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Introduction to Individual Rights

The second sentence of §1 is both more complicated and less clear. It is divided into three parts. The first part provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. …” The text does not define the “privileges or immunities of citizens of the United States.” One immediately thinks of the Privileges and Immunities Clause of Article IV, which protects the “Privileges and Immunities of Citizens in the several States.” See Christopher N. May & Allan Ides, Constitutional Law: National Power and Federalism, ch. 9 (6th ed. 2013). At the time the Fourteenth Amendment was adopted, judicial decisions had given some content to the “fundamental rights” protected by Article IV. See Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823). Do both clauses refer to the same fundamental rights, or is there a distinction between the privileges or immunities held by citizens of the United States and the privileges and immunities held by citizens in the several states? In other words, has a new category of fundamental rights been created to coincide with the newly created definition of U.S. citizenship? And if so, what are those rights? The text, standing alone, does not provide an answer to these questions.

The next part of the second sentence provides, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law. …” This sounds a little easier. Before a state can take away a person’s life, liberty, or property, it must provide something called due process of law. Implicitly, the rights to life, liberty, and property are not absolute. A deprivation of these rights is permissible as long as due process is satisfied. The word “process” suggests procedures; the word “due” suggests appropriate, proper, or reasonable. A person, therefore, is entitled to appropriate procedures before being deprived of life, liberty, or property. Presumably reference to accepted practices will provide guidance as to what procedures will be deemed to satisfy due process. Note also that the category “person” appears to be broader than the category “citizen.” All citizens are persons; all persons are not necessarily citizens. The Due Process Clause protects the more inclusive category.

Finally, §1 provides, “[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws.” The phrase “equal protection of the laws” suggests at the very least that otherwise neutral laws must be enforced in an evenhanded manner for the benefit of all who fall within the letter of their protection. But does it mean, in addition, that state laws may not discriminate or classify? In other words, does it require that the law itself be evenhanded? Assuming that this is the case and keeping in mind that all laws classify in some manner, is this potential ban on classifications limited to certain types of discriminations? If so, what types of discriminations are banned? Again, the text does not answer these questions.

This cursory examination of the text of §1 should make at least one thing clear: A reading of a constitutional text begins, but rarely resolves, an inquiry into meaning. The language must be placed in a context that includes the surrounding historical events as well as the specific matters that led to the enactment. Certainly this is borne out by the obscure language of the second sentence of §1. These observations are also true with respect to language that appears clear. The clarity may be an illusion caused by our lack of appreciation for the historical context. For example, we may think we know what equal protection of the laws means, but the authors of the text may have been writing from a very different understanding of the phrase. In short, the text cannot be read in a historical vacuum. A deeper understanding of the text requires at a minimum a passing familiarity with the historical milieu in which the Fourteenth Amendment was adopted.

A Brief Historical Survey

The context surrounding the adoption of the Fourteenth Amendment can be succinctly described as slavery, the abolition movement, the Civil War, and the Reconstruction response to events in the post-Civil War South, including the adoption of the Black Codes. The authors of the Fourteenth Amendment and those who supported it, both in Congress and in state conventions, were immersed in these events. They lived them and were responding to them.

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