DOESTHEFOURTEENTHAMENDMENTGUARANTEE
EQUALJUSTICEFORALL?
STEVENG.CALABRESI
*
DoestheFourteenthAmendment
1
guaranteeequaljusticefor
all? Implicitly, this question asks whether the Supreme Court
may transformatively interpret the Amendment to ban prac‐
ticesthatwerecommonplacein1868ortocreatenewconstitu‐
tional rights that were unknown at that time.
2
To answer this
question, I need to address both the way in which the Four‐
teenth Amendment guarantees equality and theway in which
it protects individual rights. My conclusion is that the Four‐
teenthAmendmentisnotalicensetotheSupremeCourttoen‐
gageintransformativechange.
I begin with the equality guarantee in the Fourteenth
Amendment.Onthis point,IagreewithJohnHarrisonthatthe
Amendment bans all forms of caste‐like discrimination.
3
No
Stateisallowedeithertomakeorenforceanylawthatabridges
theprivilegesorimmunitiesofonecitizen oftheUnitedStates
ascomparedtoanother.
4
Thiscommandaccomplishesthecen‐
*
George C. Dix Professor of Constitutional Law, Northwestern University. I
would liketothank JasmineOwensfor her helpas my researchassistant on this
Essay.
1.U.S.C
ONST.amend.XIV.
2.Bruce Ackerman and Ronald Dworkin offer comprehensive reviews of this
subject, beyond the scope of this Essay. 1 B
RUCE ACKERMAN, WE THE P EOPLE:
FOUNDATIONS (1991) (reviewing the Supreme Court’s advancement of Recon‐
structionvalues);2B
RUCEACKERMAN,WETHEPEOPLE:TRANSFORMATIONS(1998)
(explaining the process of entrenching the validity of the Fourteenth Amend‐
ment);R
ONALDDWORKIN,LAW’SEMPIRE(1986)(consideringthe rolethattheSu‐
premeCourthasindeterminingwhichpowersitmayenforceandtowhatextent
itshould);R
ONALDDWORKIN,TAKINGRIGHTSSERIOUSLY(2ndprtg.1977)(analyz‐
ingthe position ofthe SupremeCourtto makedeterminations outsideofthede‐
mocraticprocess).
3.John Harrison,Reconstructingthe PrivilegesorImmunitiesClause,101Y
ALEL.J.
1385,1413(1992).
4.U.S.
CONST. amend. XIV, § 1. AlthoughtheDue ProcessClausehas enjoyed
greatertractionasaprotectionofindividualrights,Irenewmyassertionthatthe
Framers intended the Privileges orImmunities Clause to be the most important.
150 HarvardJournalofLaw&PublicPolicy [Vol.34
tralpurposesoftheAmendment,whichweretoconstitutional‐
ize the Civil Rights Act of 1866 and to ban the Black Codes.
5
TheeviloftheBlackCodeswasthattheyabridged,shortened,
or lessenedthe fundamental rights of a class of people—freed
African Americans—by creating a system of racial castes. The
Fourteenth Amendment banned all caste systems, including
the racialcaste system of the South. The Amendment was not
limited,however,
tobanningracialcastesystems;itwouldalso
havebeenunderstoodtobantheHinducastesystemorthere‐
imposition of European feudalism with its division of society
intohereditarynoblesandserfs. At a veryhigh levelof gener‐
ality,then,onemayaccuratelysaythattheFourteenthAmend
‐
mentwasoriginallymeanttoguaranteeequaljusticetoall.But
what does that mean for the role of the Supreme Court in ap‐
plying the Fourteenth Amendment? How was the Supreme
Courtsupposedtoapplyaconstitutionalbanoncastesystems?
Theeasieststartingpointisaracialcaste
systemliketheones
the Supreme Court held unconstitutional in Brown v. Board of
Education.
6
At the time the Fourteenth Amendment was en‐
acted,thirty‐sixofthethirty‐sevenstatesrequiredintheirstate
constitutions that public schools be provided.
