The Original Meaning of the 14th Amendment: Its Letter and Spirit

political interference, animosity towards the poor, and pervasive racial prejudice; and despite the ever-present problem of inadequate funding. The first people to head public defender offices were on quixotic quests, and too often, in jousting with their controlling boards, found themselves defeated.

Mayeux examines what it means to be a public defender organization. Public defenders could have been agents of legal and even social change, a reform movement, or at least a check on government power. The organizations could have been a way for “imagining the proper balance of power in a modern society between lawyers, the individual, and the state.” But nearly all the organizations were narrowly confined to criminal representation, usually in one jurisdiction, with a constant struggle for funding. Adversaries in court, public defenders found themselves also pitted against the police and prosecutors in legislative budget fights. We know who wins.

Mayeux ends her study just as harsh mandatory minimum sentences and the War on Drugs impacted the criminal justice system and strained public defense even more. The lack of adequate funding warped court decisions. Scholars, most notably the late William Stuntz, decried this fact because it precludes effective representation and leads to a skewing of criminal justice and procedure.

Mayeux points to hopeful exceptions. Small nonprofit organizations that take a holistic approach have sprung up. They represent indigent defendants, but they also deal with their clients’ substance abuse, mental illness, housing needs, domestic matters, and employment. They seek to fulfill the reformers’ promise. They work. We still live with the consequences.

As praiseworthy as these models are, it is hard to envision them as other than small nonprofits. Public defender organizations as they presently exist struggle to deal with just the criminal caseload and are not capable of providing indigent services. It would be too daunting to reconstruct local, state, and federal indigent defense as they presently exist. They require radical rethinking and funding.

Public defenders meanwhile seek to remedy many of the harsh and punitive policies of the past half century. In this way, public defender organizations can lead the way “to unwind mass incarceration, promote racial justice, alleviate economic inequality, challenge draconian immigration enforcement, and serve as the vanguard of a twenty-first century civil rights movement.” These public defenders can join with progressive prosecutors to change how we treat indigent defendants and can advocate for legislation. This means bringing back the ideals of social reform that initially animated the movement to provide indigent defense.

Still, the path is hard. The federal experience is cautionary. A recent report on the federal defender system, the Cardone Report, set forth principles for indigent representation, the most important being independence for the system. Though it was released with much fanfare, the judiciary considered many of the recommendations too radical. Congress has scant interest. Alas, the report is honored more in principle than in practice. Mayeux would understand. 

Jon M. Sands is the federal public defender for the District of Arizona.

The Original Meaning of the 14th Amendment: Its Letter and Spirit

By Randy E. Barnett and Evan D. Bernick

Harvard University Press, 2021 465 pages; $35.00

Reviewed by Henry S. Cohn

Professors Randy Barnett and Evan Bernick, both of Georgetown University Law Center, have two purposes in writing The Original Meaning of the 14th Amendment: Its Letter and Spirit. The first is to find “the original public meaning of the text” of the Fourteenth Amendment. In his forward to the book, leading Civil War historian James Oakes finds the authors’ efforts with respect to this purpose “superb.” He is impressed by the authors’ efforts to explain where phrases in the Fourteenth Amendment originated, what they meant when the Fourteenth Amendment was adopted by Congress in 1866, and how their meaning has changed over time.

Having examined the original meaning of the Fourteenth Amendment, the authors’ second purpose is to apply the original meaning to various Supreme Court cases that interpret the Fourteenth Amendment. They do so because they follow the originalist approach to interpreting the U.S. Constitution.

This approach has been defined as respecting, and adopting as final, the original meaning of phrases in the Constitution, at least where this meaning is specifically discernable. According to originalists, this meaning alone is to be used to decide constitutional cases. Originalism is highly controversial and has been rejected by other academics. Indeed, a 2009 New York University Law Review article by Mitchell N. Berman is titled “Originalism is Bunk.”

The book’s finest moments are in its discussion of three clauses in section 1 of the Fourteenth Amendment: the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause.

The authors’ most dramatic conclusion is that, although before the Civil War, the abolitionists were a disliked minority, their ideas had the most impact on the Fourteenth Amendment. Congressman John Bingham drafted the amendment, and abolitionism, according to Bingham’s biographer Gerard Magliocca, “was his life’s pursuit.”

The authors spend several chapters on the phrase in section 1 that declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The phrase comes from Sir William Blackstone’s Commentaries on the Law of England, published in the 1770s. Blackstone’s volumes were a major source for legal education in 18th-century America.

Thomas Jefferson, following Blackstone and Lord Mansfield (whose 1772 decision in Somerset v. Stewart declared that American slaves became free when they were brought to England), used the concept of privileg-

es and immunities in the Declaration of Independence, referring to “Life, Liberty and the pursuit of Happiness” as “unalienable Rights.” Alexander Hamilton and early American legal scholar James Kent relied on Blackstone in concluding that Americans also had privileges and immunities stemming from their citizenship.

