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HARVARD
LAW REVIEW
IN MEMORIAM: PAUL M. BATOR
David L. Shapiro Charles Fried Stephen Breyer
ARTICLES .
RACIAL CRITIQUES OF LEGAL ACADEMIA Randall L. Kennedy
LIMITING CONTRACTUAL FREEDOM IN
CORPORATE LAW: THE DESIRABLE CONSTRAINTS
ON CHARTER AMENDMENTS Lucian A . Bebchuk
NOTES
The Luck of the Law: Allusions to Fortuity in Legal Discourse
Incorporating the Republic: The Corporation in Antebellum
Political Culture
The Content Distinction in Free Speech Analysis After Renton
Membership Has Its Privileges and Immunities: Congressional Power
To Define and Enforce the Rights of National Citizenship
Over-Protective Jurisdiction?: A State Sovereignty Theory of Federal
Questions
Major Operational Decisions and Free Collective Bargaining:
Eliminating the Mandatory/ Permissive Distinction
The Anti-Discrimination Principle in the Common Law
BOOK REVIEW
WHAT CAN A LAWYER LEARN FROM
LITERATURE? James Boyd White
RECENT CASES
Copyright © 1989 by
1 Edwards v. California, 314 U .S. 160, 182 (1941 ) (Jackson, ]. , concurring) (quoting Acts
22 :26 (King James)).
2 See Patterson v. McLean Credit Union, 108 S. Ct. 1419 (1988).
3427 U.S. 160 (1976) .
4 See id. at 168-75 .
5 The analysis in this Note, which is concerned with normative questions of constitutional
interpretation, parallels in some respects the work of a group of historians who argue that the
fourteenth amendment and other legislative landmarks of the Reconstruction reflected a nation-
alistic political theory embodied by the Republican majority in Congress that sought to bring
HARVARD LAW REVIEW [Vol. 102:192$
A. Thirteenth Amendment
most civil rights under the protection of the national government. See, e.g., H. GRAHAM,
EVERYMAN'S CONSTITUTION 152-241, 298-336 (1968); H . HYMAN & W. WIECEK, EQUAL JUS-
TICE UNDER LAW (1982); J. TENBROEK, EQUAL UNDER LAW (1965); Kaczorowski, Revolution-
ary Constitutionalism in the Era of the Civil War and Reconstruction, 6 IN. Y. U. L. REv. 863
(1986). Although the claims presented here rely partly on this body of work, this Note is not
intended to be an argument about historical interpretation. Such an approach is vulnerable to
other legitimate perspectives on the historical record. See, e.g., Maltz, Reconstruction Without
Revolution: Republican Civil Rights Theory in the Era of the Fourteenth Amendment, 24 Hous.
L. REv. 221 (1987) (arguing that conservative elements within the Republican party prevented
it from completely nationalizing the protection of civil rights). As the war waged by scholars
over the historical legitimacy of the incorporation doctrine illustrates, the task of divining the
intent of the framers of the fourteenth amendment is particularly difficult and muddied; in
short, it is "an argument no one can win." J. ELY, DEMOCRACY AND DISTRUST 25 (1980).
6 392 U.S. 409 (1968).
CITIZENSHIP RIGHTS
B. Fourteenth Amendment
In the Civil Rights Cases,13 the Supreme Court limited Congress'
enforcement power under the fourteenth amendment to legislation
7 [d . at 440. The Court implicitly overruled the narrow reading of the Civil Rights Cases,
109 U.S. 3 (1883), which held that the thirteenth amendment could not authorize the Civil
Rights Act of 1875 because racial discrimination in public accommodations is not a "badge[]
and incident[J of slavery," see id. at 20-25 .
8 See L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-13, at 332-33 (2d ed. 1988).
9 [d . This broad reading of § 2, however, should be contrasted with the narrowness of the
self-executing reach of § I of the thirteenth amendment. See City of Memphis v. Greene, 451
U.S. 100, 124-29 (1981).