7
The right to a
publicschooleducationwas,forallpracticalpurposes,aprivi‐
lege or immunity of state citizenship. Congress at the time al‐
most passed—as Michael McConnell has shown—legislation
outlawingsegregatedschoolspursuanttoCongress’sSection5
powertoenforcetheFourteenthAmendment.
8
Suchlegislation
StevenG. Calabresi, Substantive DueProcess AfterGonzales v. Carhart,106 MICH.
L.REV.1517,1532(2008).
5.See
RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF
THE
FOURTEENTH AMENDMENT32–36 (2d ed. 1997) (analyzing the historical rela‐
tionship between the Civil Rights Act of 1866 and the Fourteenth Amendment);
Harrison,supranote3,at1413(“[T]heimmediatetargetoftheCivilRightsActof
1866andSection1oftheFourteenAmendment[was]theBlackCodes.”).
6.347U.S.
483(1954).
7.StevenG. CalabresiandSarahE.Agudo,IndividualRightsUnderStateConsti‐
tutionswhentheFourteenthAmendmentWasRatifiedin1868:WhatRightsAreDeeply
RootedinAmericanHistoryandTradition?,87T
EX.L.REV.7,109‐10(2008).
8.SeeMichaelW.McConnell,OriginalismandtheDesegregationDecisions,81V
A.
L. REV. 947, 1092–93 (1995) (analyzingthecongressional attempts to enactdeseg‐
regation laws in the late nineteenthcentury).
Butsee Michael J. Klarman,Brown,
Originalism, andConstitutionalTheory: AResponseto Professor McConnell,81V
A. L.
REV. 1881 (1995); Michael W. McConnell, The Original Justification for Brown: A
ReplytoProfessorKlarman,81V
A.L.REV.1937(1995).
No.1] EqualJusticeforAll? 151
couldonlybeconstitutionalinthe1870sifpublicschooleduca‐
tionwasthoughttobeaprivilegeorimmunity.
In 1954, the SupremeCourt held thatsegregation in schools
ledtoan“abridgement”oftherights,privileges,andimmuni‐
ties of African Americans
with respect to public schools as
compared to all other Americans.
9
The fact that such segrega‐
tionhadbeenpracticedin1868andhadbeenaroundforavery
long time did not change the fact that it was and always had
beenunconstitutional.Forthisreason,the Supreme Court was
onsolidoriginalist groundwhenitstruckdownsegregationin
publicschools.
10
In 1967, the Supreme Court in Loving v. Virginia
11
struck
down laws forbidding racial intermarriage that had been
aroundsince1868andthatwerewidelysupportedinthe1860s
and 1870s.Was Loving correctly decided? The answer again is
yesbecausetheFourteenthAmendmenthadconstitutionalized
theCivilRightsActof1866,whichsaidthatAfricanAmericans
had the
“same” right to make contracts as was enjoyed by a
white citizen.
12
Awhite citizenhad theright tomarry another
white citizen so the Fourteenth Amendment plainly com‐
manded that African Americans had that “same” right.
13
Again,the facttheFramers oftheAmendment did notunder‐
stand this means nothing. Members of Congress rarely read
9.Brown,347U.S.483.
10.StevenG.Calabresi&LiviaFine,TwoCheersforProfessorBalkin’sOriginalism,
103N
W.U.L.REV.663,672(2009).
11.388U.S.1(1967).
12.ActofApril9,1866,ch.31,14Stat.27(reenactedbyEnforcementActof1870
ch.114§18,16Stat.140(1870)(codifiedasamendedat42U.S.C.1981–82(2006))
(declaring that “all persons borninthe UnitedStates and not subject
to anyfor‐
eignpower,excludingIndiansnottaxed,areherebydeclaredtobecitizensofthe
United State; and such citizens, of every race and color, without regard to any
previous condition of slavery or involuntary servitude, except as a punishment
for crime whereof the party shall have been
duly convicted, shall have the same
right, in every State andTerritoryinthe United States to make and enforcecon ‐
tracts; to sue, be parties andgive evidence, toinherit,purchase,lease,sell,hold,
and convey real and personal property, and to full and equal benefit of all laws
and
proceedings for the security of person and property, as is enjoyed by white
citizensandshallbesubjecttolikepunishment,pains,andpenalties,andtonone
other,anylaw,statute,ordinance,regulation,orcustom,tothecontrarynotwith‐
standing”).
