NRPLUS MEMBER ARTICLE T here are many angles to the Supreme Court’s decision in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, which struck down preferences on the basis of race in college admissions. One that has played a surprisingly quiet role is the Constitution.

A serious discussion of the text and history of the 14th Amendment is conspicuously absent from most of the opinions on both sides of the case. Chief Justice John Roberts’s majority opinion and Justice Brett Kavanaugh’s concurrence both focus heavily on the Court’s prior precedents in this area, and reason from those precedents to the conclusion that racial preferences can be neither perpetual nor free of any judicial scrutiny. Justice Neil Gorsuch’s concurring opinion argues that the case could have been decided solely on the more specific language of Title VI of the Civil Rights Act of 1964, which has independent force. Justice Ketanji Brown Jackson’s dissent, by contrast, largely ignores the Constitution, statutes, and precedents in order to argue about the facts and the general condition of the country.

SFFA presented a wrinkle on the usual constitutional case because it involved two different legal regimes. The University of North Carolina, as a state entity, is bound by the 14th Amendment; Harvard, as a private entity, is not. But both are required to follow Title VI. Because the Supreme Court has traditionally ruled that the Title VI standard is the same as the standard under the equal-protection clause of the 14th Amendment, everyone other than Gorsuch simply ignored the language of Title VI and proceeded to analyze the case under the equal-protection clause. Yet they spent little time on the clause itself.

Only Justices Clarence Thomas (in his lone concurrence) and Sonia Sotomayor (in dissent) grappled with what the 14th Amendment was actually understood to mean — and even those justices scarcely addressed what it says. Thomas, characteristically, had a far more rigorous analysis and the better of the argument with Sotomayor. But even his analysis had some curious omissions — at least, curious until you recall the history of the Court’s treatment of Section 1 of the 14th Amendment.

Original Sins

When the parties to a case dispute the original meaning of the Constitution, originalist analysis is supposed to begin with the text in its context, which means looking to history in order to determine what that language meant when it was adopted. Then, courts look to precedent to see how it has been applied and whether there is a collision between precedent and the original understanding. If there is a conflict between precedent and the original meaning, a whole additional round is required to weigh considerations of stare decisis — the value of sticking with what’s already been decided — against the proper understanding of the text.

Thomas generally argues that precedent has no business trumping the Constitution’s actual meaning, but he’s typically been a minority of one in that view. The stare decisis inquiry gets most complicated when whole bodies of law and government have grown up around long-ago precedents, however wrong they may be.

For originalists, the problem with answering almost any question about the 14th Amendment’s main section is that the Court has long left the path of the amendment’s original design. Fixing the structural misreading of the amendment simply won’t happen in a hot-button case where the Court has its hands full dealing with the issue at hand — and yet, those are precisely the cases in which analytical clarity and fidelity are most needed.

Text, in Context

Section 1 of the 14th Amendment, which passed Congress in 1866 and was ratified by the states in 1868, is divided into four clauses:

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. [citizenship clause]

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [privileges-and-immunities clause]

nor shall any State deprive any person of life, liberty, or property, without due process of law; [due-process clause]

nor deny to any person within its jurisdiction the equal protection of the laws. [equal-protection clause]

Two of these clauses (the protection of privileges and immunities and the guarantee of due process) were drawn from earlier constitutional language. The due-process clause applied to the states the terms of the Fifth Amendment, which had previously bound only the federal government. It wasn’t supposed to have a substantive content besides ensuring a fair and equal legal process; treating it as a font of other rights was an innovation of the Dred Scott majority, which was loathed by the drafters of the amendment.

The equal rights of all before the government were supposed to be secured by the privileges-and-immunities clause and the citizenship clause. The Articles of Confederation pledged that “the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States,” which was shortened in Article IV of the 1787 Constitution to “the Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.”

While Founding-era sources treated this mainly as a rule requiring states to afford the same rights to all Americans that they gave their own citizens, an increasingly common view by 1866 — following an influential opinion by George Washington’s nephew, Supreme Court Justice Bushrod Washington — held that it encompassed a broader guarantee of fundamental, traditional rights deeply rooted in American experience, such as the right to travel, to own property, to enter contracts, and to ply a trade. That body of thought properly informs the interpretive backdrop of the 14th Amendment.

The citizenship clause, which aimed to overrule Dred Scott by ensuring citizenship for black Americans in federal as well as state law, was new. Other than the requirement that the president be a “natural-born Citizen,” the Constitution had previously been silent in defining American citizenship, even though clauses such as the original privileges-and-immunities clause had extended rights to “Citizens in the several states.”

The equal-protection clause was the most novel. At the time, its main aim was to ensure that the state was evenhanded in using the law to protect everyone in its borders from private violence — which the southern states were manifestly not doing for black Americans in 1866.

The textual division of labor had some important significance, because the first two clauses are limited to citizens, and were intended to ensure that all American citizens had the same basic rights — those enumerated in the Bill of Rights and those that were rooted in traditional American practice. The due-process and equal-protection clauses, by contrast, extended to all persons within American jurisdiction, and aimed to ensure the citizen and non-citizen alike the fundaments of American law and order rather that the full privileges of citizenship.

