Fourteenth Amendment Citizenship
In the Slaughterhouse Cases, the Supreme Court slaughtered the Privileges and Immunities Clause of the Fourteenth Amendment, effectively holding that this provision doesn’t protect the fundamental rights of citizens. Subsequently, the court twisted the Fourteenth Amendment’s Due Process Clause out of shape by decreeing that due process includes a substantive element that does protect fundamental rights.1
I suggested in my last post that the court’s doctrinal 180 was perhaps related to its determination, around the same time, that corporations are people too, in the constitutional sense.2 The court wielded the Fourteenth Amendment like a cudgel to beat back state regulations that infringed property and contract rights, to the benefit of the captains of industry.
FDR’s New Deal mostly put an end to this economic iteration of substantive due process, but in the post-War era, the Warren Court picked up substantive due process as a vehicle to enforce fundamental rights of individuals, the function originally intended for privileges and immunities.
As Justice Alito’s majority opinion in McDonald recognized, it’s nearly indisputable that the original understanding was that fundamental rights were guaranteed under privileges and immunities, not due process. You could be forgiven for expecting the avowedly originalist court to jump at the chance to overturn the post-hoc rationalization of substantive due process.rights.
Yet no. Justice Alito expressly refused to confront the question in McDonald, and adhered to substantive due process again in Dobbs, to the frustration of Justice Thomas. He would have overturned the doctrine entirely, wiping out unenumerated rights and incorporation at a stroke. The Justice reserved judgment on whether any of those rights might qualify as privileges or immunities.3
Does it matter which constitutional provision rights are enforced through? It might have major consequences, for textual reasons. As I have previously mentioned, Fourteenth Amendment due process applies to every “person.” On the other hand, privileges and immunities belong to the “citizens of the United States.”
The Fourteenth Amendment grants citizenship to every person born in the United States (often referred to as birthright citizenship), and makes every U.S. citizen a citizen of the state in which they reside. Thus, its enactment made African Americans recently freed by the Thirteenth Amendment American citizens and citizens of their states.
The Privileges and Immunities Clause set a floor of federally protected rights owed to national citizens while the Equal Protection Clause guaranteed that freed persons would enjoy all the same rights under state law as whites. Or anyway they might have, but the Reconstruction Amendments were left to wither in the vine for a century, thanks in no small part to the Supreme Court.
What all this potentially means for our discussion is that equal protection and due process protect non-citizens on U.S. soil, but only citizens enjoy privileges and immunities. That seems to imply that states may violate the substantive rights of non-citizens with impunity (subject only to state law itself).
Non-citizens would still be “persons” entitled to due process, meaning fair procedures before a state could deprive them of life, liberty, or property. And they would still receive equal protection, in the sense that a state couldn’t discriminate against them on the basis of a suspect classification.
But states could deny both legally resident foreign nationals and undocumented immigrants privileges and immunities, meaning both enumerated rights, such as free exercise of religion, and unenumerated ones, such as bodily autonomy, because they are not “citizens of the United States.”
I have an hard time accepting that outcome, but the constitutional logic feels sound. Granted, state constitutions and laws might protect non-citizens’ rights independently, but the federal constitution apparently doesn’t require them to do so. I’m disturbed by the idea that nothing in the constitution prevents states from violating non-citizens’ fundamental rights.
Maybe equal protection supplies the answer. To deny non-citizens the rights enjoyed by citizens arguably denies them equal treatment under law. But it’s unquestioned that non-citizens are not entitled to all the rights of citizens. Non-citizens may not vote, for example. No one seriously argues that prohibiting non-citizen from voting violates equal protection.
And the argument is hard to follow, textually. Why would the drafters limit privileges and immunities to citizens if non-citizens are also entitled to them as persons enjoying equal protection of the law? If all “persons” are effectively entitled to privileges and immunities, the drafters of the Fourteenth Amendment would have said so. The differentiation between “citizens” and “persons” should be enforced, from a textualist perspective, regardless of its disturbing implications.
Presumably, the bill of right’s procedural provisions, such as the Sixth Amendment, are properly applied to the states through Fourteenth Amendment due process. I take issue only with the inclusion of substantive rights, such as those found in the First Amendment.
I’m not implying here that the court was necessarily wrong to hold that corporations are entitled to constitutional rights. Citizens United is a favorite whipping boy of the political left, but the New York Times and the ACLU are both corporations. If the First Amendment doesn’t protect their freedom of speech, we’ve got some problems.
Substantive due process includes both enumerated and unenumerated rights. The enumerated rights contained in the bill of rights are “incorporated” against the states. In addition, due process protects unenumerated rights that are “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.”