Article

Second-Order Decisions in Rights Conflicts

Introduction

How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not provide judges with guidance in some range of cases.1 1.See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994).Show More The law is said to “run out” or to be incomplete.2 2.Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”).Show More In such cases, legal sources—constitutions, statutes, executive orders, agency regulations, and so on—do not provide reasons that determine the legal question at issue. When the law runs out in this way, judges have no choice but to exercise discretion. They cannot reason within the limits of the law. They must reach beyond it by relying on policy considerations or judgments drawn from political morality. How often this happens is a matter of dispute among legal positivists and theorists who take a more critical stance toward the law.3 3.See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases).Show More But whether the law runs out only in some cases, or, more radically, in all of them, judges will face the question of how to adjudicate conflicts when they lack sufficient legal reasons.

The traditional competitor to both positivist and critical legal theories has been an anti-positivist view that rejects the possibility of judicial discretion in hard cases. Most famously, Ronald Dworkin defended a single-right-answer thesis, according to which every conflict of rights has a unique or determinate outcome.4 4.See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978).Show More That is because, on his view, the law never (or almost never) runs out. At least in complex and well-developed legal systems, there are always legal sources, as well as moral values and principles embedded within the law, that provide judges with reasons to favor one outcome over another.5 5.See Dworkin, Taking Rights Seriously, supra note 4, at 286.Show More Judges never have to reach beyond the law to adjudicate rights conflicts. The law, in this view, is a complete system. It will contain sufficient reasons for making legal decisions, and the job of judges, however difficult, is to discern them.

Attempting to sidestep this long-standing debate over whether—or to what extent—there are hard cases, some legal scholars have recently taken up the question of how to decide such cases if, or when, they do indeed exist. In a leading account offered by Charles Barzun and Michael Gilbert, when ordinary considerations of law and justice leave judges uncertain about how to adjudicate rights disputes, those judges should adopt a second-order decision-making procedure to determine the outcome.6 6.On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing].Show More More specifically, and by analogy to the idea of “least cost avoidance” familiar from the economic analysis of private law,7 7.See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”).Show More they argue for a conflict-avoidance principle, which holds that “courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place.”8 8.Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted).Show More The promise of this principle is that, by following it, judges would resolve hard cases in a way that encourages the parties to avoid rights conflicts. If successful, this decision-making strategy would, in turn, reduce the incidence of hard cases. Judges would face fewer conflicts in which they are uncertain about how to apply the relevant first-order considerations of law and political morality.

The conflict-avoidance approach to adjudicating hard cases is both novel and ingenious. To our knowledge, and perhaps surprisingly, no one has previously proposed resolving legal indeterminacies by aiming to reduce cases that produce such indeterminacies. Of course, others have argued that their theories of adjudication would ameliorate trenchant political, social, and cultural controversies, including those involving constitutional rights.9 9.See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality).Show More But Barzun and Gilbert’s proposal is distinctive in that it only applies in hard cases. Theirs is a “meta-principle”10 10.Barzun & Gilbert, supra note 8, at 7 n.18.Show More of adjudication, rather than a general approach applicable to all cases involving rights conflicts. In conflict avoidance, hard cases are resolved recursively for the purpose of preventing more hard cases.11 11.In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views.Show More

Despite its originality and prima facie appeal, we argue that there are several reasons to avoid adoption of the conflict-avoidance principle. The argument for that principle draws on an analogy to accidents in tort law. Both accidents and hard cases involve significant costs. Just as car accidents lead to physical injuries—as well as to the administrative costs of insurance, adjudication, and compensation—hard cases produce costs for the parties to litigation and for the courts that decide them. But this analogy is one-sided and potentially misleading. Whereas accidents only produce costs, hard cases may generate important epistemic and moral benefits by serving as vehicles for deliberation, social contestation, and political or legal reform. Thinking of hard cases as if they were accidents also contributes to a pessimistic conception of rights adjudication, one with a neoliberal or libertarian tilt that favors private ordering over public and democratic decision-making.

The case for conflict avoidance is also incomplete. Courts faced with hard cases have available to them a variety of second-order decision procedures, including deference to other (or future) decision-makers, defaults favoring political values of liberty or equality, interest balancing (including theories of proportionality review and harm avoidance), and the use of lotteries or other chance devices. Selecting among these second-order strategies requires justification. If judges adopt conflict avoidance, they must have reasons to reject the others. Surveying alternatives can help clarify the values that support cost-avoidance as well as those that recommend against it.

Second-order decision-making strategies may have an important place in deciding hard cases. But in adopting them, we urge caution. The use of hypothetical examples as toy cases—to demonstrate how a theory works, rather than to recommend a particular application—may suggest that hard cases are far more prevalent in the legal system than in fact they are. Many cases that are described as “hard” may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness, such as indeterminacy or radical uncertainty about what the law or justice requires. And in those cases, judges may be able to proceed based on first-order reasons, without having to ascend to second-order theories of adjudication. Indeed, facing the prospect of applying second-order procedures may lead judges to conclude that law and morality do, after all, provide the right answers.

  1.  See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994). ↑
  2.  Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”). ↑
  3.  See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases). ↑
  4.  See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978). ↑
  5.  See Dworkin, Taking Rights Seriously, supra note 4, at 286. ↑
  6.  On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing]. ↑
  7.  See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”). ↑
  8.  Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted). ↑
  9.  See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality). ↑
  10.  Barzun & Gilbert, supra note 8, at 7 n.18. ↑

  11.  In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views. ↑

The New Major Questions Doctrine

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October term 2021, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three new indicia of majorness to determine whether an agency policy is major: the political significance of or political controversy surrounding the policy; the novelty of the policy; and the possibility that other, supposedly even more controversial agency policies might be supported by the agency’s broader statutory rationale.

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate. Unpacking the new major questions doctrine also provides a way to interrogate and evaluate the doctrine and to assess how it relates to, and enforces, previously understood institutional and political pathologies. In particular, this Article argues that the new major questions doctrine allows the presence of present-day political controversy surrounding a policy to alter otherwise broad regulatory statutes outside of the formal legislative process. It supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. What’s more, it invites politically infused judgments by the federal courts, further eroding democratic control of policy. And it operates as a powerful de-regulatory tool that limits or substantially nullifies congressional delegations to agencies in the circumstances where delegations are more likely to be used—and more likely to be effective—even as the Court claims it is simply doing statutory interpretation.

Introduction

Stymieing agency efforts to address issues from climate change to the COVID-19 pandemic,1 1.See West Virginia v. EPA, 142 S. Ct. 2587 (2022) (invoking major questions doctrine to invalidate EPA regulation designed to curb emissions from greenhouse gasses); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) [hereinafter NFIB v. OSHA] (invoking major questions doctrine to invalidate Occupational Safety and Health Administration (“OSHA”) regulation designed to address COVID-19).Show More the major questions doctrine has emerged as a powerful weapon wielded against the administrative state.2 2.See, e.g., Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 994 (2022) (“The legal fictions underlying the major questions doctrine (specifically, the ‘major questions doctrine as Chevron step zero test’) and Chief Justice Roberts’ jurisdictional exception are poised to become the Court’s new nondelegation tests.”); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the Court’s earlier major questions cases diverted power to courts and away from administrative agencies).Show More The doctrine’s roots extend as far back as 2000 and arguably before.3 3.See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 787 (2017) (“Though it had precursors, the majorness inquiry first crystallized in FDA v. Brown & Williamson Tobacco Corp.”).Show More But its shape has morphed significantly over time.4 4.See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 481–83 (2021) [hereinafter Sunstein, Two “Major Questions” Doctrines] (arguing that the Court has deployed two different formulations of the doctrine).Show More Most recently, the Supreme Court’s October term 2021 saw the doctrine become stronger, more powerful. At the same time, the Court more fully articulated its vision of when the doctrine applies. And at least one thing has become crystal clear: the major questions doctrine has become an important—perhaps the most important—constraint on agency power, particularly when it comes to some of the most pressing problems of our time.

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. The major questions doctrine originally operated within the familiar Chevron framework.5 5.See Coenen & Davis, supra note 3, at 788–91 (describing doctrinal origins and operation). On Chevron, see infra notes 45–67 and accompanying text.Show More When an agency promulgated a policy that was dramatic or unexpected, the broader context of the statute, consulted in conjunction with common sense, might indicate that the statute unambiguously foreclosed that policy.6 6.See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 160 (2000) (rejecting the FDA’s attempt to regulate cigarettes in part because of the vast economic impacts of the tobacco industry and the “cryptic” statutory provision at issue). In a slightly different form, the doctrine operated to inform the courts’ analysis of whether the agency’s interpretation was a reasonable one. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).Show More In such form, the major questions doctrine (a phrase the Court did not use until last term) was simply one tool of statutory interpretation, sitting alongside others in the tool kit such as ordinary meaning and the semantic canons.

