"I Am Free But Without A Cent": Economic Justice As Equal Citizenship

Abstract

The Fourteenth Amendment is one of the most-studied parts of the Constitution, but one of its central concerns has been long ignored by courts and scholars: economic justice. As this Article demonstrates, the Fourteenth Amendment’s goal of redressing slavery’s bitter legacy required sweeping new guarantees aimed at protecting the most exploited Americans—those who had been held in bondage, denied the fruits of their toil, physically violated, and consigned to crippling poverty and degradation. The rights of the poor and powerless to enjoy fundamental freedoms and meaningful equality thus lie at the very core of the Fourteenth Amendment’s text and history. This aspect of the Fourteenth Amendment has never gotten its due.

The Fourteenth Amendment embodies three fundamental ideals—citizenship, rights, and protection—that protect the poorest of Americans. First, the Fourteenth Amendment promises equal citizenship to all regardless of race and class. The Amendment fundamentally altered our national charter to protect the equal citizenship stature of the poorest and most marginalized of Americans. Second, the Fourteenth Amendment, along with the Thirteenth Amendment, guarantees a number of economic rights, including the right to the fruit of one’s toil, the right to contract, and the right to property, to limit economic domination. These economic rights were viewed as crucial to protecting Americans from economic exploitation, and they limited both governmental and private action. Third, the Fourteenth Amendment wrote the constitutional duty of protection into our national charter, imposing on states an affirmative constitutional obligation to protect their people. Under the Fourteenth Amendment, that protection must be equal for all persons, rich and poor alike.

The Supreme Court has failed to give these fundamental promises their due, producing a jurisprudence that turns a blind eye to the rights of poor people and reads the constitutional promise of economic justice out of our national charter. Recovering the true meaning of the Thirteenth and Fourteenth Amendments, as reflected in their text and history, would open the door to meaningful doctrinal changes that would help protect the rights of poor people and advance the effort to redress economic inequality.

Keywords: Fourteenth Amendment, Thirteenth Amendment, Civil Rights Act of 1866, Freedmen's Bureau Act, Second Founding, Equal Citizenship, Poverty, Economic Rights, Right to Education, Welfare Rights, Equal Protection, Rights of Poor People, Constitutional Duty of Protection, Positive Rights