Issue 4

Sacred Easements

In the last forty years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. When confronting threats to sacred lands, Native Americans stridently assert constitutional and statutory free exercise protections against public authorities. But unlike litigation involving non-Indian religious property, cases involving sacred sites seek to protect land that tribal faith communities do not themselves own. Because they lack an explicit ownership interest, Native Americans struggle to protect their sacred sites from desecration and destruction. Courts asked to weigh Indian religious liberty claims against non-Indian property claims always side with the landowner. Since sacred sites are often located on land owned by the federal government, the government regularly wins. Religious liberty precedent leaves sacred sites effectively unprotected.

This Article proposes a new approach that is rooted in property law. It argues that Native American religious practice at sacred sites may have created circumstances under which easements arose by force of law. Before the federal government severed their ancestral lands, Native American tribes used certain inherently sacred parts of their territory regularly, necessarily, and predictably for their religious practice. Where Native American claimants can demonstrate sacred land uses that persisted through dispossession, flowing from intergenerational traditions uniting past and present, their religious practice can provide the kind of secular evidence courts typically consider in defining easements. An easement arising by force of law—by prescription, customary claim, or implication—would allow their tribes to exercise an ownership interest in their sacred sites, rather than assert an access right that can be balanced against another owner’s right to exclude.

This Article also argues that Congress can, and should, create a statutory property right for tribes to claim an explicit ownership interest in their sacred sites, corresponding to their sacred land use. Modeled on conservation easements, such nonpossessory ownership interests would preserve sacred sites for Native American religious practice. Tribes granted “sacred easements” could monitor—and, if necessary, constrain—both present and future uses of government-owned lands, ensuring compliance with the needs of their religious practice without barring public access to sacred sites.

Divided property rights can help Native American faith communities and the federal government assuage fears of mutual exclusion from sacred sites located on public land. By allowing tribes to claim sacred land use easements in their ancestral territory, the government can help to cure lingering defects in title created by tribal land acquisition efforts during the nineteenth century. Sacred easements accord with the government’s trust responsibility for tribal religious exercise. Historic federal efforts to suppress Native religions warrant present federal accommodation of Native sacred land use.

“The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief . . . . That task, to the extent that it is feasible, is for the legislatures and other institutions . . . . Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”

– Lyng v. Northwest Indian Cemetery Protective Association1 1.485 U.S. 439, 452–53 (1988).Show More

Introduction

Since “time immemorial,” Western Apaches have lived and worshipped on Chi’chil Biłdagoteel, known in English as Oak Flat.2 2.Emergency Motion for an Injunction Pending Appeal Under Circuit Rule 27-3 at 1, Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022) (No. 21-15295) [hereinafter Emergency Motion].Show More Situated within Arizona’s vibrant Tonto National Forest, Oak Flat embraces “jagged cliffs, boulder fields, grassy basins, Emory oaks, and perennial waters” that refresh “songbirds, mountain lions, fox, bear, and deer.”3 3.Id. at 3–4 (“Oak Flat [is] a 6.7-square-mile traditional cultural property between Apache Leap on the west and Ga’an Canyon (called Devil’s Canyon by non-Indians) on the east.”); Zinaida Carroll, The Spiritual Connection of Indigenous Women to the Land and its Crucial Role in the Apache’s Battle for Sovereignty, Nat’l Indigenous Women’s Res. Ctr., https://www.niwrc.org/restoration-magazine/june-2021/oak-flat-chichil-bildagoteel [https://p‌erma.cc/MFW3-NLY2] (last visited Feb. 26, 2024).Show More Western Apaches believe that the Creator gives life to all things, including air, water, and Mother Earth herself, Nahagosan.4 4.Emergency Motion, supra note 2, at 3.Show More They “strive to remain intertwined with the earth, with the mother.”5 5.Id. (citation omitted).Show More While Western Apache religious and cultural identities are inextricably tied to the land of their ancestors, Oak Flat remains the tribes’ most sacred site, a place “uniquely endowed with holiness and medicine,” a kind of “direct corridor” to their religion.6 6.Id. at 5. As the Emergency Motion explained, “Central to this connection [between Apaches and the Creator] are the Ga’an, who are ‘guardians’ and ‘messengers’ between the Creator and people in the physical world—roughly comparable to angels in Christianity. Usen [the Creator] . . . created specific ‘blessed places’ for the Ga’an to dwell. One of the most important of the Ga’an dwelling places is Oak Flat . . . .” (citations omitted). Id. at 3. Chi’chil Biłdagoteel holds significant cultural and spiritual meaning for many Native American tribes, including the San Carlos Apache, Tonto Apache, White Mountain Apache, Yavapai Apache, Zuni, Hopi, Yavapai Prescott Indian Tribe, Gila River Indian Community, and Saltwater Pima Maricopa Indian Community. Carroll, supra note 3.Show More Ritual practices defined by ancestral custom unite Western Apaches with Mother Earth and her Creator, but also with their parents and grandparents, whose own parents and grandparents passed down tribal religious traditions at Oak Flat.7 7.See Declaration of Cranston Hoffman Jr. at 2–3, Apache Stronghold v. United States, 519 F. Supp. 3d 591 (D. Ariz. 2021) (No. 21-15295) [hereinafter Declaration].Show More Western Apaches gather “sacred medicine plants, animals, and minerals essential to . . . [religious] ceremonies,” drawing “sacred spring waters that flows [sic] from the earth with healing powers not present elsewhere,” offering ancient prayers and songs that testify to their place in creation.8 8.Emergency Motion, supra note 2, at 5.Show More Many fundamental religious practices—including Sunrise Ceremonies and Holy Grounds Ceremonies—“must take place there,” since only from Oak Flat can Western Apache “prayers directly go to [the] creator.”9 9.Id. (citation omitted). Beyond the gathering of medicinal plants, animals, minerals, and spring water, Apache religious practices at Oak Flat include the Sunrise Ceremony, Holy Ground ceremonies, and sweat lodge ceremonies. See id. at 6–8 (describing the Sunrise Ceremony).Show More Neither the “powers resident there,” nor Western Apache religious practices that “pray to and through these powers can be relocated.”10 10.Id. at 5 (internal quotation marks omitted) (citation omitted).Show More