But it has become something quite different. First, in King v. Burwell, the Court used the doctrine as a reason why courts should determine the meaning of statutory language without any deference to the agency’s views.7 7.576 U.S. 473, 485–86 (2015).Show More And now, after the October term 2021, the “new” major questions doctrine operates as a clear statement rule.8 8.See West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring) (describing the Court’s articulation of the major questions doctrine as a clear statement rule); id. at 2641 (Kagan, J., dissenting) (describing the major questions doctrine as a “get-out-of-text-free card[]”).Show More It directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but instead to require explicit and specific congressional authorization for certain agency policies.9 9.See id. at 2633–34, 2641 (Kagan, J., dissenting).Show More Even broadly worded, otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three indicia of majorness, in addition to the costs imposed by the agency policy, to determine whether an agency rule is major. First, the Court has indicated that politically significant or controversial policies are more likely to be major and thus require clear authorization.10 10.See NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)); West Virginia v. EPA, 142 S. Ct. at 2620 (Gorsuch, J., concurring) (explaining that an issue may be major where “certain States were considering” the issue or “when Congress and state legislatures were engaged in robust debates”); id. at 2614 (majority opinion).Show More Second, the Court has signaled that the novelty of a policy—i.e., the fact that the agency had never promulgated a similar policy before—is a reason to think that the policy is a major one.11 11.See West Virginia v. EPA, 142 S. Ct. at 2595–96 (invoking novelty of the regulation as an indicium of majorness); NFIB v. OSHA, 142 S. Ct. at 666 (“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))).Show More Finally, the Court has considered the majorness of other, theoretically possible agency policies not actually before the Court but that might be supported by the agency’s broader rationale in determining whether the agency’s current claim of interpretive authority is major.12 12.See Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (using implications of agency’s theory of authority as indicia of majorness).Show More (Although we describe these developments in the doctrine at the Court, it is the Republican appointees on the Court who are in the majority in the relevant cases.)

This new major questions doctrine was most clearly on display in the Supreme Court’s end-of-term blockbuster decision in West Virginia v. EPA.13 13.142 S. Ct. at 2595.Show More There, the Court invoked the major questions doctrine to invalidate an EPA regulation requiring coal-fired power plants to adopt so-called “generation shifting” methods in order to shift production to cleaner sources of electricity.14 14.See id.; see also Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64728 (Oct. 23, 2015).Show More The case was the first time the Court actually used the phrase “major questions doctrine,” and it represents the full emergence of the doctrine as a clear-statement rule.15 15.West Virginia v. EPA, 142 S. Ct. at 2634 (Kagan, J., dissenting). Justice Gorsuch labeled the doctrine as a clear statement rule in his concurrence. See id. at 2622 (Gorsuch, J., concurring).Show More The consequence is that “major” agency policies now require “clear congressional authorization”—even broadly worded, otherwise unambiguous statutes may not do.16 16.See id. at 2609 (majority opinion) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).Show More

West Virginia v. EPA also displayed the Court’s new indicia of majorness—the criteria used to assess whether the doctrine applies. The Court made clear that the “political significance” of a rule is evidence of majorness,17 17.Id. at 2595 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)).Show More pointing to political disagreement over whether to adopt generation shifting programs.18 18.Id. at 2614 (“‘The importance of the issue,’ along with the fact that the same basic scheme EPA adopted ‘has been the subject of an earnest and profound debate across the country, . . . makes the oblique form of the claimed delegation all the more suspect.’” (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006))).Show More The concurrence, which agreed with the Court’s application of the major questions doctrine, underscored that the agency’s rule was major because “certain States were considering” the issue and “Congress and state legislatures were engaged in robust debates.”19 19.Id. at 2620 (Gorsuch, J., concurring).Show More The Court also invoked the novelty of the agency’s regulatory approach in finding it to be a major one,20 20.See id. at 2596 (majority opinion).Show More and it considered the possible future implications of the agency’s theory of its statutory authority.21 21.See id. at 2612 (“[T]his argument does not so much limit the breadth of the Government’s claimed authority as reveal it.” (emphasis omitted)).Show More These trends continued in the October term 2022.22 22.See Biden v. Nebraska, 143 S. Ct. 2355 (2023).Show More

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate.23 23.See, e.g., Heinzerling, supra note 2, at 1938–90 (describing uncertainty in the major questions doctrine); Gocke, supra note 2, at 1002 (describing the major questions doctrine as “illusory”); Coenen & Davis, supra note 3, at 809–10 (describing lack of clarity in the major questions doctrine); Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445, 448 (2016) (“More is unclear than clear about the bounds of the major questions doctrine at this stage.”); Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010) (describing a related interpretive principle as applied “haphazardly”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 217, 218 (2022) (“What constitutes a major question is as unclear today as it was when Justice Breyer wrote those words in 1986.”); Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 195 (2022) (“The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary.”).Show More Unpacking the new major questions doctrine also allows us to normatively evaluate the doctrine on its own terms and to assess how it relates to, and enforces, previously understood institutional and political pathologies. And we will suggest that, judged in this manner, the doctrine does quite poorly.

This Article makes three principal contributions. The first is descriptive and synthetic: the Article offers the first account of how the new major questions doctrine operates in light of the Supreme Court’s decisions from October term 2021, showing how it has emerged as a clear-statement rule and cataloguing the new indicia of majorness.

The Article’s second contribution is analytic: identifying how the Court assesses majorness makes it easier to evaluate the new major questions doctrine and to critically assess its potential consequences. Specifically, we suggest that the Court’s new approach may allow present-day political controversy surrounding a policy to restrict authority that agencies would otherwise have under broadly worded statutes. This permits political parties and political movements more broadly—and whether as part of a conscious strategy or not—to effectively amend otherwise broad regulatory statutes by generating controversy surrounding an agency policy. This dynamic undermines the purported purpose of the doctrine, which is to channel policy disputes into legislatures.

The third contribution is more straightforwardly normative: unpacking the new major questions doctrine identifies how the doctrine reinforces previously identified pathologies of the American constitutional system and undermines public policy by hobbling delegations when they are most likely to be effective. We argue that the doctrine supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. It provides an additional mechanism for courts to exercise what is essentially political oversight of statutes—inviting judges to opine on what policies are sufficiently controversial and thus require special authorization, an inquiry that may often depend on the judges’ own deeply held politics.24 24.Cf. Coenen & Davis, supra note 3, at 831 (arguing that lower courts’ application of the version of the major questions doctrine articulated in King v. Burwell raised “concerns about major political dysfunction and institutional breakdowns”).Show More And it operates to kneecap delegations to agencies in precisely the circumstances in which Congress may have had particular reason to delegate broad authority to agencies, all while supposedly simply doing statutory interpretation.

Now is an especially important time to unpack and assess the major questions doctrine. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade,25 25.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).Show More the federal government is reportedly considering and undertaking some administrative responses to secure access to abortion, particularly medication abortion.26 26.See Shira Stein, Fiona Rutherford & Celine Castronuovo, White House Touts Abortion Pill as Answer to Roe Reversal but FDA Rules Limit Use, Bloomberg (June 30, 2022, 11:57 AM), https://www.bloomberg.com/news/articles/2022-06-30/white-house-touts-abortion-pill‌-as-answer-to-roe-reversal-but-fda-rules-limit-use [https://perma.cc/DWZ3-K25Z]; Dan Diamond & Rachel Roubein, Biden Official Vows Action on Abortion Following ‘Despicable’ Ruling, Wash. Post (June 28, 2022, 1:28 PM), https://www.washingtonpost.com/‌health/2022/06/28/abortion-access-becerra/ [https://perma.cc/4UKJ-GXJ9].Show More Possible responses include regulatory action by the FDA27 27.See U.S. Food & Drug Admin., Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information [https://perma.‌cc/G7Q4-VNU7] (last visited Jan. 24, 2023); U.S. Food & Drug Admin., Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200MG (2019), https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2021_05_14_REMS_Full.pdf [https://perma.cc/ULJ3-ZUET].Show More and declarations of public health emergencies under the Public Readiness and Emergency Preparedness Act.28 28.42 U.S.C. §§ 247d, 247d-6d(b)(1).Show More Both responses rely on statutory delegations to agencies.29 29.U.S. Gov’t Accountability Off., GAO-08-751, Approval and Oversight of the Drug Mifeprex 2 (2008), https://www.gao.gov/assets/ 280/279424.pdf [https://perma.cc/J63V-C6CY]; Memorandum from Ctr. for Drug Evaluation & Rsch. to Sandra P. Arnold, Vice President, Corp. Affs., Population Council, 1 (Sept. 28, 2000), https://www.accessdata.‌fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf [https://perma.cc/36XJ-FFZA]; 21 U.S.C. § 355-1(a)(1), (f)(2); id. § 355(b)(1), (d); 42 U.S.C. § 247d-6d(b).Show More These agency responses may be evaluated under the major questions doctrine, making it important to understand what the doctrine is and how it might be applied.30 30.Original Complaint at 12, Texas v. Becerra, No. 22-cv-00185, 2022 WL 18034483 (N.D. Tex. Nov. 15, 2022), ECF No. 1 (challenging Department of Health and Human Services Secretary Becerra’s post-Dobbs guidance on major questions grounds).Show More

The Article proceeds in four Parts. Part I provides a brief overview of different judicial constraints on administrative agencies’ authority to interpret and implement federal statutes. Part II provides a synthesis of the new major questions doctrine, focusing on three recent cases, two from the Supreme Court’s most recent term and the third from August 2021. Part III then critically evaluates the new major questions doctrine. We conclude by arguing the new major questions doctrine erodes the bases for several recently offered justifications for the exercise of agency power—and, perhaps from the standpoint of the doctrine’s defenders, maybe that’s the whole point.

