Membership Has Its Privileges and Immunities - Congressional Power to Define and Enforce the Rights of National Citizenship

8/14/2019 Membership Has Its Privileges and Immunities - Congressional Power to Define and Enforce the Rights of National

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VOLUME 102 JUNE 1989 NUMBER 8

HARVARDLAW REVIEWIN MEMORIAM: PAUL M. BATOR

David L. Shapiro Charles Fried Stephen BreyerARTICLES .

RACIAL CRITIQUES OF LEGAL ACADEMIA Randall L. KennedyLIMITING CONTRACTUAL FREEDOM IN

CORPORATE LAW: THE DESIRABLE CONSTRAINTSON CHARTER AMENDMENTS Lucian A . Bebchuk

NOTESThe Luck of the Law : Allusions to Fortuity in Legal DiscourseIncorporating the Republic: The Corporation in Antebellum

Political CultureThe Content Distinction in Free Speech Analysis After RentonMembership Has Its Privileges and Immunities: Congressional Power

To Define and Enforce the Rights of National CitizenshipOver-Protective Jurisdiction?: A State Sovereignty Theory of Federal

QuestionsMajor Operational Decisions and Free Collective Bargaining:

Eliminating the Mandatory/ Permissive DistinctionThe Anti-Discrimination Principle in the Common Law

BOOK REVIEWWHAT CAN A LAWYER LEARN FROM

LITERATURE?

RECENT CASESJames Boyd White

Copyright 1989 byT H E HARVARD LAW REVIEW A S S O CIA T IO N

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HARVARD LAW REVIEW [Vol. 102:192$Part I briefly surveys the doctrinal limits of constitutional authorization to legislate against private discriminatory conduct. Part IItraces the notion in American political thought that an individual'sstatus as a member of a political community carries with it certaininherent rights, and shows how the Supreme Court has given concreteexpression to this idea by recognizing certain classes of unenumeratedindividual rights. Part II I suggests how a modernized conception ofcitizenship rights can serve as authority for a program of legislationdesigned to reach classes of private discriminatory action that currently lie beyond the accepted constitutional limits of congressionalpower.

1. THE CONSTITUTIONAL SAFE HARBOR FO R PRIVATEDISCRIMINATORY CONDUCT

Current constitutional doctrine authorizes Congress to enact legislation to protect individual rights against private discriminatory conduct under several different heads of constitutional authorization.Each of these doctrinal sources of legislative power, however, is restricted by its own inherent limits, and no single source can providea coherent and consistent constitutional foundation for congressionalaction to reach the myriad forms of unacceptable private discriminatory conduct.

A. Thirteenth AmendmentIn Jones v. Alfred H. Mayer Co.,6 the Supreme Court expansivelyinterpreted the enabling section of the thirteenth amendment to au

thorize legislation directed at private racially discriminatory conductenacted under Congress' discretion "rationally to determine what aremost 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 LA W (1982); J. TENBROEK, EQUAL UNDER LA W (1965); Kaczorowski, Revolution-ary Constitutionalism in the Era of the Civil War and Reconstruction, 6IN . Y. U. L. REv. 863(1986). Although the claims presented here rely partly on this body of work, this Note is notintended to be an argument about historical interpretation . Such an approach is vulnerable toother legitimate perspectives on the historical record. See, e.g., Maltz, Reconstruction WithoutRevolution: 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 preventedit from completely nationalizing the protection of civil rights). As the war waged by scholarsover the historical legitimacy of the incorporation doctrine illustrates, the task of divining theintent of the framers of the fourteenth amendment is particularly difficult and muddied; inshort, it is "an argument no one can win." J. ELY, DEMOCRACY AND DISTRUST 25 (1980).

6 392 U.S. 409 (1968 ).


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CITIZENSHIP RIGHTS

the badges and the incidents of slavery."7 However, under broadreading of Jones, Congress could state that the infringement of aprescribed set of rights constituted the dominion of one person overanother, and legislate against such conduct as a violation of the thirteenth amendment. 8 Thus, "[i]f Jones is read literally ... Congresswould possess plenary authority ... to protect all bu t the most trivialindividual rights from both governmental and private invasion."9Although the Court has never defined the limits of Jones, thethirteenth amendment's potential as a source of broad congressionalpower to reach private action appears to be limited by its history.Despite the Court's view that the amendment authorizes enforcementlegislation directed at acts of private discrimination on account ofancestry or ethnic characteristics,lO the question remains whether italso sanctions legislation reaching forms of nonracial discrimination.In fact, the Court has expressed its concern about "[t]he constitutionalshoals that would lie in the path of interpreting [enforcement legislation] as a general federal tort law."l1 Moreover, the historical motivation for the thirteenth amendment - elimination of the vestiges ofblack slavery - suggests that Congress may have less leeway to definethe "badges and incidents of slavery" for forms of nonracial bias, suchas discrimination based on religion, gender, or sexual orientation, thanit currently does for racial bias. 12

B. Fourteenth AmendmentIn 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 CivilRights 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 th eself-executing reach of I of the thirteenth amendment. See City of Memphis v. Greene, 451U.S. 100, 124-29 (1981).

10 See Saint Francis College v . Al-Khazraji, 107 S. Ct. 2022, 2028 (1987); Shaare TefilaCongregation 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 legislationin 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 aclose question whether [42 U.S.C.] 1985(3) was intended to reach any class-based animusother 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 ofthe Civil Rights Act of 1866). Of course, Congress, irrespective of the racial motivation of anact , 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 , 42U.S .C. 1994 (1982)) .

13 109 U.S . 3 (1883).