10 See Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022, 2028 (1987); Shaare Tefila
Congregation v. Cobb, 107 S. Ct. 2019, 2021-22 (1987).
11 Griffin v. Breckenridge, 403 U.S . 88, 102 (1971); see also Norwood v. Harrison, 413 U.S.
455,470 (1973) (stating that "some private discrimination is subject to special remedial legislation
in certain circumstances under § 2 of the Thirteenth Amendment" (emphasis added)).
12 Cf. United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 836 (1983) ("[IJt is a
close question whether [42 U.S.C.] § 1985(3) was intended to reach any class-based animus
other than animus against Negroes and those who championed their cause."); Georgia v. Rachel ,
384 U.S. 780, 791 (1966) (emphasizing the "racial character of the rights" protected by § I of
the Civil Rights Act of 1866). Of course, Congress, irrespective of the racial motivation of an
act, could still regulate private conduct that has the direct effect of enslaving an individual.
See Clyatt v. United States, 197 U .S. 207, 217-18 (1905) (upholding the Anti-Peonage Act, 42
U.S.C. § 1994 (1982)).
13 109 U.S. 3 (1883).
HARVARD LAW REVIEW [Vol. 102:1925
C. Commerce Clause
As every law student knows, the struggle in the Supreme Court
over the constitutionality of New Deal economic legislation resulted
in a vast expansion of the scope of congressional power under the
commerce clause. 19 While the Court has stated in dicta that there
may be limits inherent in the grant of the commerce power,20 Congress
has exploited this power to enact sweeping civil rights legislation
directed at private discriminatory conduct. 21
Despite this apparently bottomless reservoir of legislative power,
certain classes of activities may lie beyond the constitutional scope of
this clause. 22 The fact that the Court does conduct some review of
14 See id . at IO-19.
23 See id . at 464; cf. McClung, 379 U.S. at 303 ("[T]he mere fact that Congress has said
when particular activity shall be deemed to affect commerce does not preclude further exami-
nation by this Court. ").
24 See Heart of Atlanta Motel, 379 U.S. at 273 (Black, J. , concurring) ("Congress . . .
exclud[ed] some establishments from the Act ... because it believed its powers to regulate and
protect interstate commerce did not extend so far.").
2S See 42 U.S.C. § 2000a{C) (1982); cf. McClung, 379 U.S. at 304 ("The only remaining
question . . . is whether the particular restaurant either serves or offers to serve interstate
travelers or serves food a substantial portion of which has moved in interstate commerce. ").
26 For example, Congress would have had a difficult time justifying under the commerce
clause lowering the voting age in state elections to eighteen. See Bogen, The Hunting of the
Shark: An Inquiry into the Limits of Congressional Power Under the Commerce Clause, 8 WAKE
FOREST L. REv. 187, 199 (1972); cf. Oregon v. Mitchell, 400 U.S. lI2 (1970) (holding that
Congress lacks the authority under § 5 of the fourteenth amendment to lower the voting age to
eighteen in state elections).
27 See C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 58 (1969)
("[T]here hangs about all of these uses a feeling that the tool employed, though its use was licit
and it did the job, was not the perfectly adapted tool. ").
28 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).
29 See , e.g., United States v. Darby, 312 U.S. 100, lIS (1941) ("The motive and purpose of
a regulation of interstate commerce are matters for the legislative judgment upon the exercise
of which the Constitution places no restriction and over which the courts are given no control. ").
30 Edwards v. California, 314 U.S. 160, 182 (1941) (Jackson, J., concurring).
I93 0 HARVARD LAW REVIEW
31 See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 , 291 (1964) (Goldberg,
J., concurring) ("The primary purpose of the Civil Rights Act of 1964 ... is the vindication of
human dignity and not mere economics. ").