The federal government has protected Oak Flat for more than six decades, in keeping with its trust responsibility to Western Apache tribal communities in Arizona.11 11.President Eisenhower reserved 760 acres of Oak Flat for “public purposes” to protect it from mining in 1955. Reserving Lands Within National Forests for Use of the Forest Service as Camp Grounds, Recreation Areas, or for Other Public Purposes, 20 Fed. Reg. 7336, 7336–37 (Oct. 1, 1955) (referred to by the Department of the Interior as Public Land Order 1229). President Nixon renewed that protection in 1971. Modification of Public Land Order 1229, 36 Fed. Reg. 19029, 19029 (Sept. 25, 1971) (Public Land Order 5132). The National Park Service eventually placed Oak Flat in the National Register of Historic Places: “Chi’chil Biłdagoteel is an important feature of the Western Apache landscape as a sacred site, as a source of supernatural power, and as a staple in their traditional lifeway.” Emergency Motion, supra note 2, at 10 (quoting Chi’chil Biłdagoteel Historic District, Traditional Cultural Property, Nat’l Reg. of Historic Places Registration Form, at 8 (Dec. 2, 2015), https://www.resolution‌mineeis.us/sites/default/files/references/nez-2016.pdf [https://perma.cc/8HGZ-VTCB]).Show More But in 2014, a last-minute rider attached to the National Defense Authorization Act revoked presidential orders protecting the site and authorized transfer of a 2,422-acre parcel—including the entirety of Oak Flat—to Resolution Copper, a foreign-owned mining company.12 12.See Eric Lipton, In Last Rush, Trump Grants Mining and Energy Firms Access to Public Lands, N.Y. Times (Jan. 16, 2021), https://www.nytimes.com/2020/12/19/us/politics/in-last-rush-trump-grants-mining-and-energy-firms-access-to-public-lands.html [https://perma.cc/F‌B3K-TZSR]; Lydia Millet, Selling off Apache Holy Land, N.Y. Times (May 29, 2015), https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html [https://per‌ma.cc/84DY-5ZN5].Show More Since Resolution intends to “tunnel below the ore, fracture it with explosives, and remove it from below,” any land above its mine will eventually collapse into a pit nearly two miles wide and 1,100 feet deep.13 13.Emergency Motion, supra note 2, at 12.Show More Oak Flat lies just outside the boundaries of San Carlos Apache Reservation, where trust obligations assumed by the federal government might have offered its cliffs and oaks and waters renewed protection.14 14.See United States v. Mitchell, 463 U.S. 206, 225–26 (1983) (recognizing that the federal government’s control over tribal resources may give rise to fiduciary duties, based on common law trust principles); Seminole Nation v. United States 316 U.S. 286, 296–97 (1942) (“In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.”).Show More Instead, the most sacred site in traditional Western Apache religion would be destroyed forever.15 15.Emergency Motion, supra note 2, at iii, 12–14 (“‘Mitigation measures cannot replace or replicate the tribal resources and traditional cultural properties that would be destroyed.’ As Apache Stronghold members testified, this would render their core religious practices impossible.” (quoting 3 U.S. Dep’t of Agric., Final Environmental Impact Statement: Resolution Copper Project and Land Exchange 856 (Jan. 2021), https://www.resolutionminee‌is.us/sites/default/files/feis/resolution-final-eis-vol-3.pdf [https://perma.cc/E3XW-8VU4])).Show More