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HARVARD LAW REVIEW [Vol. 102:1925directed against forms of state action that infringed on fourteenthamendment rights.14 Th e vitality of this holding was placed intodoubt by United States v. Guest,15 in which six Justices, concurringin two separate opinions, suggested that section 5 of the fourteenthamendment empowered Congress to legislate against purely privateconduct. 16 Considerable confusion remains, however, over how fa rthese six Justices (only one of whom is now on the Court) envisionedCongress' enforcement authority extending. 17 The Court, unfortu-nately, has not definitively resolved this question, leaving the scopeof Congress' power to reach purely private conduct under section 5,at best, in a state of flux. 18

C. Commerce ClauseAs every law student knows, the struggle in the Supreme Court

over the constitutionality of New Deal economic legislation resultedin a vast expansion of the scope of congressional power under thecommerce clause. 19 While the Court has stated in dicta that theremay be limits inherent in the grant of the commerce power,20 Congresshas exploited this power to enact sweeping civil rights legislationdirected at private discriminatory conduct. 21

Despite this apparently bottomless reservoir of legislative power,certain classes of activities ma y lie beyond the constitutional scope ofthis clause. 22 The fact that the Court does conduct some review of

14 See id . at IO-19.15383 U.S. 745 (1966).16 See id. at 781-84 (Brennan, ]., joined by Warren, C.]., and Douglas, J., concurring inpart and dissenting in part); id . at 762 (Clark, J., joined by Black & Fortas, J]., concurring).17 See id. at 780-81 (Brennan, ]., concurring in part and dissenting in part) (reserving thequestion whether 5 reaches the right to equal use of privately owned facilities). See .generallyNote, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement

Clauses of the Reconstruction Era Amendments, 74 COLUM. L. REv. 449, 513-15 (1974) (surveying scholarly views on the scope of Guest).18 One avenue along which congressional power under 5 might be expanded other than adirect interpretation of that section as covering private conduct is to relax the requirement ofwhat conduct constitutes "state action." For an example of a rather strained interpretation ofprivate conduct as state action, see Guest, 383 U.S. at 755-57. The state action doctrine,however, continues to enjoy vitality. See L. TRIBE, CONSTITUTIONAL CHOICES 246-66 (1985).19 See generally L. TRIBE, supra note 8, 5-4 to 5-6, at 305-13.20 See, e.g., Maryland v. Wirt2, 392 U.S. 183, 196 n.27 (1968); NLRB v. Jones & LaughlinSteel Corp., 301 U.S. I , 37 (1937); see also Hodel v. Virginia Surface Mining & ReclamationAss'n, 452 U.S. 264, 307-13 (1981) (Rehnquist, ]., concurring in the judgment).21 See, e.g., Civil Rights Act of 1964, 201-207, 42 U.S.C. 2000a (1982) (public accommodations); id. 701-716, 42 U.S.c. 2000e (employment); see also Daniel v. Paul, 395 U.S.298 (1969) (upholding application of the public accommodations title); Katzenbach v. McClung,

379 U.S. 294 (1964) (same); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964)(same) .22 See Note, supra note 17, at 464-65 (arguing that racially discriminatory practices ofprivate schools cannot be reached under the commerce clause).


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CITIZENSHIP RIGHTSCongress' determination whether the activity regulated has an impacton commerce is evidence that the Court takes seriously its view thatthere may well be judicially enforceable limits on the commercepower.23 Also, the principal features of major civil rights legislationsuggest that Congress itself does no t believe that it has unlimitedcommerce power.24 For example, title I I of the Civil Rights Act of1964, which bans discrimination in public accommodations, wasconfined to only those facilities that have a demonstrable nexus tointerstate commerce. 25 In addition, in many cases, Congress mayfind it more difficult to justify civil rights legislation under a com-merce clause rationale than under some other form of constitutionalauthorization .26

Even if Congress has virtually unbounded power under the com-merce clause to protect individual rights against private infringement,such an approach, consistently followed, lacks a certain constitutionalfitness. 27 Although commerce clause doctrine has successfully evadedMarshall's dictum28 that Congress' powers may not be used as a"pretext" for legislating on objects no t entrusted to it,29 civil rightslegislation based on the power to regulate interstate commerce posesa unique problem by threatening to mask or even impair the expres-sive power of such laws. Justice Jackson, warning of the dangersof a lack of moral adaption between means and ends, stated that"[t]o hold that the measure of [an individual's] rights is the com-merce clause is likely to result eventually . . . in denaturing humanrights."3o

23 See id . at 464; cf. McClung, 379 U.S. at 303 ("[T]he mere fact that Congress has saidwhen 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 andprotect 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 remainingquestion . . . is whether the particular restaurant either serves or offers to serve interstatetravelers 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 commerceclause 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 WAKEFOREST L. REv. 187, 199 (1972) ; cf. Oregon v. Mitchell, 400 U.S. lI2 (1970) (holding thatCongress lacks the authority under 5 of the fourteenth amendment to lower the voting age toeighteen 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 licitand 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 ofa 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) .


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I930 HARVARD LAW REVIEWLegislation intended to protect the rights of individuals ought tobe justified, criticized, defended, and judged by reference to thosesources of authority and principles that our polity accepts as bases formoral judgment. 31 The rationalization of such laws on commerceclause grounds diverts the attention of legislators, judges, and citizensfrom these deeper purposes to the less weighty concerns of "substantialeconomic effect" or "cumulative effect" that make up the accretion ofjurisprudence in this area. 32 Although such doctrinal disingenuousness serves the instrumental purpose of immunizing civil rights legislation from judicial invalidation, it remains worthwhile to inquire whether such laws could be based on a more candid and appropriate grounding that reflects our highest constitutional aspirations. 33

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 ofhuman 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 discriminatory 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 onracial or other discriminatory grounds. See 18 U.S.c. 245 (198 2). The Act enumerates a listof protected activities, see id . 245(b)(I)-(3), and imposes criminal sanctions on any personwho interferes with an individual engaging in or seeking to engage in any of the listed activitieson account of his race, color, religion, or national origin, see id. 245 (b).