Although not well remembered today, the main body of the Constitution also contains a Privileges and Immunities Clause. Article IV, section 2 provides, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” As the authors point out, however, this clause was interpreted by the Supreme Court before the Civil War to refer not to fundamental rights held by the citizens of each state, but to comity between the states. It prohibited one state from imposing greater burdens on citizens of another state.

The phrase took on new life and meaning with Bingham’s submission to Congress of a series of drafts, one of which was eventually adopted in the Fourteenth Amendment. President Andrew Johnson had vetoed the Civil Rights Act of 1866, and Bingham’s draft attempted to remedy Johnson’s veto. In addition, the Thirteenth Amendment, by making permanent a ban on slavery that superseded Lincoln’s partial ban in the Emancipation Proclamation, did not set forth that certain federal rights were fundamental and protected from interference by the states. Bingham’s draft, as adopted, remedied this as well by recognizing life, liberty, and property as fundamental rights that states could deny only with due process of law.

A debate arose over whether the right to vote was a privilege protected by the Fourteenth Amendment’s Privileges and Immunities Clause. To protect the rights of Black citizens to vote, the Fifteenth Amendment was adopted in 1870. Susan B. Anthony failed to get the amendment to include women’s suffrage.

The authors note that the Fourteenth Amendment’s Privileges and Immunities Clause was not generally relied upon by the courts after ratification of the amendment in 1868. In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Court, over a strong dissent by Justice Steven J. Field, limited the clause to fundamental rights in areas controlled by the federal government, not to those controlled by the states. This controversial holding was later relaxed. For example, in Hague v. CIO, 307 U.S. 496 (1939), the Court held that city permit requirements could not limit the freedom to assemble peaceably, which “is a privilege or immunity of a citizen of the United States secured against state abridgment.”

Barnett and Bernick spend less time discussing the other two clauses of section 1 of the Fourteenth Amendment: “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.”

With regard to due process, the authors trace the term back to the Magna Carta, in which King John in 1215 promised the barons at Runnymede that no free man would be imprisoned or otherwise punished except by the lawful judgment of his peers or in accordance with “the law of the land.” The phrase “law of the land” was later converted by the 16th-century treatise-writer Edward Coke to “due process of law.”

The writings of Alexander Hamilton prior to the adoption of the Fifth Amendment influenced James Madison to include a due process clause in that amendment. When John Bingham drafted the Fourteenth Amendment, he included a similar guarantee of due process. According to Barnett and Bernick, neither the Fifth nor Fourteenth Amendment distinguished between procedural and substantive due process.

The difference between the Fifth Amendment’s and the Fourteenth Amendment’s Due Process Clauses was that the Fifth Amendment’s limits the federal government, whereas the Fourteenth Amendment’s applies to state action. A point that the authors raise but do not resolve is the scope of the term “law” in “due process of law.” “Law” may include more than state legislative action.

With regard to equal protection, the authors make three points. First, although the phrase prohibits a state from denying “equal protection of the laws,” it does not require equality. Second, as with the Due Process Clause, the Equal Protection Clause leaves uncertain the scope of the term “laws.” Third, although the Privileges and Immunities Clause protects “citizens,” the Equal Protection Clause protects “any person.” In the 1870s, for example, it was held to cover Chinese immigrants who were not yet citizens.

Barnett and Bernick summarize their conclusions as follows: 1. The first sentence of the Fourteenth

Amendment, added after Bingham

submitted his initial drafts to Congress, is known as the Citizenship Clause. It overruled the Dred Scott decision by promising “full national citizenship to all those who meet its disjunctive criteria of birth or naturalization and who are subject to the jurisdiction of the United States.” 2. “The Privileges or Immunities Clause promises unstratified citizenship for all citizens, with a foundation of fixed civil rights on which subsequent generations can build and expand—but which they cannot destroy.” 3. “The Due Process of Law Clause promises to all persons within our territory that their natural rights to life, liberty, and property, the security of which justifies state power, will not be arbitrarily restricted by states.” 4. “The Equal Protection of the Laws

Clause promises these same persons that states will not merely refrain from violating their natural rights but will actively protect them from private action.” 5. Section 5 of the Fourteenth Amendment, allowing Congress to pass laws to enforce these guarantees, radically changed the Constitution.

Thus, according to Barnett and Bernick, with the ratification of the Fourteenth Amendment, the abolitionists, with John Bingham in the lead, had finally prevailed. 

Judge Henry S. Cohn was appointed a judge of the Connecticut Superior Court in 1997 and became a Connecticut Judge Trial Referee in 2015. He is the co-author of a book on the 1944 Hartford, Connecticut, Circus Fire published by Yale University Press. He has written several law review articles, and The Federal Lawyer has published his book reviews for many years.