Oak Flat is hardly the first Native American sacred site threatened with destruction or desecration.16 16.Throughout this Article, I use “Native American” and “Indian” interchangeably. While I acknowledge that these terms are imprecise, my intent is to locate within them the numerous and diverse peoples whose traditional homelands fall within the political borders of the United States, including federally recognized Indian tribes, state-recognized tribes, tribes seeking legal recognition, Alaska Natives, and Native Hawaiians. Each of these Native peoples has a unique history and legal relationship with the United States, though many share a common history of sacred site dispossession.Show More In 2020, Indian burial grounds were “blown up” during construction of the Mexico-United States border wall.17 17.See, e.g., Native Burial Sites Blown Up for US Border Wall, BBC News (Feb. 10, 2020, 3:24 AM), https://www.bbc.com/news/world-us-canada-51449739 [https://perma.cc/H4X5-CAMJ] (describing places of worship for the Tohono O’odham Nation near Organ Pipe Cactus National Monument in Arizona); see also Nina Lakhani, ‘That’s Genocide’: Ancient Tribal Graves Threatened by Trump Border Wall, The Guardian (Dec. 16, 2019, 9:37 AM), https://www.theguardian.com/environment/2019/dec/16/tribe-fights-to-save-ancestral-graves‌-in-the-path-of-trumps-border-wall [https://perma.cc/9RMW-8VQV] (discussing the threat to such places of worship months before their destruction).Show More Nor is Apache Stronghold v. United States18 18.38 F.4th 742 (9th Cir. 2022), aff’d en banc, 95 F.4th 608 (9th Cir. 2024), opinion modified on denial of reh’g, No. 21-15295, slip op. (9th Cir. May 14, 2024).Show More the first case to challenge such a threat on religious liberty grounds.19 19.See, e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1062–63 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988); Wilson v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983); Crow v. Gullet, 541 F. Supp. 785, 788 (D.S.D. 1982); Badoni v. Higginson, 638 F.2d 172, 175 (10th Cir. 1980); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1160 (6th Cir. 1980); Julie Watson, Tribe Says New Border Wall Harming Burial Sites; Sues Trump, Associated Press (Aug. 12, 2020, 4:38 PM), https://apnews.com/277668808d1209533cb2ae0ae5878599 [https://perma.‌cc/Q4RD-SGTC].Show More In 2018, Indian free exercise claims failed to protect an ancient stone altar and tribal burial grounds from government bulldozers, which a federal district court allowed for purposes of road expansion.20 20.See Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1 (D. Or. June 11, 2018); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2020 WL 8617636, at *17–18 (D. Or. Apr. 1, 2020); Slockish v. U.S. Dep’t of Transp., No. 21-35220, 2021 WL 5507413, at *1 (9th Cir. Nov. 24, 2021), cert. denied,144 S. Ct. 324 (2023); Maxine Bernstein, Tribal Members to Challenge Decision in Destruction of Sacred Burial Site, The Oregonian (Mar. 5, 2018, 3:34 PM), https://www.oregonlive.com/environment/2018/03/tribal‌_members_to_challenge_ju.html [https://perma.cc/MA5V-H7AU].Show More When confronting threats to their sacred sites, Native American communities stridently assert the free exercise protections of the First Amendment,21 21.U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”). The Establishment Clause and the Free Exercise Clause were likewise incorporated against the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause).Show More the federal Religious Freedom Restoration Act22 22.42 U.S.C. §§ 2000bb–2000bb-4 (2018).Show More (“RFRA”), and the Religious Land Use and Institutionalized Persons Act23 23.42 U.S.C. §§ 2000cc–2000cc-5 (2018).Show More (“RLUIPA”) against public authorities. Yet unlike religious liberty litigation involving non-Indian property—challenging, for example, zoning regulations that preclude the construction of a mosque,24 24.See, e.g., Albanian Associated Fund v. Twp. of Wayne, No. 06-cv-3217, 2007 WL 2904194, at *10 (D.N.J. Oct. 1, 2007) (“[O]ver the past 22 years, the Mosque’s congregation has grown from fewer than 100 individuals to over 200 families. ‘[Houses of worship] cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.’” (quoting Mintz v. Roman Cath. Bishop of Springfield, 424 F. Supp. 2d 309, 321 (D. Mass. 2006))).Show More or an eminent domain action against church summer camps25 25.See, e.g., United States v. 564.54 Acres of Land, 441 U.S. 506, 508 (1979) (involving camps taken from the Southeastern Pennsylvania Synod of the Lutheran Church in America); State Highway Dep’t v. Augusta Dist. of N. Ga. Conf. of Methodist Church, 154 S.E.2d 29, 30 (Ga. Ct. App. 1967) (allowing consequential damages for property taken from “a recreational and Christian training camp area for youth”).Show More—cases like Apache Stronghold seek to protect land that tribal faith communities do not themselves own. In fact, Native Americans rarely own the property upon which they seek to practice their religion; historic dispossession of tribal lands remains largely unremedied in the United States.26 26.See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1297 (2021); Kevin J. Worthen, Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience, 76 U. Colo. L. Rev. 989, 1007 (2005) [hereinafter Worthen, Eagle Feathers and Equality]. Historically, the federal government “justified” tribal land dispossession through legal doctrines upholding “‘the exclusive right of the United States to extinguish’ Indian title . . . by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941) (quoting Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 586 (1823)).Show More Because they lack an explicit ownership interest, Native Americans struggle to protect their sacred sites from destruction or desecration. Courts asked to weigh Indian religious liberty claims against non-Indian property claims always side with the landowner; since most sacred sites are located on land owned by the federal government, the government always wins.27 27.See Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1063 (2005) [hereinafter Carpenter, A Property Rights Approach to Sacred Sites Cases] (“[A] special problem that American Indians face in practicing their religious and cultural activities at sacred sites [is that] many Indian sacred sites are now located on lands owned by the federal government and the government has the legal power to destroy them.”); Barclay & Steele, supra note 26, at 1297 (“The problem is as follows: because tribes were divested of their traditional homelands by the government, Indigenous peoples are often placed in the difficult position of being beholden to the government to continue to engage in centuries-old practices and ceremonies.”); Fed. Agencies Task Force, American Indian Religious Freedom Act Report, at i (1979) (“Native American people have been denied access to sacred sites on federal lands for the purposes of worship. When they have gained access, they have often been disturbed during their worship by federal officials and the public. Sacred sites have been needlessly and thoughtlessly put to other uses which have desecrated them,” quoted in Barclay & Steele, supra note 26, at 1304 n.32).Show More

Courts rarely construe the free exercise of religion as a property right. Claims involving religious liberty and property rights remain largely incommensurate, particularly for Native American worshippers who struggle to prove a substantial burden on their religious practice. While courts interpret constitutional and statutory religious liberty protections to shield houses of worship from eminent domain, they often allow condemning authorities to take other properties owned by faith communities, including properties that faith communities consider integral to their religious missions.28 28.See Patrick E. Reidy, C.S.C., Note, Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L.J. 226, 235 (2020) (“While courts consistently protect those structures deemed necessary for religious devotion, for ritual prayer, and for worship, many church-owned parcels and buildings have been successfully condemned. Paradigmatically, courts will protect from eminent domain the religious sanctuary itself—that physical structure in which the faith community gathers for worship. But case law reflects that courts do allow condemning authorities to take other connected properties owned by the faith community—including parking lots and cemeteries, as well as camps and undeveloped parcels of land. These properties are taken even though they, like the religious sanctuary, are often integral to the community’s religious mission.” (footnotes omitted)).Show More In these “church takings” cases, courts frequently make judgments based on their own determinations of what counts as “essential” for faith communities’ free exercise of religion, imposing an inappropriate, judicial theology on religious property.29 29.Id. at 270 (“Decisions to block takings inside the sanctuary while allowing takings outside the sanctuary—all because of where and how courts believe religious exercise paradigmatically occurs—impose an inappropriate, judge-made theology on church property.”). When courts make judgments about religious property based on what they deem “essential” for faith communities’ free exercise of religion, they resolve theological questions that judges are not competent to answer, the very thing First Amendment jurisprudence forbids. See, e.g., Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (dismissing the district court’s misguided evaluation of an Islamic prisoner’s sincere religious exercise under RLUIPA’s “substantial burden” analysis); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 185–87 (2012) (summarizing cases that underscore the Court’s avoidance of “quintessentially religious controversies whose resolution the First Amendment commits exclusively to [church authorities]” (quoting Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 720 (1976))); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981))); Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990) (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”); Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice . . . is not to turn upon a judicial perception of the particular belief or practice in question . . . .”); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“[A] determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question . . . .”).Show More