This statute accurately shows the interplay between the various sources of congressionalpower to reach private discriminatory conduct and illustrates the fragmentation of constitutionalauthorization. Congress believed that the statute's constitutional basis depended upon the na tureof the substantive activity. First, prohibitions on interference with the use of state facilities oractivities, see id. 245(b)(2)(A)-(D), were premised on Congress ' power under ~ h e enforcementprovisions of the fourteenth and fifteenth amendment, see S. REp. No . 721 , 90th Cong., 2dSess. 7 (1967) [hereinafter Senate Report]. Second, provisions dealing with interference withrights created by the Civil Rights Act of 1964, see 18 U.S .C. 245 (b)(2 )(E)-(F), were premisedon the commerce power. See Senate Report, supra, at 6-7 . Finally, provisions of the statutedealing with voting and interstate travel , see 18 U.S.C. 245(b)(I)(A), 245 (b)(2)(E), were basedon congressional authority to punish private interference with rights of citizenship arising fromthe 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 federallegislation designed to protect certain individual activities from private action . Only thoseprovisions 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 rightscreated by federal statutory law. See G. GUNTHER, INDIVIDUAL RIGHTS IN CONSTITUTIONALLAW 582 (4th ed. 1986). Those portions of the Act based on the power under 5 of thefourteenth amendment to protect the right to equal enjoyment of state facilities or activities aredoctrinally unstable . See supra pp. 1927-28. Finally, although recognizing that it had thepower to "make it a crime for any person . . . to interfere with the exercise of rights arising outof the relationship between the citizen and the National Government," Senate Report, supra, at6, Congress refused to extend this rationale beyond the holding in E x parte Yarbrough, 110U.S. 651 (1884), which granted a right to be free from private interference while voting in ageneral federal election.


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CITIZENSHIP RIGHTS 1931II. CITIZENSHIP AS AN ENDURING VALUE IN THE CONSTITUTION

Although the term "citizen" is used throughout the text of theoriginal Constitution,34 the document neither defines that term norelaborates on any of its broader implications. On a technical level,"citizen" - l i ke the terms "subject," "inhabitant," or the more generic,"national" - fills the practical need for a label to describe the relationship between the individual as a member of a political communityand the polity itself. 35 Yet, the use of the term naturally suggestsquestions of greater importance: Who is a citizen? What, if any, isthe substantive content of the relationship that citizenship describes?Unfortunately, the broader consequences of the use of the word "citizen" were left largely unanswered by the original Constitution. 36 AsAttorney General Bates observed in 1862, "[elighty years of practicalenjoyment of citizenship, under the Constitution, have not sufficed toteach us either the exact meaning of the word, or the constituentelements of the thing we prize so highly."37Despite this lack of constitutional definition, our political thoughthas always recognized that "citizen" designates something more thana mere legal status - that "citizenship means something. "38 Oneconcept of citizenship is as a binding relationship between the individual and the political community, under which the polity is obligatedto guard and respect certain fundamental rights of the individual. 39As scholars have noted, the roots of this theory of the American polityreach deep into our national consciousness. 4o According to this conception of "volitional allegiance," membership in the American political community is consecrated by an act of choice exercised by the

34 See U.S. CONST. art. I, 2, 3 (qualification for members of House of Representativesand Senate); id. art. II, I (qualification for President); id . art. III, 2 (diversity of statecitizenship clause); id. art. IV, 2 (privileges and immunities clause).3S See Minor v. Happersett, 88 U.S. (2 I Wall.) 162, 166 (1874); McGovney, AmericanCitizenship, II COLUM . L. REv. 231, 236, 241-42 (19II). This use of the term "citizen,"however, does not necessarily exclude resident aliens. See infra note 43 .36 See Minor, 88 U.S. (21 Wall.) at 170; A. BICKEL, THE MORALITY OF CONSENT 35 (1975).37 Citizenship, lOOp . Att'y Gen. 382, 383 (1868) (opinion dated Nov. 29, 1862) [hereinafterCitizenship OpinionJ.38 The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, II4 (1873) (Bradley, J. , dissenting) .39 See J. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 173,208, 287 (1978) . For expressions of this sentiment in Supreme Court decisions, see, for example,United States v. Wong Kim Ark, 169 U.S. 649, 655-66 (1898); and United States v. Cruikshank,92 U.S. 542, 549 (18 76).40 See, e.g., B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 55-93 (1967); L. TRIBE, supra note 8, 8-1, at 560-67; G. WOOD, THE CREATION OF THEAMERICAN REpUBLIC, 1776-1787, at 259-305 (1969); Corwin, The "Higher Law" Background

of American Constitutional Law, 42 HARV . L. REv . 149 (1928); Grey, Origins of the UnwrittenConstitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REv. 843(1978). For a skeptical view of the importance of natural rights in the American constitutionalscheme, see J. ELY, cited above in note 5, at 48-54.


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1932 HARVARD LAW REVIEW [Vol. 102:1925individual,41 which converts him from a natural person into a "citizenof the United States, "42 and which entitles him to receive the protection of those rights flowing from the fundamental maxims of life,liberty, and property. 43One way to transform these "terms of allegiance" into concretelegal protections is to view the rights of citizenship as "fundamental"or "natural" rights that originate from sources beyond the Constitutionor statutory law. This idea was most clearly expressed in earlyconstitutional thought by the dominant antebellum interpretationof the privileges and immunities clause of article IV,44 which wasenacted to guarantee to noncitizens of a state the exercise of the sameprivileges that are enjoyed by citizens of that state. 45 In Corfieldv. Coryell,46 Justice Bushrod Washington, on circuit, added a new

41 For example, naturalization laws passed during the early Republic indicate that Congresswas "most concerned with insuring a candidate's sincere commitment to the basic values an dprinciples of the Republic. Once this commitment was shown, the naturalized alien had theright to claim virtually all the privileges of full membership." J. KETTNER, supra note 39, at247

42 See Citizenship Opinion, supra note 37, at 389 ("The Constitution itself does not makethe 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 Americanpolity, arguing that "the concept of citizenship plays only the most minimal role in the Americanconstitutional scheme." A. BICKEL, supra note 36, at 33. In particular, Bickel noted that theoriginal Constitut ion presented the "edifying picture" of a polity that bestowed rights and orderedits relations with "people" and not "citizens ." See id. at 35-36. Bickel's descriptive narrativeof the importance of citizenship confuses the idea of citizenship with the mere legal definitionof "citizen. " As discussed in this Note , citizenship is a far broader concept, signifying anindividual's membership in a political community and the resulting relationship of allegianceand protection that binds the citizen and the state. See infra note 43. In contrast, the legaldefinition of which persons are considered "citizens" serves only the administrative requirementsof government an d is not vital to the contractarian concept of rights that is at the heart of theAmerican polity.

