A Lockean Analysis of Section One of the Fourteenth Amendment
Smith, Douglas G., Harvard Journal of Law & Public Policy
Despite--or perhaps because of--the great attention that scholars have devoted to it, the original meaning of Section One of the Fourteenth Amendment still remains a subject of intense debate. (1) While the Supreme Court has focused most closely on the Due Process and Equal Protection Clauses of the Amendment, a number of commentators recently have examined the much-neglected Privileges or Immunities Clause to gain insights into the intent of the drafters of Section One. (2) Despite these efforts, few have come up with a theory of Section One comprehensive enough to account for all three of these clauses and to delineate carefully the intended purpose of each. Often the roles ascribed to the clauses seem to overlap. For example, a substantive guarantee of fundamental rights is often attributed to both the Due Process and Privileges or Immunities Clauses and an anti-discrimination norm attributed to both the Privileges or Immunities and Equal Protection Clauses. Despite much effort, there remains a lack of agreement concerning the intended effects of these three clauses and their relation to one another.
One point of agreement, however, among many commentators studying the Amendment is that those responsible for its drafting and ratification were influenced strongly by natural law theories and that they aimed through the Amendment to guarantee citizens' freedom to exercise certain natural law rights. (3) Some have reached this conclusion after examining the influence of the antebellum writings of antislavery authors and their incorporation of natural law concepts. (4) Others point to the arguably more relevant evidence contained in the congressional debates on the proposed Amendment and its precursor, the Civil Rights Act of 1866. Whatever the source, however, it is fairly clear that natural law theory played some role in the framing of the Amendment.
As I have argued elsewhere, (5) a study of the natural law theories that were central to legal thought during the nineteenth century may lead to a greater understanding of the original meaning of the Fourteenth Amendment. In particular, this Article attempts to explain the three parts of Section One as an outgrowth of these theories, particularly those of John Locke. In studying Locke's Second Treatise on Civil Government, we see a strikingly similar partition contained in Locke's theory of the state as based on a compact among citizens. Locke's theory may be mapped onto the text of Section One of the Amendment in order to get some idea concerning the drafters' intent in utilizing the structure they chose. Although many commentators have puzzled over Section One's design, concluding that it was the result of poor or inartful drafting or that it was crafted in a haphazard way, analysis of the text in light of Locke's theories reveals a coherent structure that may have been apparent to those responsible for Section One's drafting and ratification. If this analysis is correct, it would explain the relatively sparse debate concerning the particular formulation that was enacted into law.
Following this line of reasoning, Part I first offers an overview of the history of the drafting of Section One. Notably, there was a lack of debate concerning that particular section when compared with the more controversial sections of the Amendment. The remainder of the Article examines the structure of Section One in light of the theory of the state as described by Locke. Part II briefly surveys Locke's influential theory of the state, including his model of government as based upon a compact among individuals emerging from a state of nature. Part III applies Locke's model to Section One of the Fourteenth Amendment, addressing each of the three clauses in turn. This Part first examines the Privileges or Immunities Clause of the Amendment, arguing that it was intended to provide a guarantee for certain fundamental capacities of citizenship thought to exist anterior to the formation of government--capacities flowing from either the absolute rights of individuals or the relative rights that arose as a result of their entering into a compact among themselves. …