question relating to equality is whether the clause is exclusively an equality requirement or whether it confers a substantive entitlement to the protection of the laws, with the proviso that protection must be equal. Although this is not easy, the best reading is that the clause requires only that whatever protection is given be given to everyone. [FN248] Classes modified by "equal" do not usually mark out a nonempty subset of the class. For example, if a school were required to give every student a hot lunch, it would have to give every student a lunch that was hot. But if it were required to give every student the same lunch, it probably could give them all nothing. The latter requirement may allow the students to be given something, but this is not the necessary result. The idea of denial has an easily identifiable core: a purposeful decision by a state not to provide protection for a reason that violates the requirement of equality. The classic case occurs when the Ku Klux Klan lynches blacks and the government does nothing because government policy favors the Klan. If the clause governs the content of laws as well as their execution, then any law that unequally provides or withdraws protection also violates the clause. Difficult questions certainly would arise. For example, it might be hard to decide how deliberate a failure to protect must be in order to qualify as a denial. [FN249] The concept of the protection of the laws presents two important questions. The first is whether protection refers only to the administration of the laws, or also to their content. Administration is plainly covered. If a state refuses to enforce its criminal battery laws when exslaves are attacked, it has violated the Equal Protection Clause. It is likely that the clause also governs the content of protective laws. The Civil Rights Act of 1866 gave blacks the full and equal benefit of all laws and proceedings for the security of person and property. [FN250] This is critical for equal protection, for one way of depriving someone of the benefit of a law would be to pass another law that took that benefit away. Thaddeus Stevens said that the amendment required that whatever law protected the white should protect the black equally, a point that goes to the substance of the laws. [FN251] Similarly, Bingham's initial draft was understood to affect the content of laws when it spoke of equal protection. [FN252] *1449 The second question is: what portion of a state's legal system makes up the protection of the laws? [FN253] More specifically, it is difficult to be sure whether those who spoke of the right of protection and the protection of the laws meant to refer solely to legal remedies, or also to some parts of the substantive law of rights. Remedial laws clearly are part of protection. [FN254] It is harder to say whether anything else is included. The best view may be that the rights to life and libertyessentially, the right of personal security against violenceare in effect substantively protected, because they are so basic as to be inseparable from their protective shell: it is difficult to find the right to personal security anywhere in the law other than in remedial regimes such as assault and battery. [FN255] All those criminal law provisions of which a defendant might avail himself are thus within the protection of the laws because they secure natural liberty against the state. The protection of the laws with respect to property, however, probably includes only remedial laws, leaving the content of property rights outside the Equal Protection Clause. [FN256] Substantive laws creating wholly positive or conventional rightssuch as the right to vote, which does not exist in the state of naturewould not be protective. The clause would apply, however, to laws that protect conventional rights. For example, a state could not make it a crime to assault white voters without making it a crime to assault black voters, and it could not have a practice of prosecuting only assaults on white voters. This is a clear example *1450 of the difference between substance and protection, because under my reading neither the Equal Protection Clause nor the Privileges or Immunities Clause requires any state to allow anyone to vote. The Equal Protection Clause thus, at the very least, forbids a state from deliberately refusing to enforce its protective laws for reasons that offend the rule of equality. It probably also imposes the equality requirement on the substance of a category of laws that was, in the nineteenth century, of fundamental importance. If the latter is true, then the Equal Protection Clause overlaps the Privileges or Immunities Clause to a significant extent. The overlap is not complete, however, because there is at least one legal right that is a privilege or immunity of citizens but is not within the protection of the laws: ownership of real property. [FN257] This exception may seem inconsequential, but the right to own real property, important even today, was truly fundamental in the agrarian Reconstruction era. Lyman Trumbull and his associates would have thought it a bitter joke had some Democrat suggested that freed slaves be given equality in all rights but that one. [FN258] Moreover, the fact that we have complete confidence only with respect to the right to own property does not mean that there are not other rights that were not covered by the Equal Protection Clause. The Republicans distinguished between the full rights of citizens and the narrower rights of all persons, both in common usage and in Section 1 of the Fourteenth Amendment. [FN259] They thus highlighted an aspect of the concept of privileges and immunities that appears in the words themselves but that we rarely consider. Both "privileges" and "immunities" imply