The Supreme Court is currently considering whether racial-preference admissions programs at the University of North Carolina violate the equal-protection clause of the 14th Amendment. Students for Fair Admissions v. University of North Carolina is one of two cases before the Court this term that will decide whether publicly administered or funded colleges and universities may continue to use an applicant’s race as a factor in deciding to grant or deny an offer of admission.
Although the Supreme Court is right to consider whether the 14th Amendment established a colorblind Constitution, past decisions in this area have based their rulings on a reading of the equal-protection clause. A close reading of the historical materials, however, suggests that it is the state-citizenship clause that forbids race-based categorizing of American citizens.
The state-citizenship clause has long been ignored by courts and commentators. But the people who ratified the Fourteenth Amendment in 1868 understood it as constitutionalizing the bedrock principle of race-neutrality in matters involving local civil rights, including any state-secured local right to a public education. Race-based advantages or disadvantages in the distribution of such benefits is the definition of “caste based” discrimination forbidden by the original understanding of both the national- and state-citizenship clauses. In this way, Brown v. Board of Education is better understood as a case involving the equal rights of state citizenship and Bolling v. Sharpe is better understood as involving the equal rights of national citizenship.
Below is a brief sketch of the history and original understanding of the state-citizenship clause. The full argument and historical sources are presented in my forthcoming article, “The State Citizenship Clause,” to be published by the Pennsylvania Journal of Constitutional Law. The bottom line is simple: The state of North Carolina may not advantage or disadvantage state or national citizen applicants to the University of North Carolina on the basis of race.
The Text and the Court
Section One of the 14th Amendment declares:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Currently, the Supreme Court enforces only the last two provisions of Section One, the due-process and equal-protection clauses. These two clauses expressly protect the rights of all “persons” regardless of citizenship. The Court has long ignored the first three clauses, despite the fact that these opening provisions constitute the majority of Section One. The opening provision defines and secures the status of national citizenship, the second defines and secures the status of state citizenship, and the third demands that states respect the newly secured citizenship status of both. This textual emphasis on citizenship reflects a key concern of those who drafted and ratified the amendment, in particular southern black Americans who faced ongoing denials of equal citizenship and equal civil rights. Prior to the 14th Amendment, a state remained free to deny or diminish the rights of citizenship on the basis of race. The opening sentences of the 14th Amendment flipped this original federalist approach to citizenship.
Citizenship and the Original Constitution
The original Constitution left both state and national citizenship undefined. Antebellum courts and commentators presumed that determining the status of state citizenship had been left to the individual states. The common antebellum practice for white Americans was to treat local state residents as citizens of the state. White state citizens, in turn, were presumed to be citizens of the United States.
The situation for black Americans was quite different. Enslaved black Americans held no legal rights whatsoever. Free black Americans in the south were denied local citizenship and faced racially discriminatory laws denying them an equal right to buy and sell property, contract for labor, or engage in protect expression and religious exercise. Free black sailors from northern states faced imprisonment upon sailing into southern seaports. Even in the north, states often denied free black Americans equal civil rights, including suffrage rights and, occasionally, even the right to immigrate into the state.
Dred Scott and Republican Theories of Citizenship
In Dred Scott v. Sanford, Chief Justice of the Supreme Court Roger B. Taney pointed to this long history of discriminatory treatment and concluded that black Americans were not, and could not become, citizens of the United States. Dred Scott further inflamed an already divided country and helped trigger a civil war.
Members of the newly established Republican Party rejected Chief Justice Taney’s reasoning in Dred Scott. As far as Republicans were concerned, every person born on U.S. soil was a citizen of the U.S. and of his state of residence. Accordingly, when the Republican-dominated Congress during the Civil War passed the 13th Amendment in 1865, its members did so with the expectation that emancipated black Americans would automatically enjoy the status of national and state citizenship.
Unfortunately, southern Democrats had other ideas. Despite the passage and pending ratification of the 13th Amendment, the former rebel states continued to deny black residents the status of citizenship and instead enacted the Black Codes. These codes not only denied free black residents equal civil rights, but they also imposed draconian vagrancy laws that allowed for the arrest of unemployed black residents — who could then be sold into a system of convict labor.
In response, and only weeks after the ratification of the 13th Amendment, Republicans passed the 1866 Civil Rights Act. The opening line of the Act declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The Act then prohibited states from denying equal civil rights to resident American citizens on the basis of race.
