Seven Problems with Antidiscrimination Due Process

Abstract

I explain seven problems with the view, suggested by Akhil Amar, Kurt Lash, and Ryan Williams, that the Fifth and Fourteenth Amendments’ ban on “depriv[ing] any person of life, liberty, or property without due process of law” entails freedom from the sort of racial discrimination banned by Bolling v. Sharpe and the Civil Rights Acts of 1866, 1870, and 1875:

1. The federal government long imposed racial restrictions on naturalization, beginning in 1790 and including a statute passed two weeks before the Civil Rights Act of 1875.

2. Six of the seven states that Williams identifies as following the Daniel-Webster-pioneered “general law” interpretation of due process imposed openly second-class status on racial grounds without thinking due process might pose any barrier.

3. Democrats fans of due process in 1862 and 1866, most prominently Reverdy Johnson, nonetheless opposed the Civil Rights Act of 1866. They did not think John Bingham’s unusual reading of “law” was baked into the Fourteenth Amendment.

4. Superlawyer Matthew Carpenter made clear that the Privileges or Immunities Clause, and no other clause in the Fourteenth Amendment, banned racial occupational limits.

5. The Republican-beloved Northwest Ordinance, Missouri Compromise, and Wilmot Proviso all labeled racially-discriminatory slavery, and fugitive re-enslavement, “lawful.”

6. “Law” in the Privileges or Immunities Clause covers racially-discriminatory statutes.

7. Many paradigmatic targets of anti-discrimination rules, e.g., special benefits to one racial group, deprive no one of life, liberty, or property.

Keywords: Fourteenth Amendment, Fifth Amendment, Substantive Due Process, Due Process of Law, Privileges or Immunities Clause, Alienage, Citizenship, Bradwell v. Illinois, Matthew Carpenter, Reverdy Johnson, Daniel Webster, John Bingham, Thomas Cooley