In cases involving sacred sites, courts make similar judgments about what is “essential” to Native American religious practice.30 30.See, e.g., Wilson v. Block, 708 F.2d 735, 744 (D.C. Cir. 1983) (“[P]laintiffs seeking to restrict government land use in the name of religious freedom must, at a minimum, demonstrate that the government’s proposed land use would impair a religious practice that could not be performed at any other site.”); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1164 (6th Cir. 1980) (“Granting as we do that the individual [Cherokee] plaintiffs sincerely adhere to a religion which honors ancestors and draws its spiritual strength from feelings of kinship with nature, they have fallen short of demonstrating that worship at the particular geographic location in question is inseparable from the way of life (Yoder), the cornerstone of their religious observance (Frank), or plays the central role in their religious ceremonies and practices (Woody).”); Badoni v. Higginson, 455 F. Supp. 641, 646 (D. Utah 1977) (“Plaintiffs fail, however, to demonstrate in any manner a vital relationship of the [religious] practices in question with the Navajo way of life or a ‘history of consistency’ which would support their allegation of religious use of Rainbow Bridge . . . .”).Show More But unlike in church takings, courts largely overlook the property aspects of Indian claims to sacred sites. Courts focus on arguments that sound in Indian religious liberty, rather than property or quasi-property, only to frame their ultimate decision in terms of non-Indian ownership rights. Because Native American religious claimants lack an explicit ownership interest in their sacred sites, courts can—and consistently do—decide in favor of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion.31 31.See Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. 773, 823–33 (1997) (“[F]ederal courts have subordinated the free exercise rights of Native American plaintiffs to property rights.”); Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 270 (2012) (“[A]mong all the Native American cultural and religious issues, protection of sacred sites is the one area where Native Americans have enjoyed by far the least success.”); Marcia Yablon, Note, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623, 1634–38 (2004) (asserting that Lyng was correct, in part, because of the “inability of Western law and legal institutions to protect native land rights”).Show More The Supreme Court’s formulation of government ownership rights in Lyng v. Northwest Indian Cemetery Protective Association effectively bars most religious liberty arguments that Native Americans attempt to make in defense of their sacred sites: “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”32 32.485 U.S. 439, 453 (1988); e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. May 14, 2024) (en banc) (“Apache Stronghold asserts that the transfer of Oak Flat from the Government to Resolution Copper would ‘violate the Free Exercise Clause.’ This claim fails under the Supreme Court’s controlling decision in Lyng . . . .” (citation omitted)); see Carpenter, A Property Rights Approach to Sacred Sites Cases, supra note 27, at 1064.Show More

And yet, before the federal government claimed title to sacred sites like Oak Flat, the land belonged to Native American communities that used the land for their religious practice, in keeping with ancestral custom. This religious practice persisted through the government’s dispossession—by force, sale, or broken treaty—of each sacred site where use rights and preservation have been litigated.33 33.See, e.g., Apache Stronghold v. United States, 38 F.4th 742, 774 (9th Cir. 2022) (Berzon, J., dissenting); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1081 (9th Cir. 2008) (Fletcher, J., dissenting); Lyng, 485 U.S. at 459 (Brennan, J., dissenting); Sequoyah, 620 F.2d at 1162; Badoni, 638 F.2d at 177.Show More Where Native American religious claimants can demonstrate sacred land use that has persisted through dispossession, that flows from intergenerational traditions uniting past and present, their religious practice at sacred sites gives evidence of more than free exercise interests. They affirm the possibility of use rights in sacred sites—a kind of “sacred easement” over government land.

Framed in terms of property, and not solely religious liberty, claims for Native American sacred use rights can prove effective. When the Zuni Tribe sought access to a path across private lands for making sacred pilgrimage—a 110-mile trek from their reservation in New Mexico to Zuni Heaven in Arizona, completed by tribal religious leaders on horseback every four years, as early as 1540—it sued for a prescriptive easement, in addition to seeking relief under the First Amendment.34 34.United States ex rel. Zuni Tribe of N.M. v. Platt, 730 F. Supp. 318, 319–20, 324 (D. Ariz. 1990). The Tribe knew that limitations imposed be Lyng, decided two years earlier, could scuttle their case. See Kristen A. Carpenter, In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619, 629 (2003) [hereinafter Carpenter, In the Absence of Title].Show More The court granted the easement, finding that the tribe’s use of the path demonstrated actual, hostile, open and notorious, and continuous and uninterrupted use for the statutory period.35 35.Platt, 730 F. Supp.at 323–24.Show More Evidence of the Zuni pilgrims’ “religious purposes” was admitted “only to the extent it demonstrated when and how the land in question was used.”36 36.Id. at 324 (“In reaching its decision, the Court does not base its ruling on any religious or 1st Amendment rights to the land in question.”).Show More Tribal pilgrims would be free to use the path every four years, unimpeded in their journey to Zuni Heaven.