43 Th is notion, however, does not necessarily exclude aliens from the protection of thesesame fundamental rights. Aliens have generally been extended the same individual guaranteesas those enjoyed by persons who have achieved the legal status of citizenship. See Note, TheExtraterritorial 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 legalstatus of citizenship. See U.S. CONST . amend. XIV, I . This language, however, could beconstrued to refer to a class of rights defined by their relationship to the broader concept ofcitizenship, rather than designed to limit the class of beneficiaries to those who have achievedthe status of "citizen ." See Green, The Bill of Rights, the Fourteenth Amendment, and theSupreme Court , 46 MICH. L. REv. 869, 904 (1948). Fur the rmore, there is nothing in thehistorical record of the adoption of the fourteenth amendment that indicates that the protectionof 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 Citizensin 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).


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CITIZENSHIP RIGHTS 1933gloss on the privileges and immuni t ies clause by holding tha t it re -quired a state to gran t to nonresidents "those privileges and immuni t ieswhich are, in their nature, fundamental; which belong, of r ight, toth e citizens of all free governments . "47 The list of "fundamental"activities recognized in Corfield48 suggests that Washington intendednot merely to declare a catalog of rights of interstate equality; instead,he intended to create a consti tutional basis for federal protection offundamental r ights of both residents and nonresidents of a state .49However , this fundamental r ights view of th e privileges and immun-ities clause - which would have broadly expanded national protectionof certain individual liberties - has never gained acceptance with th eSupreme Court . 50 I f such rights of citizenship exist, thei r definitionmust be sought in other corners of the Consti tution.

A. National Citizenship as a Source of Nontextual RightsAlthough "citizenship rights" might be viewed as a mere term of

art describing the enumera ted guarantees of the Const i tut ion andfederal law,51 th e Supreme Court has appl ied this notion broadly todelimit a category of personal r ights tha t are defined by the logic andnecessit ies of our consti tutional structure. 52 Such rights, however , arenot based on appeals to fundamental values or natural justice, bu tare defined by the architectural genius of th e document itself. 53

47 Id. at 55 r (emphasis added).48 See id . at 55r-52 .49 See Hague v. c.I.O ., 307 U.S. 496 , 5rr (r939) (opinion of Roberts , J., joined by Black,J.). See generally Antieau , Paul's Perverted Privileges or the True Meaning of the Privileges

and Immunities Clause of Article Four, 9 WM . & MARY L. REv. r (r967).50 See Paul v. Virginia, 75 U.S. (8 Wall.) r68, r80-8r (r868) (holding that a state need notgrant a fundamental right to a nonresident if the state also restricted the enjoyment of that rightby its own residents) .The clearest example of the potential implications of Washington's interpretation of theprivileges and immunities comity clause is found in Chief Justice Taney's apprehension in DredScott v. Sandford, 60 U.S . (r9 How.) 393 (r857). His opinion that blacks, whether free orenslaved, were not considered to be citizens of the American political community was ostensiblyaddressed to the issue of whether a federal court could hear Scott 's claim as a case arising underdiversity jurisdiction. See D. FEHRENBACHER, SLAVERY, LAW, & POLITICS r86 (r98r). Taney,however, spent nearly half of his opinion discussing this jurisdictional question because herealized that a grant of citizenship to blacks would also allow them to claim the protection fortheir fundamental rights under Corfield's interpretation of the privileges and immunities clause.

See Dred Scott, 60 U.S. (9 How.) at 406-07 , 422-23; D. FEHRENBACHER , supra, at r88-


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I934 HARVARD LAW REVIEWThe concept of citizenship rights was given at least verbal recog-nition in section I of the fourteenth amendment: "No state shall makeor enforce any law which shall abridge the privileges or immunitiesof citizens of the United States."54 In the Slaughter-House Cases,55Justice Miller, writing for the Court, elaborated on this language byspeculating that the rights of national citizenship "owe their existenceto the Federal government, its national character, its Constitution, orits laws."56This definition implies that the rights that flow from nationalcitizenship can be divided into three categories according to the sourceof the right: the body of rights written into the Constitution, rights

that are prescribed in federal statutory law, and certain nontextualrights which antedate the passage of the fourteenth amendment. Mill-er's incorporation of the first two categories as rights of citizenship,however, is largely redundant an d adds nothing to the scope of theclause or to the force of the idea of citizenship; the states were alreadyobligated to respect these rights under the supremacy clause.57 Underthe last category, however, the Court hinted at a potential basis fordefining the substantive content of rights of citizenship that neitherrelied on appeals to their fundamental nature nor merely echoed ex-isting constitutional guarantees. The Court's illustrations of this lastcategory suggest that the concept of citizenship rights incorporates arealm of non extual rights, rooted in the concept of national citizenshipand revolving around the logic of structural relationships resultingfrom the Constitution and the formation of a national polity. Casesthat have recognized citizenship rights suggest that Congress has thepower to legislate affirmatively to protect such rights. 58 Under thisview, the fourteenth amendment did not create the privileges of UnitedStates citizenship; rather they "had lain there all along, awaiting theoccasion for their assertion and recognition."59(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 inoriginal)) .

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 notdepend upon any of the amendments to the Constitution , but arises out of the creation andestablishment of the Constitution itself of a national government").57 See Benoit, The Privileges or Immunities Clause of the Fourteenth Amendment: Can There

Be Li fe 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 inSlaughter-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 6C. FAIRMAN,HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION

1864-1888, PART ONE II25-27 (1971).59 7C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: R E C O N S T ~ U C -TION AND REUNION 1864-1888, PART Two 566 (1987); see also I C. ANTIEAU, MODERNCONSTITUTIONAL LAW 9:9, at 666 (1969) ; G. GUNTHER, supra note 33 , at 570 n.2.


