Does the Fourteenth Amendment (1) guarantee equal justice for all? Implicitly, this question asks whether the Supreme Court may transformatively interpret the Amendment to ban practices that were commonplace in 1868 or to create new constitutional rights that were unknown at that time. (2) To answer this question, I need to address both the way in which the Fourteenth Amendment guarantees equality and the way in which it protects individual rights. My conclusion is that the Fourteenth Amendment is not a license to the Supreme Court to engage in transformative change.
I begin with the equality guarantee in the Fourteenth Amendment. On this point, I agree with John Harrison that the Amendment bans all forms of caste-like discrimination. (3) No State is allowed either to make or enforce any law that abridges the privileges or immunities of one citizen of the United States as compared to another. (4) This command accomplishes the central purposes of the Amendment, which were to constitutionalize the Civil Rights Act of 1866 and to ban the Black Codes. (5) The evil of the Black Codes was that they abridged, shortened, or lessened the 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 racial caste system of the South. The Amendment was not limited, however, to banning racial caste systems; it would also have been understood to ban the Hindu caste system or the reimposition of European feudalism with its division of society into hereditary nobles and serfs. At a very high level of generality, then, one may accurately say that the Fourteenth Amendment was originally meant to guarantee equal justice to all. But what does that mean for the role of the Supreme Court in applying the Fourteenth Amendment? How was the Supreme Court supposed to apply a constitutional ban on caste systems?
The easiest starting point is a racial caste system like the ones the Supreme Court held unconstitutional in Brown v. Board of Education. (6) At the time the Fourteenth Amendment was enacted, thirty-six of the thirty-seven states required in their state constitutions that public schools be provided. (7) The right to a public school education was, for all practical purposes, a privilege or immunity of state citizenship. Congress at the time almost passed--as Michael McConnell has shown--legislation outlawing segregated schools pursuant to Congress's Section 5 power to enforce the Fourteenth Amendment. (8) Such legislation could only be constitutional in the 1870s if public school education was thought to be a privilege or immunity.
In 1954, the Supreme Court held that segregation in schools led to an "abridgement" of the rights, privileges, and immunities of African Americans with respect to public schools as compared to all other Americans. (9) The fact that such segregation had been practiced in 1868 and had been around for a very long time did not change the fact that it was and always had been unconstitutional. For this reason, the Supreme Court was on solid originalist ground when it struck down segregation in public schools. (10)
In 1967, the Supreme Court in Loving v. Virginia (11) struck down laws forbidding racial intermarriage that had been around since 1868 and that were widely supported in the 1860s and 1870s. Was Loving correctly decided? The answer again is yes because the Fourteenth Amendment had constitutionalized the Civil Rights Act of 1866, which said that African Americans had the "same" right to make contracts as was enjoyed by a white citizen. (12) A white citizen had the right to marry another white citizen so the Fourteenth Amendment plainly commanded that African Americans had that "same" right. (13) Again, the fact the Framers of the Amendment did not understand this means nothing. Members of Congress rarely read much less understand the laws they make, but that does not make those laws any less binding on all of us. …