The federal government can allow similar claims for use rights over public land.37 37.See discussion infra Section II.B.Show More Under the Supreme Court’s precedent in United States v. Winans, courts have recognized the servitudes that provide for treaty-reserved rights in practices central to Native American religion and culture, including fishing and hunting.38 38.See United States v. Winans, 198 U.S. 371, 381 (1905) (“[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular parcels of land, and could not be expressed in deeds as dealings between private individuals. The reservations were in large areas of territory and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein.”); see also id. at 381–82(“The contingency of the future ownership of lands, therefore, was foreseen and provided for—in other words, the Indians were given a right in the land . . . . And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.”).Show More But nineteenth-century treaties, negotiated against the backdrop of federal policies designed to suppress Indian religious beliefs, practices, language, and identity, are predictably silent on reserved use rights in sacred sites.39 39.See Dussias, supra note 31, at 823–33; Barclay & Steele, supra note 26, at 1307–17.Show More Were tribes in an equal bargaining position with the federal government, tribes’ failure to reserve explicit land use rights in their sacred sites would seem implausible, given evidence of persistent religious practice involving those sites. Such sacred property interests were “part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed.”40 40.Winans, 198 U.S. at 381.Show More Their absence from treaties negotiated between tribes and the United States evidences a certain defect in title to sacred sites located on public land.

The federal government has done nothing to cure this defect in title—which it created during the nineteenth century—and done “little of consequence to protect the ability of tribes to access and preserve sacred sites,” despite its “assertion of sweeping plenary power over Indian affairs.”41 41.Barclay & Steele, supra note 26, at 1297.Show More Under Lyng, federal courts continue to allow Native American sacred sites to be desecrated and destroyed. Following the U.S. Court of Appeals for the Ninth Circuit’s decision in Apache Stronghold, Oak Flat may suffer the same fate.42 42.In June 2022, the Ninth Circuit affirmed an Arizona district court’s denial of Apache Stronghold’s motion for a preliminary injunction “seeking to stop the Land Exchange and prevent any copper mining” beneath Oak Flat. Apache Stronghold v. United States, 38 F.4th 742, 748 (9th Cir. 2022). The Ninth Circuit reheard Apache Stronghold en banc and (again) affirmed the district court in March 2024; the court subsequently issued an amended opinion in May 2024 with minor edits. Apache Stronghold v. United States, 95 F.4th 608, 614 (9th Cir.) (en banc), opinion modified on denial of reh’g, No. 21-15295, slip op. at 15 (9th Cir. May 14, 2024) (holding that “Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under [Lyng]”).Show More The Court’s religious liberty precedent leaves many sacred sites effectively unprotected.43 43.See discussion infra Section I.B.Show More

This Article proposes a new approach, rooted in property law. It argues that Native American religious practice at sacred sites may have created circumstances under which tribal easements arose by force of law. Before the federal government severed their ancestral lands, Native American tribes used certain inherently sacred parts of their territory regularly, necessarily, and predictably for their religious practice. Where Native American claimants can demonstrate such persistent sacred land uses, their religious practice can provide the kind of secular evidence courts typically consider in defining easements. An easement arising by force of law—by prescription, customary claim, or implication—would allow their tribes to exercise an ownership interest in their sacred sites, rather than assert an access right that can be balanced against another owner’s right to exclude.

This Article also argues that Congress can, and should, create a statutory property right for tribes to claim an explicit ownership interest in their sacred sites—easements corresponding to their sacred land use.44 44.Of course, the federal government could transfer its entire ownership interest in sacred sites to tribal communities, a kind of fee simple reparation for centuries of tribal land dispossession. See, e.g., Return of the Blue Lake Act, Pub. L. No. 91-550, 84 Stat. 1437 (1970) (returning 48,000 acres in northern New Mexico to Taos Pueblo, including their sacred Blue Lake); In Observance of the 50th Anniversary of the Blue Lake Bill H.R. 471, Richard Nixon Museum & Libr., https://www.nixonlibrary.gov/observance-50th-anniversary-blue-lake-bill-hr-471 [https://perma.cc/SDA8-3382] (last visited Feb. 26, 2024). But absent political will for this kind of restoration, the government could also divide its property rights such that tribes gain a nonpossessory ownership interest in their sacred sites.Show More Modeled on conservation easements, these nonpossessory ownership interests would preserve sacred sites for Native American religious practice.45 45.See Unif. Conservation Easement Act § 1(1) (amended 2007), 12 U.L.A. 174 (1981).Show More By statute, Congress would not only create a forum for adjudicating tribal claims against the United States (e.g., the Court of Federal Claims), but also permit the federal government to divide its property rights in public lands at those particular places that tribes continue to hold sacred.46 46.Congress created a similar jurisdictional act in response to the Sioux Nation’s claim that the federal government took their sacred Black Hills without just compensation, in violation of the Fifth Amendment. See United States v. Sioux Nation of Indians, 448 U.S. 371, 384–91 (1980); Barclay & Steele, supra note 26, at 1314 (describing the Black Hills, Paha Sapa, “as ‘the heart of everything that is’ and the womb of Mother Earth,” held “sacred to the Lakota” (citation omitted)). The statute allowed “claims against the United States ‘under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band.’” Sioux Nation, 448 U.S. at 384 (quoting Act of June 3, 1920, ch. 222, 41 Stat. 738).Show More Tribes granted “sacred easements” could monitor—and, if necessary, constrain—both present and future uses of government-owned lands, ensuring compliance with the needs of their religious practice without barring public access to sacred sites.

Divided property rights can help Native American faith communities and the government assuage fears of mutual exclusion from sacred sites located on federal land. By allowing tribes to claim sacred land use easements in their ancestral territory, the federal government can help to cure lingering defects in title created by tribal land acquisition efforts during the nineteenth century. Sacred easements accord with the federal government’s trust responsibility for tribal religious exercise. Historic federal efforts to suppress Native religions—many of which ran afoul of the Establishment Clause—warrant present federal accommodation of Native sacred land use.47 47.See Dussias, supra note 31, at 787–805 (describing efforts by the federal government to suppress various Native American ceremonial dances).Show More

This Article is organized as follows. Part I considers how courts have located Native American sacred sites outside of federal protections for religious exercise. While exploring the unique significance of these sites for traditional Native American religious practice, it reviews constitutional and statutory religious liberty protections relevant to sacred sites. Part II elaborates on the argument for implying easements from sacred land use. After offering a historical overview of federal land acquisition from Native American tribes, it discusses the development of reserved use rights in tribal lands. It then maps the doctrine of easements implied from quasi-easements onto sacred land use, suggesting how tribal religious practices at sacred sites functioned as quasi-easements before the federal government severed tribes’ ancestral territory. Finally, Part III describes the private law structure of statutory sacred easements, addressing concerns about the “right to exclude” non-Indian activity from sacred sites. It concludes by showing how sacred easements accord with the federal government’s trust responsibility for Native American religious exercise.