13.See Loving, 388 U.S. at 11–12 (“There can be
no doubt that restricting the
freedomtomarrysolelybecauseofracialclassificationsviolatesthecentralmean‐
ingoftheEqualProtectionClause.”).
152 HarvardJournalofLaw&PublicPolicy [Vol.34
much less understand the laws they make, but that does not
make those laws any less binding on all of us. The Supreme
Court’s use of the Fourteenth Amendment to constrain racial
castesinthe1950sand1960swasrightand
iseasilyjustifiable.
What then about the extension of the no‐caste principle to
sexdiscriminationbeginninginthe1970s?Isthatequallyjusti‐
fiable? Is sexual‐orientation discrimination also unconstitu‐
tional? What about laws that lead to inequalities of wealth or
income?
The Constitution explicitly addresses the subject of
sex dis‐
crimination in the Nineteenth Amendment,
14
which was
adoptedin1920andgavewomentherighttovote.Therightto
voteisapoliticalright,unlikethecivilrightsaddressedbythe
Fourteenth Amendment. The Framers of the Fourteenth
Amendment distinguished between civil rights, which were
possessed by all citizens, including women and child ren, and
political rights, which were exercised only by the male subset
ofthepopulation.
15
Forthisreason,theFifteenthAmendment
16
was necessary to give African‐American men the right to
vote.
17
Once the Constitution had been amended to bar sex dis‐
crimination as to political rights it became utterly implausible
thatthe no‐caste command ofthe Fourteenth Amendmentdid
notalsobanmost,ifnotall,sexdiscriminationastocivilrights.
Politicalrights are rarerand more jealously guarded
thencivil
rights. It would make no sense to say that women could vote
forPresident and Congress,but they werelegallyincapableof
making a simple contract without their husband’s permission.
The Supreme Court recognized as much in 19 23 in Adkins v.
Children’s Hospital of DC.
18
Thefifty years it took for the Court
toactfullyonitswiseintuitionastosexdiscriminationinAd‐
kins says more about the sorry intellectual state of New Deal
constitutionalism than it does about the correct application of
theFourteenthAmendment.
14.U.S.CONST.amend.XIX.
15.SeeCalabresi&Fine,supranote10,at693.
16.U.S.
CONST.amend.XV.
17.See W
ILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL
PRINCIPLETOJUDICIALDOCTRINE(1988).
18.261U.S.525,553(1923).
No.1] EqualJusticeforAll? 153
Does the Fourteenth Amendment’s ban on castes bar all
forms of sexual‐orientationdiscrimination? Isthere a constitu‐
tionalrighttogaymarriage?Ithink the answeris no. No con‐
stitutional amendment like the Nineteenth Amendment has
beenadoptedthatrecognizessexualorientation
asbeingasus‐
pect classification. The reason sex discrimination is appropri‐
atelysubjectedtoalmoststrictscrutinyisbecausein1920two‐
thirds of both Houses of Congress and three ‐quarters of the
States made a conscious, knowing social decision that sex
oughttobeirrelevantinvoting.The
ArticleV
19
ruleofrecogni‐
tion
20
for constitutional change was thus met by women in
1920.Beforethat time sexdiscriminationwasnot constitution‐
ally a form of caste. After that time, it was. No Article V con‐
sensus for gay marriage has been demonstrated. In fact, in
almost every state where the matter has been
voted on, gay
marriage has lost. Most Americans today seemingly would
permitsame‐sexcivilunionsbutnotaffirmativelyendorsethem
with the word “marriage.”
21
This view may be right or wrong,
but it undeniably speaks to how Americans today understand
theFourteenthAmendment’scommandofeq ualju sti ce.