32 See generally L. TRIBE, supra note 8, §§ 5-4 to 5-6 , at 305-13.
33 The patchwork of the constitutional bases for congressional power to reach private dis-
criminatory conduct is aptly illustrated by a provision of the Civil Rights Act of 1968 that
sought to define and protect a set of federally protected rights against violent interference on
racial or other discriminatory grounds. See 18 U.S.c. § 245 (1982). The Act enumerates a list
of protected activities, see id. § 245(b)(I)-(3), and imposes criminal sanctions on any person
who interferes with an individual engaging in or seeking to engage in any of the listed activities
on account of his race, color, religion , or national origin, see id. § 245(b).
This statute accurately shows the interplay between the various sources of congressional
power to reach private discriminatory conduct and illustrates the fragmentation of constitutional
authorization. Congress believed that the statute's constitutional basis depended upon the nature
of the substantive activity. First, prohibitions on interference with the use of state facilities or
activities, see id. § 245(b)(2)(A)-(D), were premised on Congress' power under ~he enforcement
provisions of the fourteenth and fifteenth amendment, see S. REp. No. 721 , 90th Cong., 2d
Sess. 7 (1967) [hereinafter Senate Report]. Second, provisions dealing with interference with
rights created by the Civil Rights Act of 1964, see 18 U.S .C . § 245 (b)(2 )(E)-(F), were premised
on the commerce power. See Senate Report, supra, at 6-7 . Finally, provisions of the statute
dealing with voting and interstate travel , see 18 U.S.C. § 245(b)(I)(A), 245(b)(2)(E), were based
on congressional authority to punish private interference with rights of citizenship arising from
the relationship between the individual and the federal government. See Senate Report, supra,
at 6.
The Act illustrates some of the constitutional defects under current doctrine of federal
legislation designed to protect certain individual activities from private action . Only those
provisions of the Act premised on the commerce clause seem immune from constitutional attack,
because Congress clearly has power under the necessary and proper clause to protect rights
created by federal statutory law. See G. GUNTHER, INDIVIDUAL RIGHTS IN CONSTITUTIONAL
LAW 582 (4th ed. 1986). Those portions of the Act based on the power under § 5 of the
fourteenth amendment to protect the right to equal enjoyment of state facilities or activities are
doctrinally unstable. See supra pp. 1927-28. Finally, although recognizing that it had the
power to "make it a crime for any person . . . to interfere with the exercise of rights arising out
of the relationship between the citizen and the National Government," Senate Report, supra, at
6, Congress refused to extend this rationale beyond the holding in E x parte Yarbrough, 110
U.S. 651 (1884), which granted a right to be free from private interference while voting in a
general federal election.
CITIZENSHIP RIGHTS 193 1
41 For example, naturalization laws passed during the early Republic indicate that Congress
was "most concerned with insuring a candidate's sincere commitment to the basic values and
principles of the Republic. Once this commitment was shown, the naturalized alien had the
right to claim virtually all the privileges of full membership." J. KETTNER, supra note 39, at
247 ·
42 See Citizenship Opinion, supra note 37, at 389 ("The Constitution itself does not make
the citizens ; it is, in fact, made by them." (emphasis in original)); J. KETTNER , supra note 39,
at 287.
Professor Bickel, however, presented a sharply contrasting view of the nature of the American
polity, arguing that "the concept of citizenship plays only the most minimal role in the American
constitutional scheme ." A. BICKEL, supra note 36, at 33. In particular, Bickel noted that the
original Constitution presented the "edifying picture" of a polity that bestowed rights and ordered
its relations with "people" and not "citizens." See id. at 35-36. Bickel's descriptive narrative
of the importance of citizenship confuses the idea of citizenship with the mere legal definition
of "citizen. " As discussed in this Note, citizenship is a far broader concept, signifying an
individual's membership in a political community and the resulting relationship of allegiance
and protection that binds the citizen and the state. See infra note 43. In contrast, the legal
definition of which persons are considered "citizens" serves only the administrative requirements
of government and is not vital to the contractarian concept of rights that is at the heart of the
American polity.