  1.  See West Virginia v. EPA, 142 S. Ct. 2587 (2022) (invoking major questions doctrine to invalidate EPA regulation designed to curb emissions from greenhouse gasses); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) [hereinafter NFIB v. OSHA] (invoking major questions doctrine to invalidate Occupational Safety and Health Administration (“OSHA”) regulation designed to address COVID-19). ↑
  2.  See, e.g., Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 994 (2022) (“The legal fictions underlying the major questions doctrine (specifically, the ‘major questions doctrine as Chevron step zero test’) and Chief Justice Roberts’ jurisdictional exception are poised to become the Court’s new nondelegation tests.”); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the Court’s earlier major questions cases diverted power to courts and away from administrative agencies). ↑
  3.  See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 787 (2017) (“Though it had precursors, the majorness inquiry first crystallized in FDA v. Brown & Williamson Tobacco Corp.”). ↑
  4.  See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 481–83 (2021) [hereinafter Sunstein, Two “Major Questions” Doctrines] (arguing that the Court has deployed two different formulations of the doctrine). ↑
  5.  See Coenen & Davis, supra note 3, at 788–91 (describing doctrinal origins and operation). On Chevron, see infra notes 45–67 and accompanying text. ↑
  6.  See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 160 (2000) (rejecting the FDA’s attempt to regulate cigarettes in part because of the vast economic impacts of the tobacco industry and the “cryptic” statutory provision at issue). In a slightly different form, the doctrine operated to inform the courts’ analysis of whether the agency’s interpretation was a reasonable one. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014). ↑
  7.  576 U.S. 473, 485–86 (2015). ↑
  8.  See West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring) (describing the Court’s articulation of the major questions doctrine as a clear statement rule); id. at 2641 (Kagan, J., dissenting) (describing the major questions doctrine as a “get-out-of-text-free card[]”). ↑
  9.  See id. at 2633–34, 2641 (Kagan, J., dissenting). ↑
  10.  See NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)); West Virginia v. EPA, 142 S. Ct. at 2620 (Gorsuch, J., concurring) (explaining that an issue may be major where “certain States were considering” the issue or “when Congress and state legislatures were engaged in robust debates”); id. at 2614 (majority opinion). ↑
  11.  See West Virginia v. EPA, 142 S. Ct. at 2595–96 (invoking novelty of the regulation as an indicium of majorness); NFIB v. OSHA, 142 S. Ct. at 666 (“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))). ↑
  12.  See Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (using implications of agency’s theory of authority as indicia of majorness). ↑
  13.  142 S. Ct. at 2595. ↑
  14.  See id.; see also Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64728 (Oct. 23, 2015). ↑
  15.  West Virginia v. EPA, 142 S. Ct. at 2634 (Kagan, J., dissenting). Justice Gorsuch labeled the doctrine as a clear statement rule in his concurrence. See id. at 2622 (Gorsuch, J., concurring). ↑
  16.  See id. at 2609 (majority opinion) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). ↑
  17.  Id. at 2595 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)). ↑
  18.  Id. at 2614 (“‘The importance of the issue,’ along with the fact that the same basic scheme EPA adopted ‘has been the subject of an earnest and profound debate across the country, . . . makes the oblique form of the claimed delegation all the more suspect.’” (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006))). ↑
  19.  Id. at 2620 (Gorsuch, J., concurring). ↑
  20.  See id. at 2596 (majority opinion). ↑
  21.  See id. at 2612 (“[T]his argument does not so much limit the breadth of the Government’s claimed authority as reveal it.” (emphasis omitted)). ↑
  22.  See Biden v. Nebraska, 143 S. Ct. 2355 (2023). ↑
  23.  See, e.g., Heinzerling, supra note 2, at 1938–90 (describing uncertainty in the major questions doctrine); Gocke, supra note 2, at 1002 (describing the major questions doctrine as “illusory”); Coenen & Davis, supra note 3, at 809–10 (describing lack of clarity in the major questions doctrine); Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445, 448 (2016) (“More is unclear than clear about the bounds of the major questions doctrine at this stage.”); Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010) (describing a related interpretive principle as applied “haphazardly”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 217, 218 (2022) (“What constitutes a major question is as unclear today as it was when Justice Breyer wrote those words in 1986.”); Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 195 (2022) (“The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary.”). ↑
  24.  Cf. Coenen & Davis, supra note 3, at 831 (arguing that lower courts’ application of the version of the major questions doctrine articulated in King v. Burwell raised “concerns about major political dysfunction and institutional breakdowns”). ↑
  25.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)). ↑
  26.  See Shira Stein, Fiona Rutherford & Celine Castronuovo, White House Touts Abortion Pill as Answer to Roe Reversal but FDA Rules Limit Use, Bloomberg (June 30, 2022, 11:57 AM), https://www.bloomberg.com/news/articles/2022-06-30/white-house-touts-abortion-pill‌-as-answer-to-roe-reversal-but-fda-rules-limit-use [https://perma.cc/DWZ3-K25Z]; Dan Diamond & Rachel Roubein, Biden Official Vows Action on Abortion Following ‘Despicable’ Ruling, Wash. Post (June 28, 2022, 1:28 PM), https://www.washingtonpost.com/‌health/2022/06/28/abortion-access-becerra/ [https://perma.cc/4UKJ-GXJ9]. ↑
  27.  See U.S. Food & Drug Admin., Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information [https://perma.‌cc/G7Q4-VNU7] (last visited Jan. 24, 2023); U.S. Food & Drug Admin., Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200MG (2019), https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2021_05_14_REMS_Full.pdf [https://perma.cc/ULJ3-ZUET]. ↑
  28.  42 U.S.C. §§ 247d, 247d-6d(b)(1). ↑
  29.  U.S. Gov’t Accountability Off., GAO-08-751, Approval and Oversight of the Drug Mifeprex 2 (2008), https://www.gao.gov/assets/ 280/279424.pdf [https://perma.cc/J63V-C6CY]; Memorandum from Ctr. for Drug Evaluation & Rsch. to Sandra P. Arnold, Vice President, Corp. Affs., Population Council, 1 (Sept. 28, 2000), https://www.accessdata.‌fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf [https://perma.cc/36XJ-FFZA]; 21 U.S.C. § 355-1(a)(1), (f)(2); id. § 355(b)(1), (d); 42 U.S.C. § 247d-6d(b). ↑

  30.  Original Complaint at 12, Texas v. Becerra, No. 22-cv-00185, 2022 WL 18034483 (N.D. Tex. Nov. 15, 2022), ECF No. 1 (challenging Department of Health and Human Services Secretary Becerra’s post-Dobbs guidance on major questions grounds). ↑

Reconstructing Reconstruction-Era Rights

It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This Article challenges that wisdom. It demonstrates that social rights were not a concept relevant to the coverage of Article IV’s Privileges and Immunities Clause, the precursor to the Fourteenth Amendment’s Privileges or Immunities Clause. Antebellum legal and political sources used the term “social rights” in a variety of ways, but none tracked the purported Reconstruction-era trichotomy of civil, political, and social rights; most uses of the term connected social rights to civil rights, which Article IV (and therefore the Fourteenth Amendment) reached.

The harder question is whether the Fourteenth Amendment reaches “public” rights and privileges as opposed to “private” rights. A close examination of antebellum jurisprudence suggests that public rights were excluded from the scope of Article IV because they were privileges of “special” citizenship but not “general” citizenship common to the citizens “in the several states.” Public privileges are likely included under the Fourteenth Amendment, however, which guarantees the privileges and immunities of citizens “of the United States” within particular states, including the privilege of all U.S. citizens to the public privileges of their own states to which they contribute through general taxation. If this framing is correct, then both the interracial marriage and school desegregation cases are easier to sustain on originalist grounds than prior studies have suggested.

Introduction

It is conventional wisdom that the framers of the Fourteenth Amendment, and the public that ratified it, divided rights into three categories: civil rights, with respect to which the Amendment guaranteed equality, and social and political rights, which were excluded from coverage. Jack Balkin, for example, has written that the Reconstruction generation “divided the rights of citizens into three parts—civil, political, and social—and held that equal citizenship meant equality of civil rights.”1 1.Balkin, Constitutional Redemption, supra note 1, at 139 (emphasis omitted).Show More According to this “tripartite theory of citizenship,”2 2.Id. at 146; see also Balkin, Living Originalism, supranote 1, at 227 (arguing that members of Congress who debated what would become the Civil Rights Act of 1875 “accepted the basic distinction” between civil, political, and social rights and argued “over whether access to public education was a civil or a social right”).Show More most members of the Reconstruction Congresses and the public of the time “did not consider blacks to be full social equals with whites, and so they believed that states should still be able to restrict interracial marriage and perhaps even segregate some public facilities.”3 3.Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 19 (2004).Show More

Michael Klarman agrees: “Most northern whites supported only civil rights for blacks, such as freedom of contract, property ownership, and court access—rights guaranteed in the 1866 Civil Rights Act, for which the Fourteenth Amendment was designed to provide a secure constitutional foundation.”4 4.Id.Show More But “[m]any northern whites, including some Republicans, still resisted black political rights, such as voting or jury service, and social rights, such as interracial marriage or school integration.”5 5.Bruce Ackerman, We the People: The Civil Rights Revolution 130 (2014).Show More Similarly, Bruce Ackerman states: “For Reconstruction Republicans, only three spheres of life were worth distinguishing: the political sphere, which involved voting and the like; the civil sphere, which involved the legal protection of life and liberty, including rights of property and contract; and the social sphere, which involved everything else”; and “[w]ithin this traditional trichotomy, the Reconstruction Amendments protected political and civil rights but not social rights.”6 6.Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1016, 1025 (1995) (discussing Brown v. Board of Education, 347 U.S. 483 (1954)).Show More