Making the Best of the Worst

Unfortunately, the Court went off the rails by the 1880s in how it approached Section 1 of the 14th Amendment, largely writing the crucial privileges-and-immunities clause out of the text. It has compounded its errors in nearly every case in the vast body of 14th Amendment law ever since. The hole where the citizenship clause and the privileges-and-immunities clause once were has been filled by a vast expansion of the equal-protection clause, and by an entirely fabricated theory of substantive due process. So, unless and until it rewrites a century and a half of precedent, the Court today must simply try as best it can to follow the original public meaning of Section 1 as a whole, rather than labor to connect the correct constitutional results to the proper and specific anchor in the text. The great, liberating work of the Republican Congress of the 1860s is now held together by duct tape and twine.

That least-worst approach was on display in last year’s Dobbs decision. The Court could have ruled that there is no constitutional right to abortion in the 14th Amendment’s due-process clause because there is no such thing as “substantive due process” in the first place. Instead, it followed a line of cases interpreting that clause as being bounded by historical traditions — roughly the same test that should be applied under the privileges-and-immunities clause and, by extension, the Ninth Amendment. Thomas, alone among the Justices, has argued for restoring the 14th Amendment to its original glory and analytical clarity.

Three Hard Questions

There are three major questions about whether the original meaning of Section 1 is consistent with the Court’s anti-discrimination education cases since Brown v. Board of Education and its racial preference cases since Regents of the Univ. of Calif. v. Bakke. First, did the 14th Amendment apply only to the states, or also to the federal government? Second, was the 14th Amendment really intended to apply at all to school admissions? Third, did the government act in 1866 as if it thought the law must be “color-blind?” The first two questions, while not directly relevant in SFFA, shaped how the original sources were addressed. The third is where the action was. But all three are made artificially difficult by pretending that the due-process and equal-protection clauses were intended to be the weight-bearing beams of Section 1.

Federal discrimination: SFFA involved lawsuits against a state university and a private university, so the question of whether the 14th Amendment is binding on the federal government was not before it. That being said, the 1860s examples debated between Thomas and Sotomayor involved federal actions that Sotomayor contended to be race-based. It is thus worth asking if that matters.

The privileges-and-immunities, due-process, and equal-protection clauses explicitly bound only a “State.” The Supreme Court, in Bolling v. Sharpe (1954), a companion case to Brown that ordered the D.C. schools to be desegregated, used the due-process clause of the Fifth Amendment to reverse-apply the equal-protection clause to the federal government. This was, as I have previously detailed, analytical nonsense, however much we might favor the outcome. If Bolling is defensible by reference to anything other than stare decisis and the lack of an appetite by anyone today to challenge it, its rule must derive instead from the citizenship clause, and from the notion that the guarantee of American citizenship newly minted in 1866 incorporated Article IV’s protection of “all privileges and immunities of Citizens in the several states,” which by its terms does not distinguish between the duties of the federal and state governments in respecting those privileges and immunities.

Certainly, there were those who believed this at the time. Scholars such as Randy Barnett and Evan Bernick, in their book The Original Meaning of the 14th Amendment (cited by Thomas in his opinion), have delved deeply into the background and adoption of the 14th Amendment to make the case that it was intended and understood to create a vibrant protection for national citizenship and the rights that inhered in such citizenship, whether those rights were textually explicit in the Bill of Rights or deeply rooted in American tradition and practice.

Justice John Marshall Harlan thought so. Harlan was Attorney General of Kentucky when the state debated and rejected the 14th Amendment in early 1867. At the time, he was on the other side of the framers of the Reconstruction amendments, having vocally opposed the 13th Amendment and issued legal opinions questioning the constitutionality of the Civil Rights Act of 1866. He knew well what the 14th Amendment proposed to do, which made him an all the more able exponent when he came around to become its most eloquent defender.

A month before Harlan’s famous Plessy v. Ferguson dissent in 1896, Harlan wrote the Court’s unanimous opinion in Gibson v. Mississippi. Gibson asserted “the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race. All citizens are equal before the law.” (Emphasis added). Harlan was perhaps able to get away with that flourish because the case solely involved a state government. In Plessy, Harlan elaborated a more expansive version of this theory of color-blind citizenship:

I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States. . . .

In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. [Emphasis added.]

The 14th Amendment, Harlan concluded, “gave citizenship to all born or naturalized in the United States and residing here, [and] obliterated the race line from our systems of governments, National and State.” (Emphasis added.)

As Thomas and a number of originalist scholars have noted, Harlan never said in Plessy that he was talking about the equal-protection clause, and his repeated references to citizenship rights equally binding on the federal government shows that his view of a color-blind Constitution was derived more from the guarantee of citizenship (and the privileges and immunities that inhered in citizenship) than from pledges of equal protection.

