Natural Law, Article IV, and Section One of the Fourteenth Amendment
Douglas G. Smith
Kirkland & Ellis LLP; Loyola University Chicago School of Law; American Enterprise Institute (AEI)
American University Law Review, Vol. 47, No. 2, p. 351, December 1997
This article examines the natural law background of Section One of the Fourteenth Amendment. The article starts by examining the natural law foundations of the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution, which served as a precursor for Section One. The article presents an analysis of the principles of natural law and the law of nations that informed the clause. The article next discusses the role of the Guarantee Clause of Article IV, Section 2 in providing substantive protection for the privileges and immunities of citizens. The clauses together guaranteed that certain common-law rights would be uniformly available throughout the country. Finally, the article discusses Section One of the Fourteenth Amendment in light of the conclusions reached regarding Article IV. The analysis shows that the provisions in Section One of the Fourteenth Amendment flow from a rich legal tradition and that the provision was intended to guarantee a core set of rights thought to be inherent in citizenship. The best interpreation of the Amendment is that it was designed to afford not only anti-discrimination, but also substantive protection for these rights. However, state legislatures remained free to regulate the mode or manner in which these rights were exercised.
Number of Pages in PDF File: 70
Keywords: Fourteenth amendment, privileges and immunities, article IV, guarantee clause, natural law, privileges or immunities, citizenship, constitutionAccepted Paper Series
Date posted: August 6, 2005
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