ImentionedatthestartofthisEssaythatinadditiontopro‐
tectingequalityIalsobelieve the Fourteenth Amendment pro‐
tectsindividualrights.TheAmendment
forbidsanylawwhich
abridges the privilegesor immunitiesof citizensof theUnited
States—notonly discriminatorylaws.The word “abridge”can
be used as a synonym for “discriminate,” as it is in the Fif‐
19.U.S.CONST.art.V.
20.The“ruleofrecognition,”ascoinedbyH.L.A.Hart,designatesvalidlawas
therulesacceptedbythelegalsystem.H.L.A.
HART,THECONCEPTOFLAW(1961).
Amendments,properlyadoptedunderthesystemsetforthinArticleV,meetthis
thresholdforlegitimacy.
21.PressRelease,PewForumonReligious&Pub.Life&PewResearchCtr.For
thePeople&thePress,GayMarriageGainsMoreAcceptance:MajorityContinues
to Favor Gays Serving Openly in
Military (Oct. 6, 2010), available at
http://pewresearch.org/pubs/1755/poll‐gay‐marriage‐gains‐acceptance‐gays‐in‐
the‐military (noting that forty‐two percent of Americans favor gay marriage,
whileforty‐eightpercentareopposed);PressRelease,PewForumonReligious&
Pub. Life & Pew Research Ctr. For the People & the Press,
Most Still Oppose
Same‐Sex Marriage: Majority Continues to Support Civil Unions (Oct. 9, 2009),
availableathttp://people‐press.org/report/553/same‐sex‐marriage(notingthatfifty‐
sevenpercentofAmericansfavorcivilunions).
154 HarvardJournalofLaw&PublicPolicy [Vol.34
teenthAmendment,
22
butitcanalsobe usedtodenoteaviola‐
tion of individual rights, as is the case in the First Amend‐
ment.
23
Rights canbeabridgedoneperson at atime aswellas
one class of people at a time. Either form of abridgement is
plainly forbidden by the text of the Fourteenth Amendment,
and the use of that text to protect individual rights stretches
wellbackintothenineteenthcentury.
How do we know which individual rights the Amendment
protects?Agoodplacetostartwouldbetoaskwhatindividual
rightsofout‐of‐staters thePrivileges andImmunitiesClauseof
ArticleIVprotects.Apubliclyinterestedcitizenin1868would
quite reasonably havethought thatthe “privilegesorimmuni
‐
ties” language in the Fourteenth Amendment tracked the
“privileges and immunities” language in Article IV.
24
So how
oughttheArticleIVClausebeconstrued?IthinktheArticleIV
Privileges and Immunities Clauseis best seen as guaranteeing
out‐of‐staters equal civil rights with in‐staters,
25
but not equal
political rights or rights to equal levels of benefits from state
government or lands. If a state gives its in‐state citizens the
right to assisted suicide or gay marriage or to covenant mar‐
riage with no possibility of divorce, then out‐of‐staters should
get the
same right while they are residing in that particular
state. The phrase “privileges and immunities” in Article IV
thusdoestakeonnewmeaningovertime.Whenstatesexpand
the rights of their in‐state citizens they expand the corpus of
privilegesandimmunities.
What this means for the Fourteenth Amendment
is that the
guarantee of the Privileges or Immunities Clause could be ar‐
gued to change very slowly over time so that if an Article V
consensus of three‐quarters of the states come to think that
something isunconstitutional that wasallowed in1868 it may
in fact become
unconstitutional. Individual rights must be
22.U.S. CONST. amend. XV, § 1 (“The right of citizens of the United States to
voteshallnotbedeniedorabridgedonaccountofrace,color,orpreviouscondi‐
tionofservitude.”).
23.U.S. C
ONST. amend. I (“Congress shall make no law...abridging the free‐
domofspeech,orofthepress....”).
24.U.S.
CONST. art.IV,§2,cl.1(“TheCitizensof eachStateshallbeentitled to
allPrivilegesandImmunitiesofCitizensintheseveralStates.”).
25.SeeCalabresi,supranote4,at1535(“[T]hePrivilegesandImmunitiesClause
ofArticle IV...protects out‐of‐statersfrom beingtreated
differently than are in‐
statecitizens.”).
