General Law and the Fourteenth Amendment

66 Pages Posted: 14 Nov 2023

See all articles by William Baude

William Baude

University of Chicago - Law School

Jud Campbell

Stanford Law School

Stephen E. Sachs

Harvard Law School

Date Written: October 17, 2023

Abstract

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.

This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.

To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

Keywords: Fourteenth Amendment, Privileges or Immunities, general law, fundamental rights, Erie, citizenship, constitutional law

JEL Classification: K1, K10, K19, K3, K30, K39

Suggested Citation

Baude, William and Campbell, Wesley and Sachs, Stephen E., General Law and the Fourteenth Amendment (October 17, 2023). Stanford Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4604902

William Baude

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Wesley Campbell

Stanford Law School ( email )

Constitutional Law Center
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Stephen E. Sachs (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-5009 (Phone)

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11417/Sachs

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