Michael McConnell, in his famous article defending Brown v. Board of Education on originalist grounds, writes that this “tripartite division of rights . . . between civil rights, political rights, and social rights” was “universally accepted at the time,” and that “this tripartite division of rights forms the essential framework for interpreting the Amendment as it was originally understood.”7 7.Id. at 1016–29.Show More For this proposition, McConnell relies on the legislative debates in Congress over what would become the Civil Rights Act of 1875.8 8.For other examples, see Michael B. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 130 n.241 (2013) (“Another possible reason why marriage would not be covered by the Fourteenth Amendment is that it was regarded as a social right rather than a civil right.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1120 (1997) (“Distinctions among civil, political, and social rights functioned more as a framework for debate than a conceptual scheme of any legal precision . . . . Social rights were those forms of association that, white Americans feared, would obliterate status distinctions and result in the ‘amalgamation’ of the races.”); David A. Strauss, Can Originalism Be Saved?, 92 B.U. L. Rev. 1161, 1169 (2012) (describing it as a “familiar and important point[]” that “the Reconstruction Congress distinguished among civil, political, and social rights: the Fourteenth Amendment, as that Congress conceived it, protected civil rights but not political rights (quintessentially the right to vote) or social rights (of which the clearest example was the right to marry a person of another race)”); Ronald Turner, The Problematics of the Brown-Is-Originalist Project, 23 J.L. & Pol’y 591, 599 (2015) (noting “the three separate and distinct categories of rights recognized in the Reconstruction era: civil rights, political rights, and social rights,” and that “at the time of the adoption of the Fourteenth Amendment social rights (including the right to attend a desegregated school and to marry a person of another race) were deemed to be outside the protective scope of the amendment, a fact which calls into question the notion and conclusion that Brown is consistent with originalism”); Mark Tushnet, Civil Rights and Social Rights: The Future of the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1207, 1207 (1992) (“The Constitution’s revision after the Civil War reflected distinctions that the Reconstruction’s legal culture drew among different kinds of rights. That culture operated comfortably with distinctions among civil rights, political rights and social rights.”). Richard Primus has called into question the logic of these categories but observes that “[a]ccording to prominent modern scholars in both history and law,” understanding the “typology by which political and legal actors classified rights as ‘civil,’ ‘political,’ or ‘social’” is “essential for understanding the constitutional legacy of Reconstruction.” Richard A. Primus, The American Language of Rights 128 (1999); William M. Wiecek, Liberty under Law: The Supreme Court in American Life 94 (1988) (distinguishing between the three categories and describing social rights as including “equal access to public accommodations and education”).Show More This trichotomy is so engrained in the modern literature that nearly every study of the Fourteenth Amendment assumes it to have been widely accepted by the Reconstruction generation.9 9.See, e.g., Balkin, Constitutional Redemption, supra note 1, at 146 (arguing that the trichotomy emerged “out of political necessity” in the Reconstruction Congresses); David E. Bernstein, Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 Vand. L. Rev. 797, 823 (1998) (noting the distinction between social and civil rights “was arguably consistent with the intent of the Framers of the Fourteenth Amendment”); see also supra notes 4–7 and accompanying text (discussing work by Klarman and McConnell on the legislative debates in the 1870s).Show More

This Article challenges that assumption. It takes a methodological approach different from most other studies of the Fourteenth Amendment. Most modern-day originalist (and non-originalist) scholars of the Fourteenth Amendment plumb the depths of the legislative debates in the Thirty-ninth Congress (or subsequent Congresses).10 10. Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 15–63 (2020). For example, due process of law derives from the Magna Carta in 1215. Id. at 17. The protection of the laws also dates back at least to the Magna Carta and is elaborated upon by William Blackstone. Id. at 40–42. And privileges and immunities clauses can be traced back to the Articles of Confederation and even earlier to international treaties. Id. at 49–52.Show More This Article, in contrast, presumes that the meaning of the Fourteenth Amendment can be determined from legal history because each of the central terms of the Fourteenth Amendment’s first section—due process of law, the protection of the laws, and the privileges and immunities of citizenship—is written in legal language.11 11.When Representative Andrew Jackson Rogers of New Jersey asked Representative John Bingham of Ohio, the principal author of § 1 of the Fourteenth Amendment, what he understood by the phrase “due process of law,” Bingham responded: “I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions.” Cong. Globe, 39th Cong., 1st Sess. 1089 (1866). When Senator Jacob Howard of Michigan presented the proposed Amendment to the Senate, he observed that the Senators “may gather some intimation of what probably will be the opinion of the judiciary” on the meaning of the Privileges or Immunities Clause “by referring to a case adjudged many years ago.” Id. at 2765 (citing Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823)). Many of the Constitution’s provisions are written in legal language. John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 Wm. & Mary L. Rev. 1321, 1330 (2018). See generally John O. McGinnis, Michael B. Rappaport, Ilya Shapiro, Kevin Walsh & Ilan Wurman, The Legal Turn in Originalism: A Discussion (San Diego Legal Studies, Paper No. 18-350, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201‌200 [https://perma.cc/J3EU-398N (discussing and debating the trends towards the use of legal methods to interpret the Constitution)].It is also likely that the Founding-era public was aware that legal terms would be construed legally. Ilan Wurman, The Legal U-Turn, in The Legal Turn in Originalism: A Discussion, supra, at 15.Show More What is more, the principal authors of the Amendment suggested that the language of the amendment would be interpreted in accordance with its legal history.12 12.Though a full defense of this particular claim will have to await a future paper. SeeIlan Wurman, Reversing Incorporation (unpublished manuscript) (on file with author).Show More The legal meaning is also consistent with the public meaning.13 13.U.S. Const. amend. XIV, § 1, cl. 2 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”).Show More

Although some scholars argue that the Privileges or Immunities Clause of the Fourteenth Amendment14 14.See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 163–80 (1998); Michael Kent Curtis, No State Shall Abridge: The Fourteenth amendment and the Bill of Rights 1–10 (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 65, 91–108 (2014).Show More was principally intended to incorporate the Bill of Rights against the states,15 15.See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1414–20 (1992) (arguing that many in Congress “thought that the privileges or immunities of citizens consisted of rights defined by state positive law”);McConnell, supranote 7, at 999–1000 (“The better view is that the Privileges or Immunities Clause of the Fourteenth Amendment protected citizens against denials by their own states of the same set of rights that the Privileges and Immunities Clause of Article IV protected against infringement by other states, and possibly, in addition, other rights of United States citizenship.”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 BYU L. Rev. 1393, 1410 (“At a bare minimum then, the Fourteenth Amendment’s Privileges or Immunities Clause included the enumerated rights in the Civil Rights Act such as the right to make or enforce contracts.”); Christopher R. Green, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause 52–60, 66–67 (2015); Wurman, supranote 11, at 101–02.Show More many originalist scholars now agree that the Clause was intended to constitutionalize the Civil Rights Act of 1866 and that the rights covered by the Clause are at a minimum coterminous with the “privileges and immunities” guaranteed in Article IV, § 2.16 16.U.S. Const. art. IV, § 2, cl. 1.Show More Known today as the Comity Clause, that Section provided, “The citizens of each state shall be entitled to all privileges and immunities of the citizens in the several states.”17 17.See, e.g., Lemmon v. People, 20 N.Y. 562, 626–27 (1860) (asserting that the Clause “was always understood as having but one design and meaning, viz., to secure to the citizens of every State, within every other, the privileges and immunities (whatever they might be) accorded in each to its own citizens”). See generallyLash, supranote 15, at 20–26 (tracing the history of the Privileges and Immunities Clause to the Articles of Confederation and visitation treaties between nations); Wurman, supranote 11, at 49–56 (arguing that the historical legal meaning of the Privileges and Immunities Clause required comity).Show More Its meaning was that whatever “privileges and immunities” a state granted its own citizens, it had to accord such privileges and immunities to citizens from other states traveling through or residing in the state.18 18.U.S. Const. art. IV, § 2, cl. 1; id. amend. XIV, § 1, cl. 1; seesources cited supra note 16.Show More As I have recently argued, and as others have argued before me, the Privileges or Immunities Clause of the Fourteenth Amendment, providing that no state shall “abridge” the “privileges or immunities of citizens of the United States,” at a minimum does for intrastate discrimination what the Privileges and Immunities Clause of Article IV did for interstate discrimination.19 19.This Article takes this position as a given and does not put forward any new evidence in support of it; it summarizes the argument in Section I.A infra.Show More