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CITIZENSHIP RIGHTS I935The most prominent example of this definition of rights of citizenship is the Court's treatment of the right to travel - the right mentioned in the Slaughter-House opinion that has received the mostextensive doctrinal development. The doctrinal roots of the right totravel are found in Miller's own opinion in Crandall v. Nevada, 60 adecision handed down before the passage of the fourteenth amend

ment. 61 In Crandall, the Supreme Court held that a Nevada law,which imposed a tax on each person leaving the state by means ofpublic transportation, infringed on an individual's right to travel freelythroughout the nation. 62 Refusing to analyze the law on the basis oftextual challenges to its validity,63 the Court instead held that theright to travel was an implicit guarantee of the Constitution thatemanated from certain structural considerations of the federal union. 64

The reasoning in Crandall illustrates how the Court has inferredindividual rights from the structural logic of the Constitution itself.The Court initially noted that the federal government had the "rightto call to [the national capital] any or all of its citizens to aid in itsservice" and that this right must be free from state interference. 65Extrapolating from this initial premise, Justice Miller held that thisright of the national government was accompanied by the "correlative"right of an individual to travel throughout the nation to serve theneeds of the federal government. 66 Under the facts pleaded in thecase, however, there was no indication that the passengers affectedby the Nevada tax had been engaged in any governmental business.67Thus, the purported rationale for its holding notwithstanding, theCourt actually recognized a broader right of the individual, not dependent on the purpose of the trip, to travel throughout the Unionunhampered by state restrictions. 68

60 73 u.s. (6 Wall.) 35 (1868) .61 This fact supports the view that rights of citizenship are implicit from the formation of anational political union and do not originate from any written provi sion of the Constitution .

See supra p. 1934 .62 See Crandall, 73 U.S . (6 WaiL) at 43-49.63 See id . at 40-43.64 See id . at 43-44; see also The Passenger Cases, 48 U.S. (7 How.) 283 , 492 (1849) (Taney,

C.] . , dissenting), quoted in Crandall, 73 U.S. (6 WaiL) at 49 ("We are all citizens of the UnitedStates; and, as members of the same community, must have the right to pass and repass throughevery part of it without interruption .... ). Seemingly uncomfortable with basing a constitutional right on nontextual grounds , various members of the Court have sought to ground theright to travel in a number of textual provisions. See, e.g., Zobel v. Williams, 457 U.S. 55 ,78-81 (1982) (O'Connor, ]. , concurring in the judgment) (privileges and immunities clause);Shapiro v. Thompson , 394 U.S. 618, 669-71 (1969) (Harlan, ]. , dissenting) (due process clause);Crandall, 73 U.S . (6 WaiL) at 49 (Clifford, ]. , concurring) (commerce clause).

65 Crandall, 73 U.S . (6 WaiL ) at 43 .66 See id. at 44 .67 See Edwards v. California, 314 U.S. 160, 178 (1941) (Douglas, ] ., concurring) .68 See Lomen, Privileges and Immunities Under the Fourteenth Amendment , 18 WASH . L.

REv. 120 , 122 (1943) .


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HARVARD LAW REVIEW [Vol. 102:1925The use of structural constitutional considerations to infer individ-ual rights is also illustrated by United States v . Cruikshank,69 decidedshortly after the passage of the fourteenth amendment, in which the

Court held that the right of individuals to assemble in order to petitionCongress on matters of national concern "is an attribute of nationalcitizenship and, as such, under the protection of and guarantied [sic]by, the United States."70 The defendants in Cruikshank ha d beenindicted under a federal criminal conspiracy statute for participatingin a conspiracy to hinder the free exercise of a citizen's "[l]awful rightand privilege to peaceably assemble together with each other and withother citizens . . . for a peaceful and lawful purpose."71 The Courtheld that this allegation failed to make out a lawful indictment becausethe right to assemble was a right committed to the protection of thestates and therefore was not within the bounds of the conspiracystatute. 72

In dicta, however, Chief Justice Waite suggested that the indict-ment would have been lawful had it been amended to allege that thedefendants had interfered with "[t]he right of the people peaceably toassemble for the purpose of petit ioning Congress for a redress of griev-ances, or for any thing else connected with the powers or the dutiesof the National Government ."73 Waite argued that the "very idea ofa government, republican in form," implied that the right to assemblefor the purpose of petitioning Congress on matters of national concernwas an attribute of national citizenship and could therefore be pro-tected against both governmental and private interference.74 As inCrandall, the Court, without mention of the privileges or immunitiesclause, was acknowledging a right of national citizenship. 75

69 92 U.S. 542 (1876) .70 Id . at 552 .71 Id . at 55!.72 See id. at 551-52.73 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 citizenshipunder 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, seeUnited States v. Classic, 313 U.S. 299 (1941) , the right to inform federal officials of violationsof federal law, see In re Quarles, 158 U.S. 532 (1895) , the right to be free from violence whilein the custody of a federal marshal , see Logan v. United States, 144 U.S. 263 (1892), the rightto 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 FederalGovernment's Power To Protect Negroes and Civil Rights Workers Against Privately InflictedHarm, I HARV. C.R.-C.L. L. REv. 2, 16-25 (1966) ; Feuerstein, Civil Rights Crimes and the


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CITIZENSHIP RIGHTS 1937B. Inferring from Structures and Relationships

I. Interpretive Heuristics. - Decisions that have recognized theexistence of certain nontextual guarantees under the rubric of "citizenship rights" acknowledge a source for the implication of unenumeratedrights within our constitutional scheme.16 Unlike theories of fundamental rights jurisprudence,77 these cases suggest that such rights areinherent within the constitutional scheme of our polity and are notdependent on an external, preexisting, moral or political theory. Asa member of the national polity, the individual, in his status as citizen,is entitled to protection not only of rights enumerated in the Constitution, but also of rights that must implicitly arise as a consequenceof certain structures and relationships within that document. 78

The Supreme Court has relied on two major interpretive themesto give substantive content to guarantees of citizenship rights. Underthe first theme, the Court has inferred individual guarantees from thestructural necessities of the formation of a national polity. Casesrecognizing such rights suggest that certain individual activities riseto the level of a right of citizenship because they are an integral partof a function or power of the national government. Such rights therefore are not strictly "personal rights" derived from an entitlementinherent in an individual, bu t are defined solely by the need to effectuate a structural power or function of the national government. Forexample, in Crandall, the Court justified an individual's right to in-

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: Applicationto 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: The 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 acitizen qua citizen. Rather, the status of "citizenship" - broadly defined as being a constituent

member of a political community - denom inates the political relationship from which the rightsarise; 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 fromstructures and relationships belongs to Professor Charles Black. See generally C. BLACK, supranote 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 doctrinalbasis 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 onsome prepolitical notion of citizenship. See id. at 61-66. This Note takes a narrower view ofthe concept and assumes that the normative content of "citizenship" is exhausted by the structuralimperatives of the Constitution. Also, by resting his proposal on the citizenship clause, Blackseems destined to face a losing battle with the state action requirement of the fourteenthamendment. This Note, however, shares Professor Black's aspiration that Congress, in thepreamble of a piece of civil rights legislation, will someday invoke "its power to declare andgive effect to the rights of citizenship as positive rights to full membership in the community."Id . at 58.