exclusivity, grants to some but, by definition, not all. [FN260] Thus, the contrast between the rights of citizens and lessfavored aliens *1451 is central to the concept of privileges and immunities. Justice Miller would have been justified in emphasizing the "privileges or immunities of citizens of the United States." The overlap between privileges and immunities and equal protection also goes a long way toward explaining remarks in the Reconstruction debates suggesting that the Equal Protection Clause constitutionalizes the Civil Rights Act of 1866. The most prominent of these is in Thaddeus Stevens' speech introducing the amendment to the House. [FN261] Several things are noteworthy about Stevens' explanation. First, he spoke about the second sentence of Section 1 as a unit and did not single out the Equal Protection Clause. Second, he included protection among the things that would be equal, which is hard to reconcile with the theory that equal protection underlies the whole list, but which does accord with the theory that protection is a subset of rights. Finally, all the examples Stevens gave fell within the overlap of privileges and immunities and protection. V. APPLYING THE RECONSTRUCTED PRIVILEGES OR IMMUNITIES CLAUSE Having suggested that the equalitybased reading of the Privileges or Immunities Clause was available and advanced during Reconstruction, I begin this part by explaining why that reading, along with the more limited view of the Equal Protection Clause, is a more satisfying account of the text and history of Section 1. The rest of this part attempts to understand the scope of the Privileges or Immunities Clause. It focuses on the privileges and immunities of state citizenship, as the novelty of my interpretation lies in the suggestion that a ban on abridging them would forbid discrimination while retaining the states' power over the content of their laws. A. The Better View Finally, this reading of the Privileges or Immunities and Equal Protection Clauses gives a coherent account of the second sentence of Section 1. To see this, we need to consider an aspect of the Due Process Clause that has always been important but that is often glossed over because it is even more basic than what we normally call "procedural due process." The Due Process Clause provides that no State may "deprive any person of life, liberty, or property, without due process of law." It thus applies when the state acts against someone by taking away life, liberty, or property, and is usually understood to require that such unfavorable state actions occur only after the government has employed fair procedures. [FN264] But that is not all that the clause means. If, as seems likely, it derives from the "law of the land" provision of Magna Charta, the Due Process Clause also refers to the principle of legality itself: the requirement that the government act only pursuant to lawthe "due process of law"and not according to the whim of some official. [FN265] It would make good sense for Section 1 to impose the principle of legality on the states. The main extralegal ground of government conduct in the whitedominated South of 1866 was race, followed by antiUnion sentiment. To require that official action against individuals be pursuant to law would eliminate such extraneous considerations. Moreover, the requirement of legality fits well with the principle of equality that underlies Section 1 because adverse government action based on the private feelings of officials is, by definition, partial and arbitrary. Finally, the procedural aspect of the Due Process Clause would ensure that Judge Lynch would no longer sit in the state courts. [FN266] *1454 The Due Process Clause prevents state activity that is, literally, lawless. Its complement is the Equal Protection Clause, which forbids the denial of protection and therefore prohibits inaction in the face of private lawlessness. Under these clauses combined, the state may move against an individual only pursuant to law, and may not sit on its hands while individuals threaten the rights of any person. Together, they impose regularity and hence equality on the administration of the laws. On this reading it is easy to see why these two clauses apply to all persons, not just to citizens. The principle of legality, and the protection of life, liberty, and property, are the basics of government. Citizens enjoy additional rights, but everyone is entitled to the minimum of due process and equal protection. Section 1 of the Fourteenth Amendment thus mandates equal civil rights for citizens, the regular and impartial rule of law, and universal performance of the state's basic function. It is about equality through and through. B. The Doctrine Reconstructed A doctrine of the reconstructed Privileges or Immunities Clause must have two components: a method of determining whether a law affects a privilege or immunity of citizens and a method of determining whether it violates the principle of equality by abridging a citizen's privileges or immunities. An abridgment must be contrasted with a change in the content of the law as it applies to all citizens. A doctrine of abridgment would deal with many of the problems that confront oldstyle substantive due process and newstyle equal protection. 