If that is correct, then the “privileges or immunities of citizens of the United States” refers at a minimum to the set of privileges and immunities to which Article IV referred.20 20.See, e.g., Jud Campbell, Fundamental Rights at the American Founding 8–9 (forthcoming) (on file with author) (explaining that many revolutionary-era Americans believed that “[a]t the formation of a political society . . . natural rights became ‘civil’ rights”); see also infraSection I.B (discussing the distinction between “political rights” and “civil rights”).Show More What I aim to show is that the set of rights guaranteed by Article IV included all “civil rights” and excluded “political rights” such as voting, holding office, and sitting on juries. Civil rights are those rights individuals had in the state of nature but which the laws of society modify and regulate;21 21.These are rights that Jud Campbell has labeled “fundamental positive rights.” See Campbell, supra note 21, at 16–17. As Campbell explains, founding-era Americans understood “the importance of fundamental positive rights in securing natural rights”; “[t]o declare ‘natural rights,’ on this view, meant enumerating the customary common-law rules that safeguarded life, liberty, and property.” Id. at 17. More generally, the best description of “privileges and/or immunities” that I have found comes from Eric Claeys. He writes, “[P]rivileges and immunities associated with citizenship referred to civil laws established to secure important moral rights considered crucial to the political community.” Eric R. Claeys, Blackstone’s Commentaries and the Privileges or Immunities of United States Citizens: A Modest Tribute to Professor Siegan, 45 San Diego L. Rev. 777, 785 (2008). “In these contexts, privileges and immunities relate to both natural and civil law. They are creations of positive law, but with the purpose of carrying the natural law into effect.” Id.; see also 1 William Blackstone, Commentaries *125 (1765) (explaining that the “rights” and “liberties” of Englishmen are either “private immunities,” namely the “residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience,” and “those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals”).Show More the category also encompasses other rights like due process and the protection of the laws that are fundamental to the social compact and to securing natural rights.22 22.See infranotes 73–74 and accompanying text.Show More Political rights relate to the support and management of government and do not exist in the absence of political society. Civil rights belong to all “citizens,” but not all citizens have political rights.23 23.Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (guaranteeing equal right “to make and enforce contracts”).Show More

So far, so conventional. The present contested point is that “social rights,” whatever those are, had nothing to do with the scope of the privileges and immunities protected by Article IV. No use of that term in antebellum sources tracked the meaning of the term within the conventional understanding of the Reconstruction-era trichotomy. In each of the antebellum uses, social rights either included civil rights or were otherwise intimately connected with them.

If that is correct, then education and marriage are indisputably civil rights. Neither depends on political society. Certainly, each can be pursued and obtained through contract, and contract was the quintessential civil right guaranteed by Article IV (and the Civil Rights Act of 1866).24 24.Crandall v. State, 10 Conn. 339, 343 (1834); see infraSection I.D.Show More In one high-profile antebellum case involving the education of nonresident Black girls, it was assumed that Article IV reached at least private education.25 25.Conner v. Elliott, 59 U.S. (18 How.) 591, 593 (1855); Connor’s Widow v. Adm’rs & Heirs of Connor, 10 La. Ann. 440, 449 (1855); see infraSection I.D.Show More And in another case from 1855 involving a marriage contract with a nonresident, neither the United States Supreme Court nor the Louisiana Supreme Court decided the case on the ground that marriage was not covered by Article IV which, if it had been true, would have been the easiest way to resolve the case. Neither the courts nor the parties even questioned that the Clause reached marriage laws.26 26.Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565–68 (2007) (distinguishing between “public rights” held by the public as a whole, such as title to public lands and stewardship of the public treasury, public waters, and public roads; “private rights,” namely the rights to personal security, liberty, and property; and “privileges” or “entitlements” that “had no counterpart in the Lockean state of nature” and were created by the State “to carry out public ends”); Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 Geo. L.J. 1015, 1020–21 (2006) (defining public rights to be “claims that were owned by the government—the sovereign people as a whole—rather than in persons’ individual capacities,” and including statutory rights in addition to the proprietary interests of the government within that term).I am using the terms “public right” and “public privilege” interchangeably to refer to those rights that are not “private rights” within Professor Nelson’s taxonomy. Public rights is arguably the broader term, subsuming both those rights actually held by the public (such as rights of way), as well as public privileges. In my view, statutory rights are not public rights, although they are considered so today under modern administrative law doctrine. All private rights are natural rights modified and regulated by the laws of civil society. It should not make a difference whether the source of that regulation is common law or statutory law.Show More

The more complicated question is the status of “public rights,” or “public privileges,” in the sense of the classic private rights/public rights divide.27 27.The classic examples of public rights are rights of way, such as public roads and waterways; public privileges like welfare benefits, public employment, and public land grants; and, in the antebellum period, corporate privileges. See Woolhandler, supra note 27, at 1021 (public lands); Nelson, supranote 27, at 566 (same); Stephen F. Williams, Liberty and Property: The Problem of Government Benefits, 12 J. Legal Stud. 3, 3–4 (1983) (distinguishing traditional liberty and property from government “benefits” including public employment and “government transfers or social insurance”). For corporate privileges, see infraSection II.C.Show More Private rights are those we have in the state of nature, as modified by the laws of civil society—that is, civil rights. Public rights, in contrast, are rights held by the public at large or are entitlements private individuals can claim from the government.28 28.Robert Natelson argues that “privileges” in Article IV were distinct from “rights” and referred only to state-bestowed rights. This would include privileges such as trial by jury, but also “public privileges” in the sense I am using the term here, such as welfare benefits and university tuition discounts. Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117, 1189 (2009). This Article disagrees with Natelson’s view that there is a distinction between privileges and rights for purposes of the Clause, because all natural rights are modified, explained, and protected by the laws of civil society and are thus “privileges” even in the sense that Natelson uses the term. See alsoClaeys, supranote 22, at 785 (discussing Claeys’s definition of privileges and immunities). And “immunities” would include any natural rights left untouched by civil law, at least if Blackstone’s definition is any guide. Id. at 789–90. There is a difference, however, between such privileges, which are effectively private rights, and “public privileges” such as welfare benefits and in-state tuition. As to the latter, this Article shows, contra Natelson, that public privileges would not be covered by Article IV.Show More No study has examined the status of public rights under Article IV and the implications for the Privileges or Immunities Clause.29 29.See infraSection III.A for a more in-depth discussion.Show More Yet the status of public rights and privileges must be addressed to provide a definitive originalist answer to the question of whether Brown v. Board of Education is correct because public education is a public privilege and not a private right.

Public rights differ from both traditional civil rights and political rights. Although some public rights, like welfare benefits or corporate privileges, do not exist in the state of nature, they have analogs in the state of nature: they involve the kinds of rights that already existed or were obtainable in the state of nature or in a private market. Additionally, many public privileges take the form of private rights in that they are supported through general taxation, which involves property rights, and because they are generally distributed and provided for private rather than public purposes.30 30.N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67 (1982) (observing that the doctrine permitting certain cases to be adjudicated in legislative courts “may be explained in part by reference to the traditional principle of sovereign immunity, which recognizes that the Government may attach conditions to its consent to be sued”).Show More These public rights therefore have similarities to civil rights despite that, like political rights, they depend on political society.

The distinction between private rights and public rights is, or at least historically was, important in many areas of law involving the separation of powers. For example, sovereign immunity tended to bar claims against the government when a private party alleged that the government had wrongfully withheld a public privilege, such as a land grant or welfare benefits.31 31.Id. at 67–68 (explaining this line of cases); Nelson, supranote 27, at 582–85 (similar); William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540–47 (2020) (similar); see also Murray’s Lessee v. Hoboken Land & Imp. Co., 59 U.S. 272, 284 (1855) (holding that Congress cannot “withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,” but that “there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper”).Show More Hence, non-Article III courts could adjudicate such matters because Congress’s greater power to refuse consent to suit includes the lesser power to consent to an executive branch adjudication.32 32.The distinction held until Goldberg v. Kelly, 397 U.S. 254, 262 (1970), which rejected the public/private distinction as applied to welfare benefits and due process. See also Charles A. Reich, The New Property, 73 Yale L.J. 733, 778–79 (1964) (arguing that public welfare and privileges should be treated on par with traditional property).Show More The distinction historically explained why the Due Process Clause did not apply to the withdrawal of welfare benefits.33 33.See, e.g., Ann Woolhandler, Public Rights and Taxation: A Brief Response to Professor Parrillo3–4 (Jan. 11, 2022) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cf‌m?abstract_id=4003530 [https://perma.cc/RJQ9-RHJL].Show More And scholars have argued that Congress could delegate more freely in the context of public rights because the government had wide discretion as to how to administer its resources.34 34.Vlandis v. Kline, 412 U.S. 441, 442 (1973) (noting that many states require “nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled,” although not addressing the constitutionality of that practice).Show More

This Article concludes that the legal materials from the antebellum period support the proposition that public rights and privileges were excluded from Article IV because a state could reserve such rights for its own citizens. To this day, for example, a state does not have to extend the benefits of in-state tuition to out-of-state residents.35 35.In a new book, Randy Barnett and Evan Bernick argue that public privileges and political rights like voting can become part of the “privileges or immunities” of U.S. citizens if as a matter of present-day social facts we understand such privileges to be fundamental. Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 22 (2021). As this Article will show, that is incorrect. The criterion for inclusion under Article IV was not that a right was “fundamental,” but rather that it was a civil right, all of which are fundamental. Civil rights, which are pre-political natural rights as modified by the rules of civil society, are categorically different than political rights and public rights. Although in modern discourse the term “civil rights” is casually understood to include political rights, that was not the meaning ascribed to that term or to the term “privileges or immunities” of citizens by those in the antebellum period. Moreover, Barnett and Bernick argue that under their reading, the reach of the Privileges or Immunities Clause can expandto include new rights that we deem fundamental, but it can never contract to eliminate protection for pre-political, natural civil rights like property rights or gun rights. Id. at 25. But if the criterion is what is “fundamental” by today’s lights, why could the reach of the Clause not contract as well as expand?Show More The crucial question is why they were excluded. If they were excluded because “public privileges” are not “rights” in the sense of being “privileges and immunities of citizens,” then they are excluded from both Article IV and the Fourteenth Amendment. If, however, the right of a state’s own citizens to access public privileges of a certain type—at least those financed through taxation or other common resources, that are widely distributed and available, and that are for private rather than public use—is a “privilege or immunity” of all United States citizens within their particular states, the Fourteenth Amendment may reach such rights even if Article IV does not.36 36.McConnell, supranote 7, at 953–54.Show More

