Tuesday, December 1, 2009

Citizenship, political legitimacy, and substantive due process

The Cato Institute, along with the Pacific Legal Foundation, has submitted an amicus brief in McDonald v. Chicago the U.S. Supreme Court case that will determine whether the 2nd Amendment applies to state and local governments.

The brief is an interesting read. The authors (including Timothy Sandefur, one of my favorite libertarians) have explained the issues in a way even a non-lawyer like myself could easily follow. Along with Sandefur's multi-part series on the Slaughter-house Cases, it should be required reading for all American libertarians.

If McDonald overturns Slaughter-house, it could be one of the most pro-individual liberty SCOTUS decisions in a long time (even if you include Heller and Lawrence!)

One of the issues Sandefur, Levy, Hopper, and Shapiro grapple with in their brief is the relationship, if any, between different components of the first section of the 14th Amendment. These sections include: A. The citizenship clause; B. The privileges or immunities clause; and C. The due process clause.


"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."

As the brief makes clear, and as people on this very blog have pointed out to me, the citizenship clause does more than establish the citizenship of former slaves. Rather, it establishes a new kind of federal citizenship. One might even argue that it merely reiterates and formally recognizes federal citizenship, rather than creating it ex nihilo.

Thus, the citizenship clause made all persons "born or naturalized in the United States" citizens of both the U.S. and of, e.g. Kansas, Illinois, or whatever. This dual citizenship gives the federal government certain responsibilities toward U.S. citizens, regardless of what state they happen to reside in.

This is something to keep in mind when considering pseudo-libertarians like Ron Paul, who wish to abolish the citizenship clause: do we really want citizenship -- both state and federal -- to be entirely a creature of legislative fiat, to be revoked on the basis of majority will?

Certainly, I can see why Stormfront and the other white supremacists who supported Paul might be fans of the idea!

In any event, the brief establishes that its understanding of the citizenship clause is well-supported historically, and in accord with the intentions of the framers of the 14th Amendment. I won't replicate that analysis here.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

If there is such a thing as federal citizenship, what does it amount to? What does it require of both state and federal governments? The privileges or immunities clause is supposed to tell us. Sadly, on its own, it doesn't tell us very much.

The framers of the 14th Amendment could have spelled out what's on the list, but they didn't. The brief quotes Charles Sumner (my new hero), and others, to justify an expansive reading of the clause that goes beyond the narrow interpretation it was given in the Slaughter-House Cases.

However, I have a separate, complimentary point to make: why didn't the framers of the 14th Amendment spell out the list of privileges/immunities it supposedly protects? Why did they leave the clause vague and abstract?

With regard to the 14th Amendment, I believe we are in the same position we are in when it comes to the 8th's prohibition of "cruel and unusual punishment." The authors of the Bill of Rights could have given us a list of cruel punishments -- thumbscrews, I suppose -- or even explicitly dated the understanding of cruelty underlying the amendment, e.g. "punishments now considered cruel and unusual shall not be used."

They didn't do these things. Instead, as Ronald Dworkin has claimed, the authors of the Bill of Rights set down general principles, which may have implications Framers themselves might not have forseen.

If this analysis is applied to the privileges or immunities clause, and it is interpreted as a principle, rather than an eternally fixed, itemized list, the connection between the citizenship clause and the privileges or immunities clause becomes clear: taken together, they reiterates a principle of political legitimacy, one which was explicitly recognized in the Declaration of Independence.

This principle of legitimacy specifies what all governments must do, as a matter of moral law, in order to maintain the allegiance of their citizens. To maintain their moral legitimacy, the federal government must ensure that the rights of its citizens are not violated, whether by other citizens or by other (i.e. state) governments.

A less expansive interpretation of the privileges or immunities clause seems impossible to me: if the federal government failed to response when a foreign government violated the rights of its citizens, especially on American soil, it would be derilect in its duties, and this would undermine its legitimacy. Why does it matter if the rights-violating government is not, say, Iran, but Kansas? To maintain its legitimacy, the federal government must respond.

Thus, given that the citizenship clause did establish a federal form of citizenship, there is an obvious answer as to what the privileges or immunities of U.S. citizens are: they're the same rights and entitlements the federal government must observe, as a matter of both moral and constitutional law.

Indeed, I am not sure how one can avoid this somewhat moralized reading of the privileges or immunities clause (or, for that matter, the due process clause).

"...nor shall any state deprive any person of life, liberty, or property, without due process of law..."

I've always thought that the idea of substantive due process, by which the courts have applied parts of the Bill of Rights to the states, has done at least some of the job the privileges or immunities clause was supposed to do. The brief argues, fairly persuasively, that while there is some overlap, substantive due process is and was a less radical doctrine, with deeper roots in English common law.

My moralized reading of both clauses bears this out, actually. While one might deny the legitimacy of (for example) the English monarchy, it is virtually impossible to deny that a functioning legal system existed in England, and that laws were being made. Thus, the presence of a legal system and the presence of a legitimate political authority can, I think, come apart: you can at least have the former without the latter.

However, unless you're a very shallow kind of legal positivist, you will believe that there is at least a connection between morality and law, such that not everything that gets enacted necessarily counts as a law. Deeply unjust laws, we might say, echoing Augustine, are not really laws at all.

At the same time, an absence of deeply unjust laws in a particular legal system may not be enough to establish the legitimacy of a particular government or state. The bar for political legitimacy is, arguably, quite a bit higher, and I believe the Declaration bears out this line of thought.

Thus, substantive due process recognizes that there are moral limits on what can even count as a valid law. And no one -- even non-citizens -- ought to be deprived of their liberty in the absence of a valid law. In contrast, political legitimacy requires more of governments; more than that, the requirements target the government's treatment of citizens, not persons more generally.

In fact, the wording in the 14th Amendment bears this out: while the due process clause mentions "persons", the privileges or immunities clause mentions "citizens."

I believe this is an additional reason, aside from textual and historical evidence, to think of the two clauses as overlapping, and even related, but not identical (for example, it is probably true that a state which repeatedly denies its citizens of liberty without due process of law also loses its legitimacy.)

All things considered, I deeply enjoyed this brief. The above is simply a non-legal scholar's attempt to get at a conceptual distinction between the two clauses of the 14th Amendment, one which can be grounded in fairly intuitive moral considerations.