2. Abridgment and Equality a. Caste Legislation and Abridgment The Fourteenth Amendment's concept of abridgment depends on the distinction between laws that define rights and laws that determine who shall have them, such as a Black Code. A Black Code was an overlay on preexisting rights, based not on the normal considerations that determine the content of those rights, but based instead on an immutable, hereditary characteristic that had been integral to a vast system of exploitation in the South and a widespread pattern of disadvantage in the North. In order to understand how the Privileges or Immunities Clause might operate outside of its historical core, we must translate this central exemplar into a concept that can be applied to other situations. The two central features of a Black Codethat it was an overlay on neutral laws and that it was based on race and colorgenerate the organizing principles of orthodox equal protection thinking. One approach views the Fourteenth Amendment as implicitly containing a series of absolute antidiscrimination rules like that in the Fifteenth Amendment. The task of interpretation is then to determine what the forbidden grounds of discrimination are. The other approach holds that equality is not concerned with grounds of classification but rather with reasons for employing those grounds. A law is then forbidden by the equality rule when it rests on a forbidden criterion, often referred to as animus. [FN275] The forbidden criterion is characterized as arbitrary or irrational, in contrast with the criteria that ordinarily underlie legislation. In practice, the difference between the two approaches is that the animus based theory permits the same basis of classification to be permissible under some circumstances and impermissible under others, depending on the purpose for which it was used. This means that the state sometimes may employ a normally forbidden basis of classification, even race. The focus on animus also means that certain characteristics of persons that are not normally thought of as marks of caste will nevertheless be forbidden when used for improper purposes. If individuals who drive foreign cars became the subject of widespread resentment, a law forbidding them from purchasing gasoline, that was *1458 motivated by a desire to retaliate against them, would be inconsistent with a ban on animus. Does the Privileges or Immunities Clause ever permit distinctions based on race with respect to the rights of citizens? No. Does it recognize the existence of ad hoc castes, such as owners of foreign cars? Yes. The answers leave us with a confused concept. On the first issue, the best guidance to the Reconstruction notion of unequal legislation is offered by the civil rights statutes, which were the cutting edge of Republican antidiscrimination rules. Although their teaching is not entirely clear, I think these statutes indicate that discrimination with respect to race, color, or previous servitude is always unequal legislation. This signal first appears in the Civil Rights Act of 1866, which states that all citizens shall have the same rights as white citizens. That is a ban on discrimination. It could be suggested that the Civil Rights Act permits a state to give nonwhites rights not enjoyed by whites because whites would then still have the rights of whites. [FN276] Although this is a plausible reading, its plausibility partly reflects our modern tendency to think in terms of the rights of potential plaintiffs in lawsuits, rather than in terms of abstract rules. If a nonwhite citizen has more rights than a white citizen, then the rule of the Civil Rights Act has been violated because all citizens do not have the same rights as white citizens. [FN277] The mature form of the Republican civil rights statute, the Civil Rights Act of 1875, was a simple prohibition on race discrimination with respect to public facilities. [FN278] If the 1875 Act is a model ban on unequal legislation, then the Fourteenth Amendment requires casteblindness with respect to privileges or immunities of citizens. *1459 Turning to the second question, the Reconstruction notion of abridgment probably also included what we might call ad hoc castes or castes incontextcriteria that are not commonly employed but that nevertheless represent a division of the citizenry into classes for reasons unrelated to the content of fundamental rights. As an unrealistic example, imagine that a state placed limits on the contractual capacity of people whose names start with certain letters. That would abridge their right to contract because the alphabet has nothing to do with the law of contract. This aspect of the doctrine produces far harder cases than that of alphabet classification. This result is not entirely satisfying because it leaves us with notions of equality and abridgment that seem somewhat cobbled together. That problem, however, is endemic to the concept of general equality, and it was that concept that the Republicans used. For this reason, I do not mean to suggest that my notion of unequal legislation solves the problems common to ordinary equal protection jurisprudence. Both understandings are rooted in the Reconstruction notion of generalized equality, and both share the difficulties of that frustrating way of thinking, which rests on an intuition that seems plausible until we begin to apply it in difficult cases. [FN279] b. Symmetrical Discrimination One of the most vexing questions during Reconstruction concerned race conscious state laws that were nevertheless symmetrical and therefore arguably equal. Typical examples included antimiscegenation statutes, which prevented whites from marrying blacks just as they prevented blacks from marrying whites, and forced separation laws, which kept blacks from mingling with whites and vice versa. Such laws are equal in the sense that both races are subject to them. Despite many Republicans' rebuttals to Democratic denunciations of interracial marriage, the Fourteenth Amendment forbids restrictions on privileges or immunities that take race into account. It is easiest to begin with the Civil Rights Act. Under a ban on interracial marriage, the rights of individuals of different races are not the same under all descriptions, because blacks can marry blacks and whites cannot, even