The implications for originalism and the school desegregation and interracial marriage cases are obvious. Michael McConnell’s classic study of the legislative debates surrounding the Civil Rights Act of 1875 assumes that the question is whether integrated public education is a social right or a civil right and argues that the answer to this question is to be found in the post-enactment debates in the early 1870s.37 37.Id. at 1103–04. Barnett and Bernick similarly defend Brown on the ground that public education could become fundamental over time as a matter of contemporary social understanding and, if so, it becomes covered by the Fourteenth Amendment. Barnett & Bernick, supranote 36, at 30.Show More The claim here, in contrast, is that the answer to whether the Fourteenth Amendment reaches public education is to be found in pre-enactment, antebellum jurisprudence, which distinguished civil rights and political rights on the one hand, and private rights and public privileges on the other. Separate may or may not be equal, but at a minimum the Fourteenth Amendment applies to public education. This approach also improves upon McConnell’s argument that even if public education were not a civil right in 1868, it was certainly a civil right by 1954.38 38.Steven G. Calabresi & Michael W. Perl, Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 434–35, 437 (describing Article IV, and thus the Privileges or Immunities Clause, as guaranteeing all “fundamental” rights, and arguing that public education was such a right).Show More Resorting to 1954 does not supply a complete answer, however, because the question is whether a public privilege could ever be considered within the scope of the privileges and immunities of citizenship.

This approach differs from other defenses of Brown as well. Steven Calabresi and Michael Perl argue that the Privileges or Immunities Clause protected only “fundamental” rights, defined as rights guaranteed by at least three-quarters of the states, and that public education was such a right in both 1868 and 1954.39 39.As noted previously, Calabresi and Perl argue the right was fundamental because it was recognized in at least three-quarters of the states’ constitutions. See id. But as McConnell writes, “[t]here was considerable force to the claim that public school systems in the South, which were the focus of attention in the debates, were too informal and rudimentary to support the notion that there was an established, legally enforceable right to attend public school.” McConnell, supranote 7, at 1039. McConnell argues that “[n]o comprehensive public school systems existed at all in the Southern states before the War, and progress after the War was fitful.” Id. “Public schools in the Southern states served only a fraction of the school-age population.” Id. Indeed, Calabresi and Perl themselves observe that several of the state constitutional provisions required the legislature to establish common schools “as soon as practicable” or “as soon as conveniently may be.” Calabresi & Perl, supranote 39, at 451 & n.100, 453 n.111, 454 nn.120 & 122, 455 n.125, 457 n.130 (quoting Del. Const. of 1831, art. VII, § 11; then quoting Miss. Const. of 1868, art. VIII, § 1; then quoting Pa. Const. of 1838, art. VII, § 1; then quoting S.C. Const. of 1868, art. X, § 3; then quoting W. Va. Const. of 1861, art. X, § 2; and then quoting Conn. Const. of 1818, art. VIII, § 2). These provisions are not particularly strong evidence of a fundamental right.Show More That approach faces several difficulties, including the validity of that criterion for determining fundamental rights, as well as the lower-order question whether public education in fact met that criterion (whether in 1868 or 1954).40 40.The defense of Brown presented here also does not depend on defining “equality” at a high level of generality, as earlier defenses have. Balkin, Living Originalism, supranote 1, at 230–31 (arguing that the civil rights revolution “was so successful in altering understandings of equality that the tripartite theory seems strange to us today,” and that modern views of “equal citizenship and equality before the law” obviously require school desegregation and the invalidation of anti-miscegenation laws). Nor does it depend on interpreting the “protection of the laws” broadly, for the original meaning of that phrase was quite narrow, likely referring only to judicial remedies and protection against private violence. See, e.g., Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 Geo. Mason U. C.R. L.J. 1, 44–45 (2008) (arguing that “equal protection of the laws” has such a narrow meaning); Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L.J. 219, 220–21 (2009) (showing that this narrow meaning was the prominent understanding of the Equal Protection Clause post-enactment).Show More The approach presented here, in contrast, assumes that all civil rights (but not political rights) are “fundamental” in the sense of being covered by Article IV and the Fourteenth Amendment; the question then becomes whether public privileges were understood to be in this category when offered by a state, regardless of how many other states offered such privileges.41 41.This argument, too, is in contrast to prior scholarship. SeeCalabresi & Matthews, supranote 16, at 1419 (arguing that the question is whether the right to marry is a fundamental right, and answering that “[t]he right to marry would surely have been thought to be a fundamental and longstanding common law right in 1868”).Show More

Under this approach, there is even less question that the Privileges or Immunities Clause reaches marriage. The right to marry is not a public privilege and is not a political right. It is a civil right. It is therefore covered by the Fourteenth Amendment.42 42.388 U.S. 1, 12 (1967) (invalidating anti-miscegenation laws).Show More And the legal methodology adopted here also challenges the claims of non-originalist scholars that the Fourteenth Amendment could not compel the result in Loving v. Virginia43 43.Michael J. Klarman, Brown,Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881, 1883 (1995) (arguing that Brown is inconsistent with originalism); Eric J. Segall, Originalism as Faith52–53 (2018) (arguing that Loving is inconsistent with originalism); David A. Strauss, The Living Constitution 12–13 (2010) (arguing that Brown is not only inconsistent with originalism but that the Brown Court stated that the original understanding of the Fourteenth Amendment would not support the Brown decision).Show More or Brown v. Board,44 44.Mark Tushnet, The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston, 74 J. Am. Hist. 884, 888 (1987) (“The domains of civil, political, and social rights were thus not sharply set off from each other. Equality was a fuzzy concept, and its supporters often simply ignored their disagreements over the concept’s application to particular problems.”).Show More or that the Amendment was irreducibly ambiguous as to which rights it applied.45 45.See, e.g., id. at 889–90; see alsoRichard A. Primus, The American Language of Rights156 (1999) (arguing that “many rights were not clearly fixed in one category or another” of the trichotomy).Show More

This methodological approach should also therefore encourage a rethinking of Reconstruction rights discourse more generally. Numerous scholars have shown the illogic of the trichotomy.46 46.Primus, supra note 46, at 155.Show More Richard Primus, for example, has explained that one could argue social rights applied only to private actions, like private schools, but that many argued schooling altogether, whether private or public, was a social right.47 47.Cass R. Sunstein, The Partial Constitution 42 (1993); Wiecek, supra note 9, at 94.Show More Cass Sunstein and William Wiecek adopt the view that public education is a social right.48 48.W.R. Brock, An American Crisis: Congress and Reconstruction, 1865–1867, at 19 (1963).Show More W.R. Brock, on the other hand, argues education is a political right.49 49.This issue did arise occasionally. See Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849) (holding that segregated public schools did not violate any Massachusetts law).Show More The approach here has the potential to dissolve at least some of the controversy and contestation because civil rights, political rights, and public privileges are amenable to more concrete definition.

This Article proceeds as follows. Part I summarizes the connection between Article IV and the Privileges or Immunities Clause and the evidence for the proposition that the Clause reached all civil but not political rights. It then examines four prominent antebellum uses of the term “social rights,” none of which tracked the purported Reconstruction-era trichotomy. It concludes with an examination of two marriage and education cases that suggest marriage and education were civil rights, although these cases are hardly dispositive of the question.

Part II analyzes antebellum jurisprudence surrounding public privileges, specifically the natural resources or common property of a state, the poor relief laws, and corporate privileges. It concludes that such privileges were excluded from Article IV because they were privileges of “special” rather than “general” citizenship and because under principles of comity a state could reserve such rights for its own citizens.

Part III makes the argument that such public privileges, although excluded from Article IV, are likely included within the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. It then investigates the use of the term “social rights” in the Reconstruction Congresses and concludes that with few exceptions, the members of these Congresses adhered to the classic distinctions between civil and political rights on the one hand, and private rights and public rights and privileges on the other. To be sure, it may be that the Reconstruction generation confronted a problem that rarely arose in the antebellum period: the question of compelling association in common carriers and common schools.50 50.And in this sense, Loving was an easier case than Brown. See infra Part IV.Show More (This argument would not apply to prohibitions on interracial marriage.footnote_id_52_51) To the extent that this generation did identify a new category of “associational” rights in common institutions, the public rights/private rights distinction still helps clarify the analysis because it reveals that the Fourteenth Amendment at least requires equality with respect to such public privileges. It is, therefore, a merits question whether enforcing associational segregation in fact abridged the privileges and immunities of Black citizens. Part IV concludes.