Whether Congress had the constitutional authority to pass the Act, however, remained a matter of substantial doubt even among Republicans. Even if Congress had the authority to define national citizenship, the Act attempted to regulate local civil rights — rights generally secured by the status of state citizenship. It was quite possible that federal courts would rule that the Civil Rights Act was unconstitutional on the grounds that the Constitution reserved to the states the power to define the status and substance of state citizenship.
The Fourteenth Amendment
About a month after Congress passed the Civil Rights Act, the bipartisan Joint Committee on Reconstruction submitted a proposed 14th Amendment to the Constitution. The opening section protected the privileges or immunities of national citizenship and the rights of all persons to due process and the equal protection of the laws. The draft did not define national citizenship and it said nothing at all about the status and rights of state citizenship. John Bingham authored these three provisions, and there is no indication that he did so as an effort to constitutionalize the Civil Rights Act. Bingham had announced from the opening of the session that his efforts were directed at enforcing the federal Bill of Rights against the states — rights Bingham described as the privileges or immunities of national citizenship.
As drafted, however, the amendment left open a loophole in the Civil Rights Act whereby states might continue to deny local black residents the status of state citizenship. When Senator Jacob Howard presented Bingham’s draft to the Senate, Senate Republicans immediately recognized the failure to close the loophole. Instead of debating how to change the language in open session, Senate Republicans decided to consider how to fix the amendment in a series of private caucuses away from the Senate chamber.
When the Republicans returned, Jacob Howard announced a proposed addition to Bingham’s draft of Section One. Bingham’s language would remain unchanged, but the section would now begin with language defining and securing the status of national and state citizenship. Section One now read:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The additional language guaranteed that all persons born on American soil were U.S. citizens, regardless of race (contra Dred Scott), and that these citizens were equally citizens of their state of residence. Henceforth, neither federal nor state governments could deny or diminish the rights of citizenship on the basis of race. To be a citizen was to be the equal of other citizens, and the quintessential example of unequal citizenship was the unequal distribution of civil rights on the basis of race.
Americans north and south recognized the meaning and importance of the proposed citizenship clauses, in particular the new state-citizenship clause. Here is how the New Orleans Tribune, a black American newspaper, described the proposed state-citizenship clause:
Let us only consider the first section: “All person born in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States wherein they reside.” . . . This doctrine is the correct one. It was absurd to tell a man, “you are a citizen of the Republic at large, but you have no rights in your own State; you are not even a citizen there.” . . .
Every man of African descent is not only declared to be a citizen of the state wherein he resides, but he will be entitled to the same privileges and immunities as any other citizen. In other words, all classifications among citizens must fall. . . .
Legislation must consider all classes of citizens as forming one single mass, for which all laws must be equal. No discrimination can be made in the future either on account of color or on account of naturalization and origin. . . . Every title of citizenship is declared to be of like value, and to confer the same rights.”
Years later, Justice John Marshall Harlan would describe the citizenship clauses in the same way. In his Civil Rights Cases dissent, Harlan explained:
But what was secured to colored citizens of the United States — as between them and their respective States — by the grant to them of State citizenship? . . .There is one, if there be no others — exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. . . . Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals, or corporations exercising public functions or authority.
Colorblind Citizenship and the Affirmative Action Cases
The above presents only a small part of the history of the state-citizenship clause and the original effort to ban laws categorizing citizenship on the basis of race (or “caste” as Reconstruction Republicans often put it). There is much more in the full article, and it all points in the same direction. Republicans in 1868 understood that to hold the status of citizenship was to enjoy the equal civil rights granted to other citizens, regardless of race. This included all local civil rights, including the right of local citizens to a free public education.
To date, the Supreme Court has relied solely on the equal-protection clause as the textual basis for its equal-rights jurisprudence. Recent scholarship, however, suggests that the protections of this final clause of Section One was limited to laws that protected life, liberty, and property. Republicans believed the right to be protected against private violence was a natural right belonging to all persons. The rights of citizens (civil rights), however, went much further. They included all local rights secured by the status of being a resident citizen.
This includes the right not to be sorted according to race and denied an equal opportunity to enjoy a state provided education. States have broad discretion to determine the content of local civil rights — rights that depend on the status of state citizenship. This may or may not include the right to compete for a seat at a local public college or university. If a state chooses to provide such an opportunity for its citizens, however, it cannot condition or diminish that right due to an applicant citizen’s race.
The pending affirmative action cases provide the Supreme Court an opportunity to expand its enforcement of Section One to include the equal rights of national and state citizenship. It’s been a long time coming, but it’s time.
Kurt Lash is the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond School of Law.