though all are prevented from marrying members of the other race. But if the rights are different under any description, they are not the same. No rule that requires reference to a citizen's race in order to know that citizen's rights, therefore, will give citizens of all colors the same *1460 rights. If marriage is a contract then the Civil Rights Act banned antimiscegenation laws. [FN280] This question is easier under the Privileges or Immunities Clause than under the orthodox reading of the Equal Protection Clause. The latter's reference to equal protection makes possible the claim that the races are equal because the restrictions are symmetrical. The former clause, by contrast, forbids abridgments of privileges or immunities and hence focuses on restrictions on rights. [FN281] Under a symmetrical discrimination, people's rights are abridged because the right to marry or to contract is subject to a restriction based on a caste characteristic. A white person's right to marry a black person is abridged. The fact that a black person's right to marry a white is also abridged makes the statute more unconstitutional, not less so. c. Beyond Race, Color, and Previous Condition of Servitude A difficult question for my theory, as well as ordinary equal protection analysis, is the existence of castes per se other than those based on race, color, and previous condition of servitude. Reconstruction saw some consideration, but no resolution, of the single most difficult of these questionsthe caste status of sex. During the debate on Bingham's first proposed amendment, Representatives Hale and Stevens touched on sex discrimination but provided no illumination. [FN282] Justice Field in SlaughterHouse thought that the Privileges or Immunities Clause permitted sex discrimination. [FN283] In Bradwell v. Illinois, [FN284] the case immediately following SlaughterHouse, three of the Slaughter*1461 Houseeee dissenters explained that they would not hold that the Privileges or Immunities Clause forbade sex discrimination with respect to admission to the bar. [FN285] On the other hand, counsel for Mrs. Bradwell was no less than Senator Matthew Carpenter, a leading member of both the Supreme Court's bar and the Republican Party. He argued that the Privileges or Immunities Clause forbade discrimination on the basis of sex just as it forbade discrimination based on race. [FN286] Carpenter's argument probably had merit, but this was a very hard question. There is at least one characteristic other than race, color, or previous condition of servitude that does fit comfortably into both our own, and the Republicans', notion of castereligion. Creed sometimes found its way onto lists of characteristics notwithstanding which all men were equal, and it had a long history as a basis for the creation of secondclass citizenship. [FN287] The Constitution already contained the Religious Test Clause of Article VI, and religious freedom was a standard feature of the state bills of rights, some of which explicitly banned discrimination based on creed. [FN288] Next, it is likely that political association, like religious belief, would constitute caste per se. [FN289] Specific examples in which we can have some confidence are loyalty to the Union and membership in the Republican Party. Politics is another ground of classification within the citizenry that has nothing to do with one's rights and is a common way of dividing people up for favorable *1462 or unfavorable treatment. [FN290] In addition, political belief and action, like religion, already had substantial protection under American constitutions. [FN291] The forbidden subjects thus include politics, religion, and possibly sex. This discussion of candidates for caste status has probably not advanced our understanding of that concept very much. These problems are the hard part of the Fourteenth Amendment and are not likely to go away. C. Applications 1. Compulsory Segregation The Supreme Court upheld a railroad car segregation law in Plessy v. Ferguson. [FN292] Although symmetrical, the law restricted the right to contract by forbidding a white citizen from buying a ticket on a car that carried blacks. It also limited the even more fundamental privilege of natural liberty because the black passenger was not allowed to walk into the white train car. The law should have been held invalid. [FN293] The same is true with respect to segregated public education. Schools financed by general taxation are very probably a *1463 privilege of citizens. [FN294] If so, to give individuals of different races different versions of the privilege would constitute an abridgment. [FN295] 2. Jury Selection In Strauder v. West Virginia, [FN296] the Supreme Court held that a black defendant could not be convicted by a jury from which all blacks had been excluded. [FN297] Such a law would not abridge the privileges or immunities of the potential juror because jury service is a political and not a civil right. The Court, however, rested its decision on the rights of the defendant. Justice Strong argued that a criminal defendant received unequal protection when he faced a jury that had been selected from a pool containing no members of his race. [FN298] Although the issue is not easy, the result probably was right under both the Privileges or Immunities and Equal Protection Clauses, which overlap on this point. The difficult question is whether and when the race of the jury counts as part of the legal treatment afforded the defendant. I think that it did in Strauder. Certainly jurycomposition rules can constitute immunities. Blacks could not be tried by juries deliberately drawn from convictionprone groups.     Page PAGE 1 Copr. ( West 2004 No Claim to Orig. U.S. Govt. 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