  1.  Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 139 (2011) [hereinafter Balkin, Constitutional Redemption]; see also Jack M. Balkin, Living Originalism 222–23 (2011) [hereinafter Balkin, Living Originalism] (articulating the tripartite distinction). ↑
  2.  Balkin, Constitutional Redemption, supra note 1, at 139 (emphasis omitted). ↑
  3.  Id. at 146; see also Balkin, Living Originalism, supra note 1, at 227 (arguing that members of Congress who debated what would become the Civil Rights Act of 1875 “accepted the basic distinction” between civil, political, and social rights and argued “over whether access to public education was a civil or a social right”). ↑
  4.  Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 19 (2004). ↑
  5.  Id. ↑
  6.  Bruce Ackerman, We the People: The Civil Rights Revolution 130 (2014). ↑
  7.  Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1016, 1025 (1995) (discussing Brown v. Board of Education, 347 U.S. 483 (1954)). ↑
  8.  Id. at 1016–29. ↑
  9.  For other examples, see Michael B. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 130 n.241 (2013) (“Another possible reason why marriage would not be covered by the Fourteenth Amendment is that it was regarded as a social right rather than a civil right.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1120 (1997) (“Distinctions among civil, political, and social rights functioned more as a framework for debate than a conceptual scheme of any legal precision . . . . Social rights were those forms of association that, white Americans feared, would obliterate status distinctions and result in the ‘amalgamation’ of the races.”); David A. Strauss, Can Originalism Be Saved?, 92 B.U. L. Rev. 1161, 1169 (2012) (describing it as a “familiar and important point[]” that “the Reconstruction Congress distinguished among civil, political, and social rights: the Fourteenth Amendment, as that Congress conceived it, protected civil rights but not political rights (quintessentially the right to vote) or social rights (of which the clearest example was the right to marry a person of another race)”); Ronald Turner, The Problematics of the Brown-Is-Originalist Project, 23 J.L. & Pol’y 591, 599 (2015) (noting “the three separate and distinct categories of rights recognized in the Reconstruction era: civil rights, political rights, and social rights,” and that “at the time of the adoption of the Fourteenth Amendment social rights (including the right to attend a desegregated school and to marry a person of another race) were deemed to be outside the protective scope of the amendment, a fact which calls into question the notion and conclusion that Brown is consistent with originalism”); Mark Tushnet, Civil Rights and Social Rights: The Future of the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1207, 1207 (1992) (“The Constitution’s revision after the Civil War reflected distinctions that the Reconstruction’s legal culture drew among different kinds of rights. That culture operated comfortably with distinctions among civil rights, political rights and social rights.”). Richard Primus has called into question the logic of these categories but observes that “[a]ccording to prominent modern scholars in both history and law,” understanding the “typology by which political and legal actors classified rights as ‘civil,’ ‘political,’ or ‘social’” is “essential for understanding the constitutional legacy of Reconstruction.” Richard A. Primus, The American Language of Rights 128 (1999); William M. Wiecek, Liberty under Law: The Supreme Court in American Life 94 (1988) (distinguishing between the three categories and describing social rights as including “equal access to public accommodations and education”). ↑
  10.  See, e.g., Balkin, Constitutional Redemption, supra note 1, at 146 (arguing that the trichotomy emerged “out of political necessity” in the Reconstruction Congresses); David E. Bernstein, Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 Vand. L. Rev. 797, 823 (1998) (noting the distinction between social and civil rights “was arguably consistent with the intent of the Framers of the Fourteenth Amendment”); see also supra notes 4–7 and accompanying text (discussing work by Klarman and McConnell on the legislative debates in the 1870s). ↑

  11. Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 15–63 (2020). For example, due process of law derives from the Magna Carta in 1215. Id. at 17. The protection of the laws also dates back at least to the Magna Carta and is elaborated upon by William Blackstone. Id. at 40–42. And privileges and immunities clauses can be traced back to the Articles of Confederation and even earlier to international treaties. Id. at 49–52. ↑

  12.  When Representative Andrew Jackson Rogers of New Jersey asked Representative John Bingham of Ohio, the principal author of § 1 of the Fourteenth Amendment, what he understood by the phrase “due process of law,” Bingham responded: “I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions.” Cong. Globe, 39th Cong., 1st Sess. 1089 (1866). When Senator Jacob Howard of Michigan presented the proposed Amendment to the Senate, he observed that the Senators “may gather some intimation of what probably will be the opinion of the judiciary” on the meaning of the Privileges or Immunities Clause “by referring to a case adjudged many years ago.” Id. at 2765 (citing Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823)). Many of the Constitution’s provisions are written in legal language. John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 Wm. & Mary L. Rev. 1321, 1330 (2018). See generally John O. McGinnis, Michael B. Rappaport, Ilya Shapiro, Kevin Walsh & Ilan Wurman, The Legal Turn in Originalism: A Discussion (San Diego Legal Studies, Paper No. 18-350, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201‌200 [https://perma.cc/J3EU-398N (discussing and debating the trends towards the use of legal methods to interpret the Constitution)].

    It is also likely that the Founding-era public was aware that legal terms would be construed legally. Ilan Wurman, The Legal U-Turn, in The Legal Turn in Originalism: A Discussion, supra, at 15. ↑

  13.  Though a full defense of this particular claim will have to await a future paper. See Ilan Wurman, Reversing Incorporation (unpublished manuscript) (on file with author). ↑
  14.  U.S. Const. amend. XIV, § 1, cl. 2 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”). ↑
  15.  See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 163–80 (1998); Michael Kent Curtis, No State Shall Abridge: The Fourteenth amendment and the Bill of Rights 1–10 (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 65, 91–108 (2014). ↑
  16.  See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1414–20 (1992) (arguing that many in Congress “thought that the privileges or immunities of citizens consisted of rights defined by state positive law”); McConnell, supra note 7, at 999–1000 (“The better view is that the Privileges or Immunities Clause of the Fourteenth Amendment protected citizens against denials by their own states of the same set of rights that the Privileges and Immunities Clause of Article IV protected against infringement by other states, and possibly, in addition, other rights of United States citizenship.”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 BYU L. Rev. 1393, 1410 (“At a bare minimum then, the Fourteenth Amendment’s Privileges or Immunities Clause included the enumerated rights in the Civil Rights Act such as the right to make or enforce contracts.”); Christopher R. Green, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause 52–60, 66–67 (2015); Wurman, supra note 11, at 101–02. ↑
  17.  U.S. Const. art. IV, § 2, cl. 1. ↑
  18.  See, e.g., Lemmon v. People, 20 N.Y. 562, 626–27 (1860) (asserting that the Clause “was always understood as having but one design and meaning, viz., to secure to the citizens of every State, within every other, the privileges and immunities (whatever they might be) accorded in each to its own citizens”). See generally Lash, supra note 15, at 20–26 (tracing the history of the Privileges and Immunities Clause to the Articles of Confederation and visitation treaties between nations); Wurman, supra note 11, at 49–56 (arguing that the historical legal meaning of the Privileges and Immunities Clause required comity). ↑
  19.  U.S. Const. art. IV, § 2, cl. 1; id. amend. XIV, § 1, cl. 1; see sources cited supra note 16. ↑
  20.  This Article takes this position as a given and does not put forward any new evidence in support of it; it summarizes the argument in Section I.A infra. ↑
  21.  See, e.g., Jud Campbell, Fundamental Rights at the American Founding 8–9 (forthcoming) (on file with author) (explaining that many revolutionary-era Americans believed that “[a]t the formation of a political society . . . natural rights became ‘civil’ rights”); see also infra Section I.B (discussing the distinction between “political rights” and “civil rights”). ↑
  22.  These are rights that Jud Campbell has labeled “fundamental positive rights.” See Campbell, supra note 21, at 16–17. As Campbell explains, founding-era Americans understood “the importance of fundamental positive rights in securing natural rights”; “[t]o declare ‘natural rights,’ on this view, meant enumerating the customary common-law rules that safeguarded life, liberty, and property.” Id. at 17. More generally, the best description of “privileges and/or immunities” that I have found comes from Eric Claeys. He writes, “[P]rivileges and immunities associated with citizenship referred to civil laws established to secure important moral rights considered crucial to the political community.” Eric R. Claeys, Blackstone’s Commentaries and the Privileges or Immunities of United States Citizens: A Modest Tribute to Professor Siegan, 45 San Diego L. Rev. 777, 785 (2008). “In these contexts, privileges and immunities relate to both natural and civil law. They are creations of positive law, but with the purpose of carrying the natural law into effect.” Id.; see also 1 William Blackstone, Commentaries *125 (1765) (explaining that the “rights” and “liberties” of Englishmen are either “private immunities,” namely the “residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience,” and “those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals”). ↑
  23.  See infra notes 73–74 and accompanying text. ↑
  24.  Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (guaranteeing equal right “to make and enforce contracts”). ↑
  25.  Crandall v. State, 10 Conn. 339, 343 (1834); see infra Section I.D. ↑
  26.  Conner v. Elliott, 59 U.S. (18 How.) 591, 593 (1855); Connor’s Widow v. Adm’rs & Heirs of Connor, 10 La. Ann. 440, 449 (1855); see infra Section I.D. ↑
  27.  Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565–68 (2007) (distinguishing between “public rights” held by the public as a whole, such as title to public lands and stewardship of the public treasury, public waters, and public roads; “private rights,” namely the rights to personal security, liberty, and property; and “privileges” or “entitlements” that “had no counterpart in the Lockean state of nature” and were created by the State “to carry out public ends”); Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 Geo. L.J. 1015, 1020–21 (2006) (defining public rights to be “claims that were owned by the government—the sovereign people as a whole—rather than in persons’ individual capacities,” and including statutory rights in addition to the proprietary interests of the government within that term).