43 This notion, however, does not necessarily exclude aliens from the protection of these
same fundamental rights. Aliens have generally been extended the same individual guarantees
as those enjoyed by persons who have achieved the legal status of citizenship. See Note, The
Extraterritorial Applicability of the Fourth Amendment, 102 HARV. L. REv. 1672 , 1675-76 &
n.17 (1989).
The language of the privileges or immunities clause of the fourteenth amendment, however,
seems to restrict the protection of rights to only those persons who have achieved the legal
status of citizenship. See U .S. CONST. amend. XIV, § I. This language, however, could be
construed to refer to a class of rights defined by their relationship to the broader concept of
citizenship, rather than designed to limit the class of beneficiaries to those who have achieved
the status of "citizen ." See Green, The Bill of Rights, the Fourteenth Amendment, and the
Supreme Court , 46 MICH. L. REv. 869, 904 (1948). Furthermore, there is nothing in the
historical record of the adoption of the fourteenth amendment that indicates that the protection
of the clause was meant to be limited only to citizens. See J. ELY, supra note 5, at 25 & n.48 .
44 "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States. " U.S. CONST. art. IV, § 2.
45 See L. TRIBE, supra note 8, § 6-34, at 528-29.
46 6 F. Cas. 546 (C.C .E.D. Pa. 1823) (No. 3,230).
CITIZENSHIP RIGHTS 1933
(1 798), was based not on an appeal to notions of natural justice, but that "the limits [Chase]
expounded were implied by the creation and character of the legislature itself' (emphasis in
original)).
54 U.S. CONST. amend. XIV, § I.
55 83 U.S. (16 Wall.) 36 (1873).
56 Id. at 79. This formulation has been repeated with minor variations in subsequent cases.
See, e.g., In re Quarles, 158 U.S. 532, 536 (1895) (holding that a citizenship right "does not
depend upon any of the amendments to the Constitution, but arises out of the creation and
establishment of the Constitution itself of a national government").
57 See Benoit, The Privileges or Immunities Clause of the Fourteenth Amendment: Can There
Be Life After Death?, II SUFFOLK L. REv. 61, 67 (1976).
58 See, e.g., Slaughter-House, 83 U.S. (16 Wall.) at 79-80. At the time of the decision in
Slaughter-House , such rights included the right to diplomatic protection, to petition Congress,
to communicate through a post office, and to take slaves into any territory. See 6 C. FAIRMAN,
HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION
1864-1888, PART ONE II25-27 (1971).
59 7 C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONST~UC
TION AND REUNION 1864-1888, PART Two 566 (1987); see also I C. ANTIEAU, MODERN
CONSTITUTIONAL LAW § 9:9, at 666 (1969); G. GUNTHER, supra note 33, at 570 n.2.
CITIZENSHIP RIGHTS I935
69 92 542 (1876).
U.S.
70 Id . at 552.
71 Id . at 55!.
72 See id. at 551-5 2.
73 Id . at 552 (emphasis added).
74 See id. at 552-53; G. GUNTHER, supra note 33, at 530; cf. Hague v. C.I.O., 307 U.S.
496 (1939) (opinion of Roberts, J., joined by Black, J.) (holding that the right to assemble
peaceably to discuss federal legislation is a privilege or immunity of United States citizenship
under the fourteenth amendment).
75 Other examples of citizenship rights derived from the structural relationships in the Con-
stitution include the right to be free from private interference in federal primary elections, see
United States v. Classic, 313 U.S. 299 (1941), the right to inform federal officials of violations
of federal law, see In re Quarles, 158 U.S. 532 (1895), the right to be free from violence while
in the custody of a federal marshal, see Logan v. United States, 144 U .S. 263 (1892), the right
to homestead free from private interference , see United States v. Waddell, 112 U.S. 76 (1884),
and the right to vote in a general federal election free from interference, see Ex parte Yarbrough,
1I0 U .S. 65 I (1884). For a listing of citizenship rights recognized by lower courts, see 2 C.