  1.  485 U.S. 439, 452–53 (1988). ↑
  2.  Emergency Motion for an Injunction Pending Appeal Under Circuit Rule 27-3 at 1, Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022) (No. 21-15295) [hereinafter Emergency Motion]. ↑
  3.  Id. at 3–4 (“Oak Flat [is] a 6.7-square-mile traditional cultural property between Apache Leap on the west and Ga’an Canyon (called Devil’s Canyon by non-Indians) on the east.”); Zinaida Carroll, The Spiritual Connection of Indigenous Women to the Land and its Crucial Role in the Apache’s Battle for Sovereignty, Nat’l Indigenous Women’s Res. Ctr., https://www.niwrc.org/restoration-magazine/june-2021/oak-flat-chichil-bildagoteel [https://p‌erma.cc/MFW3-NLY2] (last visited Feb. 26, 2024). ↑
  4.  Emergency Motion, supra note 2, at 3. ↑
  5.  Id. (citation omitted). ↑
  6.  Id. at 5. As the Emergency Motion explained, “Central to this connection [between Apaches and the Creator] are the Ga’an, who are ‘guardians’ and ‘messengers’ between the Creator and people in the physical world—roughly comparable to angels in Christianity. Usen [the Creator] . . . created specific ‘blessed places’ for the Ga’an to dwell. One of the most important of the Ga’an dwelling places is Oak Flat . . . .” (citations omitted). Id. at 3. Chi’chil Biłdagoteel holds significant cultural and spiritual meaning for many Native American tribes, including the San Carlos Apache, Tonto Apache, White Mountain Apache, Yavapai Apache, Zuni, Hopi, Yavapai Prescott Indian Tribe, Gila River Indian Community, and Saltwater Pima Maricopa Indian Community. Carroll, supra note 3. ↑
  7.  See Declaration of Cranston Hoffman Jr. at 2–3, Apache Stronghold v. United States, 519 F. Supp. 3d 591 (D. Ariz. 2021) (No. 21-15295) [hereinafter Declaration]. ↑
  8.  Emergency Motion, supra note 2, at 5. ↑
  9.  Id. (citation omitted). Beyond the gathering of medicinal plants, animals, minerals, and spring water, Apache religious practices at Oak Flat include the Sunrise Ceremony, Holy Ground ceremonies, and sweat lodge ceremonies. See id. at 6–8 (describing the Sunrise Ceremony). ↑
  10.  Id. at 5 (internal quotation marks omitted) (citation omitted). ↑
  11.  President Eisenhower reserved 760 acres of Oak Flat for “public purposes” to protect it from mining in 1955. Reserving Lands Within National Forests for Use of the Forest Service as Camp Grounds, Recreation Areas, or for Other Public Purposes, 20 Fed. Reg. 7336, 7336–37 (Oct. 1, 1955) (referred to by the Department of the Interior as Public Land Order 1229). President Nixon renewed that protection in 1971. Modification of Public Land Order 1229, 36 Fed. Reg. 19029, 19029 (Sept. 25, 1971) (Public Land Order 5132). The National Park Service eventually placed Oak Flat in the National Register of Historic Places: “Chi’chil Biłdagoteel is an important feature of the Western Apache landscape as a sacred site, as a source of supernatural power, and as a staple in their traditional lifeway.” Emergency Motion, supra note 2, at 10 (quoting Chi’chil Biłdagoteel Historic District, Traditional Cultural Property, Nat’l Reg. of Historic Places Registration Form, at 8 (Dec. 2, 2015), https://www.resolution‌mineeis.us/sites/default/files/references/nez-2016.pdf [https://perma.cc/8HGZ-VTCB]). ↑
  12.  See Eric Lipton, In Last Rush, Trump Grants Mining and Energy Firms Access to Public Lands, N.Y. Times (Jan. 16, 2021), https://www.nytimes.com/2020/12/19/us/politics/in-last-rush-trump-grants-mining-and-energy-firms-access-to-public-lands.html [https://perma.cc/F‌B3K-TZSR]; Lydia Millet, Selling off Apache Holy Land, N.Y. Times (May 29, 2015), https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html [https://per‌ma.cc/84DY-5ZN5]. ↑
  13.  Emergency Motion, supra note 2, at 12. ↑
  14.  See United States v. Mitchell, 463 U.S. 206, 225–26 (1983) (recognizing that the federal government’s control over tribal resources may give rise to fiduciary duties, based on common law trust principles); Seminole Nation v. United States 316 U.S. 286, 296–97 (1942) (“In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.”). ↑
  15.  Emergency Motion, supra note 2, at iii, 12–14 (“‘Mitigation measures cannot replace or replicate the tribal resources and traditional cultural properties that would be destroyed.’ As Apache Stronghold members testified, this would render their core religious practices impossible.” (quoting 3 U.S. Dep’t of Agric., Final Environmental Impact Statement: Resolution Copper Project and Land Exchange 856 (Jan. 2021), https://www.resolutionminee‌is.us/sites/default/files/feis/resolution-final-eis-vol-3.pdf [https://perma.cc/E3XW-8VU4])). ↑
  16.  Throughout this Article, I use “Native American” and “Indian” interchangeably. While I acknowledge that these terms are imprecise, my intent is to locate within them the numerous and diverse peoples whose traditional homelands fall within the political borders of the United States, including federally recognized Indian tribes, state-recognized tribes, tribes seeking legal recognition, Alaska Natives, and Native Hawaiians. Each of these Native peoples has a unique history and legal relationship with the United States, though many share a common history of sacred site dispossession. ↑
  17.  See, e.g., Native Burial Sites Blown Up for US Border Wall, BBC News (Feb. 10, 2020, 3:24 AM), https://www.bbc.com/news/world-us-canada-51449739 [https://perma.cc/H4X5-CAMJ] (describing places of worship for the Tohono O’odham Nation near Organ Pipe Cactus National Monument in Arizona); see also Nina Lakhani, ‘That’s Genocide’: Ancient Tribal Graves Threatened by Trump Border Wall, The Guardian (Dec. 16, 2019, 9:37 AM), https://www.theguardian.com/environment/2019/dec/16/tribe-fights-to-save-ancestral-graves‌-in-the-path-of-trumps-border-wall [https://perma.cc/9RMW-8VQV] (discussing the threat to such places of worship months before their destruction). ↑
  18.  38 F.4th 742 (9th Cir. 2022), aff’d en banc, 95 F.4th 608 (9th Cir. 2024), opinion modified on denial of reh’g, No. 21-15295, slip op. (9th Cir. May 14, 2024). ↑