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HARVARD LAW REVIEW [Vol. 102:1925terstate travel on the grounds that infringement of this right wouldimpair the ability of the federal government to call citizens to itsservice at the national capital. 79 Similarly, the Court stated in Cruik-shank that the nature of republican government required constitutionalprotection for the right of persons to assemble for purposes of peti-tioning Congress. 80 Although the Cruikshank Court was not specificabout the origins of this right, later interpretations suggest that thevery nature of American government is diminished if individuals donot have a right to gather together to discuss issues of national im-portance. 81 Thus, in propounding both the right to interstate traveland the right to gather to discuss questions of national import, theCourt emphasized that these individual activities were necessary topreserve a function or attribute of the national government. 82

Under the second interpretive theme, the Court has inferred citi-zenship rights from those instances in which the national governmentis bound in a direct relationship to a citizen by an important consti-tutional policy. This relationship creates a duty in the national gov-ernment to protect the citizen while in the province of the relationshipand a correlative entitlement in the individual to receive such protec-tion. 83 The relationship between the government and the citizen canbe created by the Constitution itself,84 an exercise of a constitutionalpower,85 or a necessary attribute of the national government. 86 This

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 beginningto 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, andopportunities to accrue to citizens therefrom").

82 The Court, however, was inconsistent in the level of generality at which it recognizedthese rights in Crandall and Cruikshank . Although the rationale for the right to interstate travelwas expressed in Crandall in terms of the need of the national government to call citizens to itsservice, there was no indication that the party had been engaged in government business orthat future application of the right to travel must be limited to the circumstances contemplatedby the Court's rationale. See supra p . 1935 . In Cruikshank, however, the Court narrowlydefined the right to assemble to encompass only those circumstances in which individuals wereattempting to discuss issues of national significance. See supra p. 1936. A more expansiveinterpretation of this right would have expanded the scope of first amendment prohibitionsbeyond 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 andto 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 tohomestead on public lands creates a duty to protect the individual so that he may "remain onthe 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 federalofficial of a violation of law creates a duty to protect the citizen in the performance of that act).


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CITIZENSHIP RIGHTS I939last category is illustrated by Logan v. United States,87 in which theCourt established the right of prisoners to be free from violent interference while in the custody of a federal marshal. 88 In recognizingthis right, the Court stated:

[T]he right in question does not depend upon any of the amendmentsto the Constitution, bu t arises out of the creation and establishment. . . of a national government . . . . Any government which haspower to indict, try and punish for crime, and to arrest the accusedand hold them in safekeeping until trial, must have the power andthe duty to protect against unlawful interference its prisoners so held89These two interpretive sources of citizenship rights - the structure

and nature of national government and relationships between thefederal government and the citizen - are not necessarily mutuallyexclusive. For example, in Ex parte Yarbrough,90 the potential forthese sources to overlap was apparent in the Supreme Court's holdingthat an individual had the right to be free from violence while votingin a federal congressional election. 91 The Court chose not to base itsopinion on Congress' power to regulate the time, place, and mannerof holding federal elections; it held instead that the right derived fromthe federal government's duty to protect the individual in his relationship to the government as a voter, and also on "the necessity of thegovernment itself, that its service shall be free from the adverseinfluence of force and fraud. "92 Yarbrough therefore illustrates thatcertain zones of individual activity deserve protection as citizenshiprights under both of the dominant rationales.

2 . Direct Federal Protection. - Because rights of citizenship areconsidered to flow from the structural logic of the Constitution, suchrights can be protected against both public and private interference. 93For example, in construing the right to travel recognized in Crandall,the Court in United States v. Guest held that a criminal conspiracystatute reached private discriminatory conduct that infringed on theexercise of an individual's right to interstate travel. 94 Brushing aside

81 144 U.S. 263 (1892).88 See id. at 293-96.89Id. at 294.90 II O U.S. 651 (1884).91 See id. at 662-67.92 Id. at 662.93 See Great Am. Fed . Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 383-85 (1979) (Stevens,J., concurring) (stating that "privileges and immunities of citizenship" not derived from the

fourteenth amendment can be protected against interference by private action); G. GUNTHER,supra note 33, at 570 & n.2.

94 See Guest, 383 U.S. at 757-60.


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I940 HARVARD LAW REVIEW [Vol. 102:1925precedents that suggested that the right to travel could be enforcedonly against state infringement,95 the Court noted:

The right to interstate travel is a right that the Constitution itselfguarantees . . . . Although [cases interpreting the right to travel]involved governmental interference with the right of free interstatetravel, their reasoning fully supports the conclusion that the consti-tutional right of interstate travel is a right secured against interferencefrom any source whatever, whether governmental or private. . . . [I]tis important to reiterate that the right to travel freely . . . findsconstitutional protection that is quite independent of the FourteenthAmendment. 96

Thus, the national government has the power to enforce rights ofcitizenship directly against private infringement, unconstrained by thestate action requirement of the fourteenth amendment. 97Decisions that have recognized various privileges and immunitiesof national citizenship suggest that Congress has the power to legislateaffirmatively to protect such rights; the existence of a right of nationalcitizenship creates a correlative duty in Congress to enforce such rightsagainst private interference. 98 Th e scope of congressional power toprotect citizenship rights expressed in these cases is simply a derivativeof the well established constitutional principle that Congress has thepower to pursue aims that are within the scope of the Constitution.99