ANTIEAU, cited above in note 59, § 12:109, at 376 n. lI . See generally Brest, The Federal
Government's Power To Protect Negroes and Civil Rights Workers Against Privately Inflicted
Harm, I HARV. C.R.-C.L. L. REv. 2, 16-25 (1966); Feuerstein, Civil Rights Crimes and the
CITIZENSHIP RIGHTS 1937
Federal Power To Punish Private Individuals Jor Inteiference with Federally Secured Rights,
19 VAND. L. REv. 641, 643-67 (1966); Meyers, Federal Privileges and Immunities: Application
to Ingress and Egress, 29 CORNELL L.Q. 489, 493-98 (1944).
76 See 2 C. ANTIEAU, supra note 59, §§ 1l:1l-:12, at 196-200.
77 See generally Brest, The Fundamental Rights Controversy: Th e Essential Contradictions
oj Normative Constitutional Scholarship, 90 YALE L.J, 1063 (1981).
78 These rights, however, do not attach to an individual because of his legal status as a
citizen qua citizen. Rather, the status of "citizenship" - broadly defined as being a constituent
member of a political community - denominates the political relationship from which the rights
arise; it does not act to limit the beneficiaries of those rights. See supra notes 42-43.
The original insight into the existence and relevance of constitutional interpretation from
structures and relationships belongs to Professor Charles Black. See generally C. BLACK, supra
note 27. The analysis in this Note departs from Black's view that conceptions of "citizenship"
within the citizenship clause of the fourteenth amendment could provide an alternative doctrinal
basis for much of the rights derived from the due process and equal protection clauses. See id.
at 51-66. On this point, Black seems to go beyond his structural analysis to rest his view on
some prepolitical notion of citizenship. See id. at 61-66. This Note takes a narrower view of
the concept and assumes that the normative content of "citizenship" is exhausted by the structural
imperatives of the Constitution. Also, by resting his proposal on the citizenship clause, Black
seems destined to face a losing battle with the state action requirement of the fourteenth
amendment. This Note, however, shares Professor Black's aspiration that Congress, in the
preamble of a piece of civil rights legislation, will someday invoke "its power to declare and
give effect to the rights of citizenship as positive rights to full membership in the community."
Id . at 58.
HARVARD LAW REVIEW [Vol. 102:1925
79 See Crandall, 73 U.S. (6 Wall.) at 43; cj. United States v. Guest, 383 U.S. 745, 758 (1966)
(stating that the right to travel was "so elementary" that it "was conceived from the beginning
to be a necessary concomitant of the stronger Union the Constitution created").
80 See Cruikshank , 92 U.S. at 552-53.
8 1 See Hague v. C.1.0., 307 U.S. 496,513 (1939) (opinion of Roberts, J., joined by Black,
] .) (noting that "[c]itizenship of the United States would be little better than a name if it did
not carry with it the right to discuss national legislation and the benefits, advantages, and
opportunities to accrue to citizens therefrom").
82 The Court, however, was inconsistent in the level of generality at which it recognized
these rights in Crandall and Cruikshank . Although the rationale for the right to interstate travel
was expressed in Crandall in terms of the need of the national government to call citizens to its
service, there was no indication that the party had been engaged in government business or
that future application of the right to travel must be limited to the circumstances contemplated
by the Court's rationale. See supra p . 1935 . In Cruikshank, however, the Court narrowly
defined the right to assemble to encompass only those circumstances in which individuals were
attempting to discuss issues of national significance. See supra p. 1936. A more expansive
interpretation of this right would have expanded the scope of first amendment prohibitions
beyond the realm of congressional action. See Cruikshank, 92 U.S. at 551-53.
83 See Guest, 383 U.S. at 771-72 (Harlan, J., dissenting in part and concurring in part).
84 See, e.g., Ex parte Yarbrough, 110 U .S. 651, 662 (1884) (holding that a citizen's right to
vote in a congressional election creates a duty "to see that he may exercise this right freely and
to protect him from violence while so doing") .