No.1] EqualJusticeforAll? 155
deeply rooted inhistory and tradition,as Justice Scaliasaid in
Michael H. v. Gerald D.,
26
but it is also true, as Justice Harlan
saidinGriswold v. Connecticut,
27
thattraditionis a living thing.
The Framers of the Fourteenth Amendment understood the
text to embody the rule of Corfield v. Coryell,
28
which certainly
does require that unenumerated privileges and immunities be
deeplyrootedinhistoryandtradition.ButwhatJusticeHarlan
never said in Griswold, when he claimed that tradition was a
living thing,
29
was that the Supreme Court acting on its own
could update ourtraditions without anArticle V consensusof
three‐quartersofthestates.Strikingdownanunenforced,anti‐
contraceptive law in one out of fifty states is totally different
fromstriking downtheanti‐abortionlawsofallfifty
states.Itis
arguable that in1965therewas an ArticleV consensus for the
result and the right recognized in Griswold, but no such argu‐
mentcanbemadeindefenseofRoev.Wade.
30
Therewasnotan
Article V consensus of three‐quarters of the States to support
abortion on demand in 1973, nor has there ever been such a
consensus since.
31
Roe v. Wade is not deeply rooted in history
andtradition.Itisnotevendeeplyrootedinthecontemporary
societyinwhichwelive.Itexistssolelyas a result ofSupreme
Courtjudicialfiat.
I close with the question we started with: Does the Four‐
teenth Amendment empower
the Supreme Court to make
transformativesocialchangesatthebehestofmobilizedsocial‐
interestgroups?Ithink the answeris no. The textof theFour‐
teenthAmendmentisaddressedtotheCongress,thePresident,
theGovernors,andtheStateLegislatures,aswellastotheSu‐
premeCourt.The
Amendmentmentionsnospecialroleforthe
26.491U.S.110,125–26(1989).
27.381U.S.479(1965).
28.6F.Cas.546,551–52(C.C.E.D.Pa.1823)(No.3230).
29.SeeGriswold,381U.S.at500(Harlan,J.,concurringinjudgment)(relyingon
similaranalysis byJusticeHarlanindissent inPoe v.Ullman, 367U.S.497,
522 et
seq.(1961)).
30.410 U.S.113(1973)(holdingunconstitutionalthe majorityofstates’ lawsre‐
strictingabortion).
31.SeePressRelease,PewForumonReligious&Pub.Life&PewResearchCtr.
ForthePeople&thePress,SupportforAbortionSlips:IssueRanksLoweronthe
Agenda
(Oct. 1, 2009), available at http://pewforum.org/Abortion/Support‐for‐
Abortion‐Slips.aspx(forty‐sevenpercentofAmericansbelieveabortionshouldbe
legalinallormostcases).
156 HarvardJournalofLaw&PublicPolicy [Vol.34
courts.
32
Nor would one expect the Framers of an amendment
designedtooverturntheDred Scott
33
decisiontobe big fans of
substantive due process. The only mention in the Fourteenth
Amendment of an enforcement mechanism is the language of
Section Five, which contemplates congressional and not judi‐
cial enforcement of the Amendment.
34
Legitimate transforma‐
tive social change only happens, as it did in 1868 or in 1920,
whentwo‐thirdsofbothhousesofCongressandthree‐quarters
of the states agree on a textual change. Successful and mobi‐
lized social interests like the Jim Crow movement may win
transientdoctrinalvictories,
butthose victories areillegitimate
and can thus always be overturned. There is no guarantee,
however,thatanArticleVmajorityofthe American people or
any majority will always act justly and fairly. Thus, I must
agree that the Fourteenth Amendment does not necessarily
guaranteejusticeandfairnesstoall.
32.SeeCalabresi&Fine,supranote10at698–700.
33.DredScottv.Sanford,60U.S.(19How.)393(1857).
34.U.S.
CONST.amend.XIV,§5(“TheCongressshallhave powertoenforce,by
appropriatelegislation,theprovisionsofthisarticle.”).