C. Limitations Imposed by the Dualistic Nature ofAmerican CitizenshipDespite the Supreme Court's willingness to recognize rights of

national citizenship in certain contexts, the actual rights inferred by95 Justice Harlan, in his partial dissent, argued that the Court's previous decisions hadprotected 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 intodoubt by later cases, implying that any state action limitation was now being overruled. See383 U.S. at 759 n.16.961d . at 759 n.17 (emphasis added); see also Griffin v. Breckenridge, 403 U.S. 88, 105-06

(1971).97 See Novotny, 442 U.S. at 382-83 (Stevens, J" concurring) ; United States v. Williams, 341U.S. 70, 77-82 (1951) .98 See Brest, supra note 75, at 16-22; Feuerstein, supra note 75 , at 643-50. The nationalgovernment's duty of protection for fourteenth amendment rights , however, is fulfilled when itguarantees 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-


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1989] CITIZENSHIP RIGHTS 1941the Court have been relatively narrow in scope. 100 Perhaps the strongest explanation for this relative narrowness lies in the historicallydualistic nature of American citizenship: the citizen owed allegianceto and deserved protection from both the national and state governments. lO l Under this conception of citizenship, however, most fundamental rights were recognized and protected by state institutionsand laws, and the national government was limited to safeguardingthe much narrower guarantees that flowed from the federal Constitution and statutory law. 102

The most important illustration of this historical understanding ofcitizenship is Justice Miller's interpretation of the privileges or immunities clause in the Slaughter-House Cases. The Court rejected theplaintiffs' argument that the clause had transferred the source of anindividual's fundamental rights, formerly embodied by the protectionsof 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 federalrights; it simply served as an additional written guarantee for currentlyrecognized rights. 103 To Miller, the protection of the fundamentalrights of citizenship, as defined in Coifield, 104 lay wholly within theprovince of the states. 105 Miller claimed that it was impossible forthe framers of the fourteenth amendment to have intended "to transferthe security and protection of all the civil rights ... from the statesto the Federal government" or "to bring within the power of Congressthe entire domain of civil rights heretofore belonging exclusively tothe states. "106 The resulting interpretation of the privileges or immunities clause - which did not expand the role of the nationalgovernment by one jo t - was so narrow as to reduce the clause to a100 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 arerecognized under current doctrine . Cf. C. BLACK, supra note 27, at 33-48 (arguing that mostof the protections of the first amendment could be inferred from structural analysis).

101 See Twining v. New Jersey, 2I I U.S. 79, 96 (I908) . This dualism is aptly illustrated bythe 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 anoffense against the United States, to be protected against lawless violence, i s a rightsecured to him by the Constitution or laws of the United States, or whether it is a rightwhich can be vindicated only under the laws of the several states .I44 U.S. at 282 (emphasis added).

102 The dualistic natur e of citizenship is a corollary to the nineteenth-century theory of "dualfederalism," which viewed the states and the national government as occupying independentand autonomous spheres of influence in which each was supreme. See generally Corwin, ThePassing 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.


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1942 HARVARD LAW REVIEW"practical nullity. "107 Despite occasional platitudes to the contrary, 108the Court has generally clung to Miller's narrow construction of theprivileges or immunities clause, and thus foreclosed the possibility thatthe protection of rights, defined in relation to the concept of citizenship, would be transferred to the federal government.109

III. CITIZENSHIP IN THE MODERN ERAThe Supreme Court - while declining the invitation extended bythe language of the privileges or immunities clause to engage in fundamental rights jurisprudence l10 - has recognized a nontextual sourceof legislative authority, grounded in the structural logic of the constitutional framework, that empowers Congress to define and protect therights of national citizenship. This source of congressional power hasthe potential to be boldly expanded in order to give real constitutionalsubstance to our ideals of citizenship. This Part argues that thehistorical fetters imposed by the dualistic conception of citizenshiphave been overtaken by transformations in the nature of our polity

and the meaning of national citizenship since the decision in SlaughterHouse. A sympathetic Congress should employ this modern conception of national citizenship as a foundation for legislation protectingimportant domains of personal activity from private, nongovernmentalinterference.

A. Modernizing the Slaughter-House CasesA century of constitutional development has cast grave doubt onthe dualistic conception of citizenship enshrined in Slaughter-House.Indeed, the past hundred years has revived the revolution in federalstate relations that the S laughter-House dissenters argued had been

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 veryrevolution in citizenship that Miller feared by making the national government the primaryguardians 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 fourteenthamendment] to provide national security against violation . .. of the fundamental rights of thecitizen . ).108 See, e.g., Selective Draft Law Cases, 245 U.S. 366, 389 (1918) (stating that the fourteenthamendment 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 formthe springboard for the Court's plunge into "Lochnering" under the guise of due process. SeeHoward, The Privileges and Immunities of Federal Citizenship and Colgate v. Harvey, 1939U. PA . L. REv. 262, 272.110 The clause has been invoked only once by a majority of the Court to invalidate a statelaw, see Colgate v. Harvey, 296 U.S. 404 (1935), but this case was shortly overruled, seeMadden v. Kentucky, 309 U.S. 83 (1940) .


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1944 HARVARD LAW REVIEWThe dualistic vision of citizenship - along with its corollary thatviews states as the principal protectors of individual rights and itsnarrow vision of the meaning of citizenship - has therefore seen its

death and burial. Yet, one of its lingering legacies is the doctrinallimits imposed on sources of congressional power to protect personalrights against private infringement. This remains a critical constraintin an era in which private conduct poses as great a threat to individualliberties as do the actions of governments .B. A Legislative Proposal

As the Supreme Court's intransigence in exploiting the full potential of the privileges or immunities clause illustrates,118 the dualisticconception of citizenship has prevented the Court from broadly delving into the task of interpreting the rights of national citizenship.Given this unwillingness by the Supreme Court, a Congress sympathetic to protecting individual rights against nongovernmental interference should seek to define, recognize, and protect rights of nationalcitizenship through its ordinary legislative processes. 119Although currently recognized citizenship rights have all been established by judicial decision, these cases suggest that such rights aremerely attributes of a broader constitutional norm of "citizenship" -a value defined by the structural and relational imperatives of theConstitution. This principle is as much a part of the Constitution asa right derived from textual explication. As Part II suggested, thisstructural framework provides a nontextual source of legislative authority that both defines the legitimate ends and provides the necessaryconstitutional authorization for an exercise of this congressionalpower. 120 Thus, under its general legislative power to employ allmeans related to ends within the scope of a constitutional power, 121

118 See, 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 andthe Promotion oj Human Rights , 80 HARV . L . REv . 91 , 94 (1966) (stating that "it is highlyunlikely that the Court will evolve a rationale bringing nongovernmental action under thoseprohibitions, without Congressional action , even though the private barriers interfere withfundamental rights").