85 See, e.g., United States v. Waddell, 112 U.S. 76, 80 (1884) (holding that the right to
homestead on public lands creates a duty to protect the individual so that he may "remain on
the land in order to ... perfect his incipient title [under the Homestead Act]").
86 See, e.g., In re Quarles, 158 U.S. 532 (1895) (holding that the right to inform a federal
official of a violation of law creates a duty to protect the citizen in the performance of that act).
CITIZENSHIP RIGHTS I939
[T]he right in question does not depend upon any of the amendments
to the Constitution, but arises out of the creation and establishment
. . . of a national government . . .. Any government which has
power to indict, try and punish for crime, and to arrest the accused
and hold them in safekeeping until trial, must have the power and
the duty to protect against unlawful interference its prisoners so held
89
95 Justice Harlan, in his partial dissent, argued that the Court's previous decisions had
protected the right to travel only against oppressive state action. See id. at 766-67 (Harlan,
J., concurring in part and dissenting in part) (citing United States v. Wheeler, 254 U.S. 281
(1920)). The majority rather brusquely countered that these decisions had been placed into
doubt by later cases, implying that any state action limitation was now being overruled. See
383 U.S. at 759 n.16.
961d. at 759 n.17 (emphasis added); see also Griffin v. Breckenridge, 403 U.S. 88, 105-06
(197 1).
97 See Novotny, 442 U.S. at 382-83 (Stevens, J" concurring); United States v. Williams, 341
U.S. 70, 77-82 (1951).
98 See Brest, supra note 75, at 16-22; Feuerstein, supra note 75 , at 643-50. The national
government's duty of protection for fourteenth amendment rights, however, is fulfilled when it
guarantees a right against state impairment. See Logan v. United States, 144 U.S. 263, 288-
89 (1892). But cf. Brewer v. Hoxie School Dist. No. 46, 238 F.2d 91, 98-<)9 (8th Cir. 1956)
(holding that a school board has a federal right to be free from private interference in performing
its fourteenth amendment duty to desegregate public schools).
99 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316 (1819); L. TRIBE, supra note 8, § 5-3, at 301-05.
1989] CITIZENSHIP RIGHTS 1941
the Court have been relatively narrow in scope. 100 Perhaps the strong-
est explanation for this relative narrowness lies in the historically
dualistic nature of American citizenship: the citizen owed allegiance
to and deserved protection from both the national and state govern-
ments. lOl Under this conception of citizenship, however, most fun-
damental rights were recognized and protected by state institutions
and laws, and the national government was limited to safeguarding
the much narrower guarantees that flowed from the federal Consti-
tution and statutory law. 102
The most important illustration of this historical understanding of
citizenship is Justice Miller's interpretation of the privileges or im-
munities clause in the Slaughter-House Cases. The Court rejected the
plaintiffs' argument that the clause had transferred the source of an
individual's fundamental rights, formerly embodied by the protections
of his state citizenship, to his status as a citizen of the United States.
Instead, the Court held that the clause did not create any new federal
rights; it simply served as an additional written guarantee for currently
recognized rights. 103 To Miller, the protection of the fundamental
rights of citizenship, as defined in Coifield, 104 lay wholly within the
province of the states. 105 Miller claimed that it was impossible for
the framers of the fourteenth amendment to have intended "to transfer
the security and protection of all the civil rights ... from the states
to the Federal government" or "to bring within the power of Congress
the entire domain of civil rights heretofore belonging exclusively to
the states. "106 The resulting interpretation of the privileges or im-
munities clause - which did not expand the role of the national
government by one jot - was so narrow as to reduce the clause to a
100 The method of inferring such rights from the imperatives of constitutional structure is
capable of being broadly expanded to cover many more zones of individual activity than are
recognized under current doctrine. Cf. C. BLACK, supra note 27, at 33-48 (arguing that most
of the protections of the first amendment could be inferred from structural analysis).