  19.  See, e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1062–63 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988); Wilson v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983); Crow v. Gullet, 541 F. Supp. 785, 788 (D.S.D. 1982); Badoni v. Higginson, 638 F.2d 172, 175 (10th Cir. 1980); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1160 (6th Cir. 1980); Julie Watson, Tribe Says New Border Wall Harming Burial Sites; Sues Trump, Associated Press (Aug. 12, 2020, 4:38 PM), https://apnews.com/277668808d1209533cb2ae0ae5878599 [https://perma.‌cc/Q4RD-SGTC]. ↑
  20.  See Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1 (D. Or. June 11, 2018); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2020 WL 8617636, at *17–18 (D. Or. Apr. 1, 2020); Slockish v. U.S. Dep’t of Transp., No. 21-35220, 2021 WL 5507413, at *1 (9th Cir. Nov. 24, 2021), cert. denied, 144 S. Ct. 324 (2023); Maxine Bernstein, Tribal Members to Challenge Decision in Destruction of Sacred Burial Site, The Oregonian (Mar. 5, 2018, 3:34 PM), https://www.oregonlive.com/environment/2018/03/tribal‌_members_to_challenge_ju.html [https://perma.cc/MA5V-H7AU]. ↑
  21.  U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”). The Establishment Clause and the Free Exercise Clause were likewise incorporated against the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause). ↑
  22.  42 U.S.C. §§ 2000bb–2000bb-4 (2018). ↑
  23.  42 U.S.C. §§ 2000cc–2000cc-5 (2018). ↑
  24.  See, e.g., Albanian Associated Fund v. Twp. of Wayne, No. 06-cv-3217, 2007 WL 2904194, at *10 (D.N.J. Oct. 1, 2007) (“[O]ver the past 22 years, the Mosque’s congregation has grown from fewer than 100 individuals to over 200 families. ‘[Houses of worship] cannot function without physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.’” (quoting Mintz v. Roman Cath. Bishop of Springfield, 424 F. Supp. 2d 309, 321 (D. Mass. 2006))). ↑
  25.  See, e.g., United States v. 564.54 Acres of Land, 441 U.S. 506, 508 (1979) (involving camps taken from the Southeastern Pennsylvania Synod of the Lutheran Church in America); State Highway Dep’t v. Augusta Dist. of N. Ga. Conf. of Methodist Church, 154 S.E.2d 29, 30 (Ga. Ct. App. 1967) (allowing consequential damages for property taken from “a recreational and Christian training camp area for youth”). ↑
  26.  See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1297 (2021); Kevin J. Worthen, Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience, 76 U. Colo. L. Rev. 989, 1007 (2005) [hereinafter Worthen, Eagle Feathers and Equality]. Historically, the federal government “justified” tribal land dispossession through legal doctrines upholding “‘the exclusive right of the United States to extinguish’ Indian title . . . by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941) (quoting Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 586 (1823)). ↑
  27.  See Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1063 (2005) [hereinafter Carpenter, A Property Rights Approach to Sacred Sites Cases] (“[A] special problem that American Indians face in practicing their religious and cultural activities at sacred sites [is that] many Indian sacred sites are now located on lands owned by the federal government and the government has the legal power to destroy them.”); Barclay & Steele, supra note 26, at 1297 (“The problem is as follows: because tribes were divested of their traditional homelands by the government, Indigenous peoples are often placed in the difficult position of being beholden to the government to continue to engage in centuries-old practices and ceremonies.”); Fed. Agencies Task Force, American Indian Religious Freedom Act Report, at i (1979) (“Native American people have been denied access to sacred sites on federal lands for the purposes of worship. When they have gained access, they have often been disturbed during their worship by federal officials and the public. Sacred sites have been needlessly and thoughtlessly put to other uses which have desecrated them,” quoted in Barclay & Steele, supra note 26, at 1304 n.32). ↑
  28.  See Patrick E. Reidy, C.S.C., Note, Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L.J. 226, 235 (2020) (“While courts consistently protect those structures deemed necessary for religious devotion, for ritual prayer, and for worship, many church-owned parcels and buildings have been successfully condemned. Paradigmatically, courts will protect from eminent domain the religious sanctuary itself—that physical structure in which the faith community gathers for worship. But case law reflects that courts do allow condemning authorities to take other connected properties owned by the faith community—including parking lots and cemeteries, as well as camps and undeveloped parcels of land. These properties are taken even though they, like the religious sanctuary, are often integral to the community’s religious mission.” (footnotes omitted)). ↑
  29.  Id. at 270 (“Decisions to block takings inside the sanctuary while allowing takings outside the sanctuary—all because of where and how courts believe religious exercise paradigmatically occurs—impose an inappropriate, judge-made theology on church property.”). When courts make judgments about religious property based on what they deem “essential” for faith communities’ free exercise of religion, they resolve theological questions that judges are not competent to answer, the very thing First Amendment jurisprudence forbids. See, e.g., Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (dismissing the district court’s misguided evaluation of an Islamic prisoner’s sincere religious exercise under RLUIPA’s “substantial burden” analysis); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 185–87 (2012) (summarizing cases that underscore the Court’s avoidance of “quintessentially religious controversies whose resolution the First Amendment commits exclusively to [church authorities]” (quoting Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 720 (1976))); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981))); Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990) (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”); Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice . . . is not to turn upon a judicial perception of the particular belief or practice in question . . . .”); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“[A] determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question . . . .”). ↑