120 See supra pp . 1933-40 .121 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Although the doctrine of

congressional implied powers is usually framed in relation to an enumerated power in theConstitution, the ends of legitimate congressional action need not be strictly confined to powersenumerated in article I , 8 . See L . TRIBE, supra note 8, 5-3, at 304-05 . The structural andrelational imperatives of the Constitution are grounded in that document and are as legitimatean end of congressional power as any goal spelled out in the text. Indeed, Marshall's opinionin McCulloch, the font of the implied powers doctrine, could be read to rest on the same typeof structural interpretation . See C. BLACK , supra note 27, at 14-15 . But cf. Gunther, Unear-


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CITIZENSHIP RIGHTS 1945Congress has the power to rationally determine the scope and limitsof the rights of citizenship in accordance with the interpretive heuristicof structures and relationships. 122Congressional recognition of such rights would yield several institutional advantages over case-by-case judicial development. First, bysubjecting the topic to open and robust debate in the public arena,the process of writing such rights into law would be more widelyaccepted by the citizenry than if such rights were created by judicialfiat. 123 Indeed, deliberation on the question of which rights are necessary attributes of our national citizenship would perform an educative function by instilling a habit of public discussion on the toneand quality of our public life. 124 Second, Congress could tailor suchlegislation to ensure that a broad interpretation of these guaranteesdoes not trench too closely on state sovereignty and the values offederalism.12s Finally, Congress has greater flexibility than the courtsto coordinate rights of national citizenship with existing civil rightsthing 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 asendorsing a doctrine of unlimited congressional powers) . Finally, cases that have recognizedcitizenship rights suggest that Congress has the power to legislate affirmatively to protect suchrights . See supra pp. 1939-40.

122 This conclusion is supported by analogies to Congress' power under the commerce clauseand 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 retainthe role of policing Congress' power to define and protect rights of citizenship under a rationalitytest.

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 recognizeand 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 constitutionalorder or grounded in the tenth amendment. However, this proposal makes Congress theprincipal arbiter of such issues and, like current commerce clause doctrine, relies on nationalpolitical processes to provide the necessary outlet for the venting of federalism concerns . SeeGarcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). But cf. Note, Over-ProtectiveJurisdiction?: A State Sovereignty Theory of Federal Questions, 102 HARV. L. REv. 1948 (1989)(arguing that federalism safeguar ds implicit in article II I limit the scope of federal arising-underjurisdiction).

Nor should the theory of congressional power proposed in this Note be viewed as extendingto 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 RacialPrejudice: A Study of Law in Search of Morality, S6 IOWA L . REv. 473, 526-30 . Fo r example,Congress presumably could not prohibit racial discrimination in marriage contracts withoutinfringing 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 againstblacks does not violate the white children's associational or privacy rights) .


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HARVARD LAW REVIEWlegislation in order to create a comprehensive and cohesive regime ofindividual guarantees. 126

What real results can be expected from Congress' exercise of itspower to determine the rights of citizenship? Although not a selfdefining concept, citizenship represents a balance between our nationaltraditions and our evolving ideas of membership in the political community.127 The Supreme Court' s verbal linkage of ideas of citizenshipto rights flowing from structural implications of the Constitution,however, provides both a defining principle and a source of legislativeauthority with which to give this idea substantive relevance. Facedwith constraints on its current powers to protect the individual fromprivate discriminatory harm, Congress should use this non extual basisof legislative authority to develop a schedule of rights that are determined through the mode of structural and relational interpretation.Yet, in making these legislative determinations, Congress should beguided not merely by the craft-like task of doctrinal manipulation,but also by deliberation on the meaning of our citizenship. Althoughall of our aspirations of citizenship may not be within the reach ofthis source of legislative authority, the results of such a dialogue wouldprovide a guide for determining those activities, within the realm ofstructural and relational inference, that are so valued and importantto our polity as to be considered rights of American citizenship.

IV. CONCLUSIONAlthough the title of "citizen" has been reduced to a mere legalstatus, the belief that "citizenship means something" remains a powerful emotional and symbolic legacy in our political traditions. ThisNote has argued that the Supreme Court on a few occasions has

attempted to transform this sentiment into concrete constitutional doctrine by recognizing a class of rights derived from the structural andrelational imperatives of our constitutional system. These opinions -although reflecting an era in which local institutions and laws werethe primary guardians of individual liberties - illustrate basic principles of constitutional interpretation capable of both further refine-

126 See Sager, Fair Measure : The Legal Status of Underenforced Constitutional Norms, 9IHARv . L. REv. I2I2 (I978) (arguing that Congress should go beyond judicial constructions toprotect underenforced constitutional norms).

127 Cj. Poe v. Ullman, 367 U.S. 497, 542 (I96I) (Harlan , ]. , dissenting) (observing that themeaning of due process reflects a "balance struck by this country , having regard to what historyteaches are the traditions from which it developed as well as the traditions from which it broke .That tradition is a living thing." (emphasis added)).


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CITIZENSHIP RIGHTS 1947ment and growth to provide national protection against all forms ofinfringement for fundamental human activities and immunities thathave become hallmarks of American citizenship. In the hands of asympathetic Congress, these principles can contribute to a coherentand comprehensive regime of national protection for the rights ofAmerican citizenship.

Documents

Membership Has Its Privileges and Immunities - Congressional Power to Define and Enforce the Rights of National Citizenship