101 See Twining v. New Jersey, 2 II U.S. 79, 96 (I908) . This dualism is aptly illustrated by
the Court's framing of the main issue in Logan v. United States :
The principal question in this case is whether the right of a citizen of the United States,
in the custody of a United States marshal under a lawful commitment to answer for an
offense against the United States, to be protected against lawless violence, is a right
secured to him by the Constitution or laws of the United States, or whether it is a right
which can be vindicated only under the laws of the several states.
I44 U.S. at 282 (emphasis added).
102 The dualistic nature of citizenship is a corollary to the nineteenth-century theory of "dual
federalism," which viewed the states and the national government as occupying independent
and autonomous spheres of influence in which each was supreme. See generally Corwin, The
Passing of Dual Federalism , 36 VA. L. REv. I (I950) .
103 See Benoit, supra note 57 , at 67 .
104 See supra pp. I932-33 .
105 See Slaughter-House, 83 U.S. (I6 Wall. ) at 75-78 .
106 [d . at 77.
1942 HARVARD LAW REVIEW
107 E. CORWIN, THE CONSTITUTION OF THE UNITED STATES OF AMERICA 965 (1953).
However, the dissenters vigorously argued that the clause had been intended to effect the very
revolution in citizenship that Miller feared by making the national government the primary
guardians of all fundamental rights. See Slaughter-House, 83 U.S. (16 Wall.) at 122 (Bradley,
J" dissenting) ("[I]t was the intention of the people of this country in adopting [the fourteenth
amendment] to provide national security against violation . .. of the fundamental rights of the
citizen.").
108 See, e.g., Selective Draft Law Cases, 245 U.S. 366, 389 (1918) (stating that the fourteenth
amendment made national citizenship the "paramount and dominant" citizenship in the country).
109 Within a few decades, however, the views of the Slaughter-House dissenters would form
the springboard for the Court's plunge into "Lochnering" under the guise of due process. See
Howard, The Privileges and Immunities of Federal Citizenship and Colgate v. Harvey, 1939
U. PA. L. REv. 262, 272.
110 The clause has been invoked only once by a majority of the Court to invalidate a state
law, see Colgate v. Harvey, 296 U.S. 404 (1935), but this case was shortly overruled, see
Madden v. Kentucky, 309 U.S. 83 (1940).
CITIZENSHIP RIGHTS 1943
B. A Legislative Proposal
As the Supreme Court's intransigence in exploiting the full poten-
tial of the privileges or immunities clause illustrates,118 the dualistic
conception of citizenship has prevented the Court from broadly delv-
ing into the task of interpreting the rights of national citizenship.
Given this unwillingness by the Supreme Court, a Congress sympa-
thetic to protecting individual rights against nongovernmental inter-
ference should seek to define, recognize, and protect rights of national
citizenship through its ordinary legislative processes. 119
Although currently recognized citizenship rights have all been es-
tablished by judicial decision, these cases suggest that such rights are
merely attributes of a broader constitutional norm of "citizenship" -
a value defined by the structural and relational imperatives of the
Constitution. This principle is as much a part of the Constitution as
a right derived from textual explication. As Part II suggested, this
structural framework provides a nontextual source of legislative au-
thority that both defines the legitimate ends and provides the necessary
constitutional authorization for an exercise of this congressional
power. 120 Thus, under its general legislative power to employ all
means related to ends within the scope of a constitutional power, 121
11 8 S ee, e.g., Adamson v. California, 332 U .S. 46, 61-62 (1947) (Frankfurter, ]., concurring)
(prophesying "the mischievous uses to which that clause would lend itself if . . . not confined
[by the Slaughter-House interpretation)").
11 9 See Cox, The Supreme Court, I965 Term - Foreword: Constitutional Adjudication and
the Promotion oj Human Rights , 80 HARV. L . REv. 91 , 94 (1966) (stating that "it is highly
unlikely that the Court will evolve a rationale bringing nongovernmental action under those
prohibitions, without Congressional action , even though the private barriers interfere with
fundamental rights").