    I am using the terms “public right” and “public privilege” interchangeably to refer to those rights that are not “private rights” within Professor Nelson’s taxonomy. Public rights is arguably the broader term, subsuming both those rights actually held by the public (such as rights of way), as well as public privileges. In my view, statutory rights are not public rights, although they are considered so today under modern administrative law doctrine. All private rights are natural rights modified and regulated by the laws of civil society. It should not make a difference whether the source of that regulation is common law or statutory law. ↑

  28.  The classic examples of public rights are rights of way, such as public roads and waterways; public privileges like welfare benefits, public employment, and public land grants; and, in the antebellum period, corporate privileges. See Woolhandler, supra note 27, at 1021 (public lands); Nelson, supra note 27, at 566 (same); Stephen F. Williams, Liberty and Property: The Problem of Government Benefits, 12 J. Legal Stud. 3, 3–4 (1983) (distinguishing traditional liberty and property from government “benefits” including public employment and “government transfers or social insurance”). For corporate privileges, see infra Section II.C. ↑
  29.  Robert Natelson argues that “privileges” in Article IV were distinct from “rights” and referred only to state-bestowed rights. This would include privileges such as trial by jury, but also “public privileges” in the sense I am using the term here, such as welfare benefits and university tuition discounts. Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117, 1189 (2009). This Article disagrees with Natelson’s view that there is a distinction between privileges and rights for purposes of the Clause, because all natural rights are modified, explained, and protected by the laws of civil society and are thus “privileges” even in the sense that Natelson uses the term. See also Claeys, supra note 22, at 785 (discussing Claeys’s definition of privileges and immunities). And “immunities” would include any natural rights left untouched by civil law, at least if Blackstone’s definition is any guide. Id. at 789–90. There is a difference, however, between such privileges, which are effectively private rights, and “public privileges” such as welfare benefits and in-state tuition. As to the latter, this Article shows, contra Natelson, that public privileges would not be covered by Article IV. ↑
  30.  See infra Section III.A for a more in-depth discussion. ↑
  31.  N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67 (1982) (observing that the doctrine permitting certain cases to be adjudicated in legislative courts “may be explained in part by reference to the traditional principle of sovereign immunity, which recognizes that the Government may attach conditions to its consent to be sued”). ↑
  32.  Id. at 67–68 (explaining this line of cases); Nelson, supra note 27, at 582–85 (similar); William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540–47 (2020) (similar); see also Murray’s Lessee v. Hoboken Land & Imp. Co., 59 U.S. 272, 284 (1855) (holding that Congress cannot “withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,” but that “there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper”). ↑
  33.  The distinction held until Goldberg v. Kelly, 397 U.S. 254, 262 (1970), which rejected the public/private distinction as applied to welfare benefits and due process. See also Charles A. Reich, The New Property, 73 Yale L.J. 733, 778–79 (1964) (arguing that public welfare and privileges should be treated on par with traditional property). ↑
  34.  See, e.g., Ann Woolhandler, Public Rights and Taxation: A Brief Response to Professor Parrillo 3–4 (Jan. 11, 2022) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cf‌m?abstract_id=4003530 [https://perma.cc/RJQ9-RHJL]. ↑
  35.  Vlandis v. Kline, 412 U.S. 441, 442 (1973) (noting that many states require “nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled,” although not addressing the constitutionality of that practice). ↑
  36.  In a new book, Randy Barnett and Evan Bernick argue that public privileges and political rights like voting can become part of the “privileges or immunities” of U.S. citizens if as a matter of present-day social facts we understand such privileges to be fundamental. Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 22 (2021). As this Article will show, that is incorrect. The criterion for inclusion under Article IV was not that a right was “fundamental,” but rather that it was a civil right, all of which are fundamental. Civil rights, which are pre-political natural rights as modified by the rules of civil society, are categorically different than political rights and public rights. Although in modern discourse the term “civil rights” is casually understood to include political rights, that was not the meaning ascribed to that term or to the term “privileges or immunities” of citizens by those in the antebellum period. Moreover, Barnett and Bernick argue that under their reading, the reach of the Privileges or Immunities Clause can expand to include new rights that we deem fundamental, but it can never contract to eliminate protection for pre-political, natural civil rights like property rights or gun rights. Id. at 25. But if the criterion is what is “fundamental” by today’s lights, why could the reach of the Clause not contract as well as expand? ↑
  37.  McConnell, supra note 7, at 953–54. ↑
  38.  Id. at 1103–04. Barnett and Bernick similarly defend Brown on the ground that public education could become fundamental over time as a matter of contemporary social understanding and, if so, it becomes covered by the Fourteenth Amendment. Barnett & Bernick, supra note 36, at 30. ↑
  39.  Steven G. Calabresi & Michael W. Perl, Originalism and Brown v. Board of Education, 2014 Mich. St. L. Rev. 429, 434–35, 437 (describing Article IV, and thus the Privileges or Immunities Clause, as guaranteeing all “fundamental” rights, and arguing that public education was such a right). ↑
  40.  As noted previously, Calabresi and Perl argue the right was fundamental because it was recognized in at least three-quarters of the states’ constitutions. See id. But as McConnell writes, “[t]here was considerable force to the claim that public school systems in the South, which were the focus of attention in the debates, were too informal and rudimentary to support the notion that there was an established, legally enforceable right to attend public school.” McConnell, supra note 7, at 1039. McConnell argues that “[n]o comprehensive public school systems existed at all in the Southern states before the War, and progress after the War was fitful.” Id. “Public schools in the Southern states served only a fraction of the school-age population.” Id. Indeed, Calabresi and Perl themselves observe that several of the state constitutional provisions required the legislature to establish common schools “as soon as practicable” or “as soon as conveniently may be.” Calabresi & Perl, supra note 39, at 451 & n.100, 453 n.111, 454 nn.120 & 122, 455 n.125, 457 n.130 (quoting Del. Const. of 1831, art. VII, § 11; then quoting Miss. Const. of 1868, art. VIII, § 1; then quoting Pa. Const. of 1838, art. VII, § 1; then quoting S.C. Const. of 1868, art. X, § 3; then quoting W. Va. Const. of 1861, art. X, § 2; and then quoting Conn. Const. of 1818, art. VIII, § 2). These provisions are not particularly strong evidence of a fundamental right. ↑
  41.  The defense of Brown presented here also does not depend on defining “equality” at a high level of generality, as earlier defenses have. Balkin, Living Originalism
    ,

    supra note 1, at 230–31 (arguing that the civil rights revolution “was so successful in altering understandings of equality that the tripartite theory seems strange to us today,” and that modern views of “equal citizenship and equality before the law” obviously require school desegregation and the invalidation of anti-miscegenation laws). Nor does it depend on interpreting the “protection of the laws” broadly, for the original meaning of that phrase was quite narrow, likely referring only to judicial remedies and protection against private violence. See, e.g., Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 Geo. Mason U. C.R. L.J. 1, 44–45 (2008) (arguing that “equal protection of the laws” has such a narrow meaning); Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L.J. 219, 220–21 (2009) (showing that this narrow meaning was the prominent understanding of the Equal Protection Clause post-enactment). ↑

  42.  This argument, too, is in contrast to prior scholarship. See Calabresi & Matthews, supra note 16, at 1419 (arguing that the question is whether the right to marry is a fundamental right, and answering that “[t]he right to marry would surely have been thought to be a fundamental and longstanding common law right in 1868”). ↑
  43.  388 U.S. 1, 12 (1967) (invalidating anti-miscegenation laws). ↑
  44.  Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881, 1883 (1995) (arguing that Brown is inconsistent with originalism); Eric J. Segall, Originalism as Faith

    52–53 (2018) (arguing that Loving is inconsistent with originalism); David A. Strauss, The Living Constitution 12–13 (2010) (arguing that Brown is not only inconsistent with originalism but that the Brown Court stated that the original understanding of the Fourteenth Amendment would not support the Brown decision). ↑

  45.  Mark Tushnet, The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston, 74 J. Am. Hist. 884, 888 (1987) (“The domains of civil, political, and social rights were thus not sharply set off from each other. Equality was a fuzzy concept, and its supporters often simply ignored their disagreements over the concept’s application to particular problems.”). ↑
  46.  See, e.g., id. at 889–90; see also Richard A. Primus, The American Language of Rights

    156 (1999) (arguing that “many rights were not clearly fixed in one category or another” of the trichotomy). ↑

  47.  Primus, supra note 46, at 155. ↑
  48.  Cass R. Sunstein, The Partial Constitution 42 (1993); Wiecek, supra note 9, at 94. ↑
  49. W.

    R. Brock, An American Crisis: Congress and Reconstruction, 1865–1867, at 19 (1963). ↑

  50.  This issue did arise occasionally. See Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849) (holding that segregated public schools did not violate any Massachusetts law). ↑

  51.  And in this sense, Loving was an easier case than Brown. See infra Part IV. ↑

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