Thomas, in SFFA, reiterated this approach: “The addition of a citizenship guarantee . . . evidenced an intent to broaden the provision, extending beyond recently freed blacks and incorporating a more general view of equality for all Americans.” Moreover, he noted that, in the public debates, “the drafters and ratifiers of the 14th Amendment focused on this broad equality idea, offering surprisingly little explanation of which term was intended to accomplish which part of the Amendment’s overall goal.” Accordingly, throughout his opinion, he discussed the color-blind approach of Section 1 as a whole, rather than narrowly confining his discussion to the equal-protection clause.

Protection of the Laws: The second hard question, in most cases, derives from the phrase “equal protection of the laws.” That issue also didn’t come up in SFFA because Title VI explicitly applies the 14th Amendment’s substantive standards to college admissions. It is also a question that is potentially moot if you take the view that the 14th Amendment’s colorblindness principle derives from something with broader application than “equal protection of the laws.” Harlan in Plessy did not engage with the question of which government acts must be color-blind, and this follows from his apparent view that equal citizenship “obliterated the race line” in every area of law. Thomas took the same approach, and even Sotomayor did not press him on it.

Color-blindness: The central originalist argument litigated in SFFA was whether, once the 14th Amendment’s standards are applied, those standards require a color-blind rule of law, or whether the government may take race-conscious measures to remedy racial disparities traceable in some general way to historic discrimination.

Thomas noted that the evidence we have suggests that the framers of the 14th Amendment intended to make the Constitution color-blind, rather than creating a helping hand for black Americans that no other American could invoke on equal terms. To pick one example, Thomas cited the Pennsylvania ratification debate, in which it was contended “that the 14th Amendment was understood to make the law ‘what justice is represented to be, blind’ to the ‘color of [one’s] skin.’” Among other things, this explains the shift in language from the Civil Rights Act of 1866, which sought to guarantee black Americans the same rights as white Americans. When drafting something to go in the Constitution for all times, they dropped the specific racial language and wrote for the ages, in terms that could benefit any American of any color.

The problem for defenders of racial preferences, given the breadth of statements by the 14th Amendment’s framers that they intended to mandate equality before the law, is locating any evidence that they actually meant to allow the government to maintain effectively permanent racial categories. The closest Sotomayor could muster was the federal acts that created the Freedmen’s Bureau in 1865 and 1866. She notes that the Bureau created schools and colleges for black Americans — but, of course, white Americans already had schools. This is quite different from demanding that black students displace students of every other background.

Lacking any evidence that the Bureau drew legal distinctions that advantaged people of one race over people of another, Sotomayor lamely offered that “contemporaries understood that the Freedmen’s Bureau Act benefited Black people.” So did the 13th Amendment. But it abolished slavery for all.

Thomas rejoined that “the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because not all blacks in the United States were former slaves, ‘freedman’ was a decidedly under-inclusive proxy for race. . . . Moreover, the Freedmen’s Bureau served newly freed slaves alongside white refugees.” Charlie Cooke has delved more deeply into the evidence on this particular point, and notes how Sotomayor’s claim conflicts with the statutory language actually used by Congress in 1865 and 1866:

There is no mention of race in the Freedmen’s Bureau Act of 1865. . . . Unlike the first, the second Freedmen’s Bureau Act does mention “race” and “color,” but only in the passages that reiterate Congress’s opposition to discrimination. When the law’s benefits are being outlined, the references are all to “freedmen” and “refugees” and their families.

Critics such as Adam Serwer of the Atlantic respond with incredulity at the notion that Congress might have aimed to aid the freedmen in terms that only vaguely recognize race, given that everybody knew that all freed slaves were black, and most black Americans were freed slaves:

“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not.

Serwer seems to think that Congress was writing in racial code, but the people who wrote it were painfully aware of the pernicious nature of writing racial distinctions into law — the laws of the South in the 1860s were not shy about this — and they chose not to do so for very considered reasons. Still less did they do what Serwer would like, which is deliver benefits on the basis of race without any showing that the individual needs the government’s help. Quite the opposite.

The Freedmen’s Bureau was aimed at a colossal humanitarian crisis following a four-year civil war, the abrupt mass liberation of four million slaves, and the destruction of most of the economy of the region in which they lived. Of course, Congress knew the beneficiaries would mostly be black, because in the world of 1866, that’s who the freed slaves were. As of the 1860 Census, slaves constituted 89.2 percent of black Americans, 96.4 percent in the states that seceded in 1861 to form the Confederacy, and 96 percent in the contested border states of Missouri and Kentucky. The central focus of the relief effort was on aiding people directly and immediately burdened by enslavement and war, not simply on treating race as a proxy for need. Nobody expected the Freedmen’s Bureau to aid the small stratum of free and relatively comfortable black Americans such as Frederick Douglass who lived far outside the war zone. Nor was it designed as a permanent program: It was largely defunded by 1868 (due in large part to Southern recalcitrance), and abolished in 1872.

If Serwer means to argue that the 14th Amendment permits the government to dole out need-based aid on formally race-neutral grounds that in practice are likely to mainly benefit one racial group, he is correct — although that puts him at odds with the “disparate impact” theories that liberals engrafted on much of modern antidiscrimination law. But even then, race itself is not a need. Treating it as one would have offended the ideals of the men who wrote and ratified the 14th Amendment.