120 S ee supra pp. 1933-40.
Congress has the power to rationally determine the scope and limits
of the rights of citizenship in accordance with the interpretive heuristic
of structures and relationships. 122
Congressional recognition of such rights would yield several insti-
tutional advantages over case-by-case judicial development. First, by
subjecting the topic to open and robust debate in the public arena,
the process of writing such rights into law would be more widely
accepted by the citizenry than if such rights were created by judicial
fiat. 123 Indeed, deliberation on the question of which rights are nec-
essary attributes of our national citizenship would perform an edu-
cative function by instilling a habit of public discussion on the tone
and quality of our public life. 124 Second, Congress could tailor such
legislation to ensure that a broad interpretation of these guarantees
does not trench too closely on state sovereignty and the values of
federalism . 12s Finally, Congress has greater flexibility than the courts
to coordinate rights of national citizenship with existing civil rights
thing John Marshall's Major Out-of-Court Constitutional Commentary, 21 STAN. L. REv. 449
(1969) (discovering letters of Marshall which indicate that he did not view McCulloch as
endorsing a doctrine of unlimited congressional powers). Finally, cases that have recognized
citizenship rights suggest that Congress has the power to legislate affirmatively to protect such
rights. S ee supra pp. 1939-40.
122 This conclusion is supported by analogies to Congress' power under the commerce clause
and the thirteenth amendment to determine the scope of protections accorded by those texts.
See supra pp. 1926-30. The courts, as under sources of congressional power, would still retain
the role of policing Congress' power to define and protect rights of citizenship under a rationality
test.
123 See Cox, supra note II9, at 94.
124 Cf. Brest, Constitutional Citizenship, 34 CLEV. ST. L . REv. 175 (1986) (arguing that
there should be more public participation in constitutional decisionmaking).
125 See J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 171-259
(1980); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Com-
. position and Selection of the National Government, S4 COLUM. L. REv. 543 (1954). One
objection to the theory proposed in this Note - that the scope of Congress' power to recognize
and defend rights should extend to the very limit of the logic of our constitutional structure -
is that it is destructive of the values of federalism generally derived from our constitutional
order or grounded in the tenth amendment. However, this proposal makes Congress the
principal arbiter of such issues and, like current commerce clause doctrine, relies on national
political processes to provide the necessary outlet for the venting of federalism concerns. See
Garcia v. San Antonio Metro. Transit Auth., 469 U .S. 528 (1985) . But cf. Note, Over-Protective
Jurisdiction?: A State Sovereignty Theory of Federal Questions, 102 HARV. L. REv. 1948 (1989)
(arguing that federalism safeguards implicit in article III limit the scope of federal arising-under
jurisdiction).
Nor should the theory of congressional power proposed in this Note be viewed as extending
to an "inner circle" of private conduct in which other conflicting liberties may be implicated,
such as an individual's associational rights. See Buchanan, Federal Regulation of Private Racial
Prejudice: A Study of Law in Search of Morality, S6 IOWA L . REv. 473, 526-30. For example,
Congress presumably could not prohibit racial discrimination in marriage contracts without
infringing an individual's right to association or privacy. Cf. Runyon, 427 U.S. at 175-79
(holdil1g that application of 42 U.S.C. § 1981 to a private school that discriminated against
blacks does not violate the white children's associational or privacy rights) .
HARVARD LAW REVIEW
IV. CONCLUSION
126 See Sager, Fair Measure : The Legal Status of Underenforced Constitutional Norms, 9I
HARv. L. REv. I2I2 (I978) (arguing that Congress should go beyond judicial constructions to
protect underenforced constitutional norms).
127 Cj. Poe v. Ullman, 367 U .S. 497, 542 (I96I) (Harlan, ]. , dissenting) (observing that the
meaning of due process reflects a "balance struck by this country, having regard to what history
teaches are the traditions from which it developed as well as the traditions from which it broke.
That tradition is a living thing." (emphasis added)).
CITIZENSHIP RIGHTS 1947