  30.  See, e.g., Wilson v. Block, 708 F.2d 735, 744 (D.C. Cir. 1983) (“[P]laintiffs seeking to restrict government land use in the name of religious freedom must, at a minimum, demonstrate that the government’s proposed land use would impair a religious practice that could not be performed at any other site.”); Sequoyah v. Tenn. Valley Auth., 620 F.2d 1159, 1164 (6th Cir. 1980) (“Granting as we do that the individual [Cherokee] plaintiffs sincerely adhere to a religion which honors ancestors and draws its spiritual strength from feelings of kinship with nature, they have fallen short of demonstrating that worship at the particular geographic location in question is inseparable from the way of life (Yoder), the cornerstone of their religious observance (Frank), or plays the central role in their religious ceremonies and practices (Woody).”); Badoni v. Higginson, 455 F. Supp. 641, 646 (D. Utah 1977) (“Plaintiffs fail, however, to demonstrate in any manner a vital relationship of the [religious] practices in question with the Navajo way of life or a ‘history of consistency’ which would support their allegation of religious use of Rainbow Bridge . . . .”). ↑
  31.  See Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. 773, 823–33 (1997) (“[F]ederal courts have subordinated the free exercise rights of Native American plaintiffs to property rights.”); Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 270 (2012) (“[A]mong all the Native American cultural and religious issues, protection of sacred sites is the one area where Native Americans have enjoyed by far the least success.”); Marcia Yablon, Note, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623, 1634–38 (2004) (asserting that Lyng was correct, in part, because of the “inability of Western law and legal institutions to protect native land rights”). ↑
  32.  485 U.S. 439, 453 (1988); e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. May 14, 2024) (en banc) (“Apache Stronghold asserts that the transfer of Oak Flat from the Government to Resolution Copper would ‘violate the Free Exercise Clause.’ This claim fails under the Supreme Court’s controlling decision in Lyng . . . .” (citation omitted)); see Carpenter, A Property Rights Approach to Sacred Sites Cases, supra note 27, at 1064. ↑
  33.  See, e.g., Apache Stronghold v. United States, 38 F.4th 742, 774 (9th Cir. 2022) (Berzon, J., dissenting); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1081 (9th Cir. 2008) (Fletcher, J., dissenting); Lyng, 485 U.S. at 459 (Brennan, J., dissenting); Sequoyah, 620 F.2d at 1162; Badoni, 638 F.2d at 177. ↑
  34.  United States ex rel. Zuni Tribe of N.M. v. Platt, 730 F. Supp. 318, 319–20, 324 (D. Ariz. 1990). The Tribe knew that limitations imposed be Lyng, decided two years earlier, could scuttle their case. See Kristen A. Carpenter, In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases, 37 New Eng. L. Rev. 619, 629 (2003) [hereinafter Carpenter, In the Absence of Title]. ↑
  35.  Platt, 730 F. Supp. at 323–24. ↑
  36.  Id. at 324 (“In reaching its decision, the Court does not base its ruling on any religious or 1st Amendment rights to the land in question.”). ↑
  37.  See discussion infra Section II.B. ↑
  38.  See United States v. Winans, 198 U.S. 371, 381 (1905) (“[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular parcels of land, and could not be expressed in deeds as dealings between private individuals. The reservations were in large areas of territory and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein.”); see also id. at 381–82 (“The contingency of the future ownership of lands, therefore, was foreseen and provided for—in other words, the Indians were given a right in the land . . . . And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.”). ↑
  39.  See Dussias, supra note 31, at 823–33; Barclay & Steele, supra note 26, at 1307–17. ↑
  40.  Winans, 198 U.S. at 381. ↑
  41.  Barclay & Steele, supra note 26, at 1297. ↑
  42.  In June 2022, the Ninth Circuit affirmed an Arizona district court’s denial of Apache Stronghold’s motion for a preliminary injunction “seeking to stop the Land Exchange and prevent any copper mining” beneath Oak Flat. Apache Stronghold v. United States, 38 F.4th 742, 748 (9th Cir. 2022). The Ninth Circuit reheard Apache Stronghold en banc and (again) affirmed the district court in March 2024; the court subsequently issued an amended opinion in May 2024 with minor edits. Apache Stronghold v. United States, 95 F.4th 608, 614 (9th Cir.) (en banc), opinion modified on denial of reh’g, No. 21-15295, slip op. at 15 (9th Cir. May 14, 2024) (holding that “Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under [Lyng]”). ↑
  43.  See discussion infra Section I.B. ↑
  44.  Of course, the federal government could transfer its entire ownership interest in sacred sites to tribal communities, a kind of fee simple reparation for centuries of tribal land dispossession. See, e.g., Return of the Blue Lake Act, Pub. L. No. 91-550, 84 Stat. 1437 (1970) (returning 48,000 acres in northern New Mexico to Taos Pueblo, including their sacred Blue Lake); In Observance of the 50th Anniversary of the Blue Lake Bill H.R. 471, Richard Nixon Museum & Libr., https://www.nixonlibrary.gov/observance-50th-anniversary-blue-lake-bill-hr-471 [https://perma.cc/SDA8-3382] (last visited Feb. 26, 2024). But absent political will for this kind of restoration, the government could also divide its property rights such that tribes gain a nonpossessory ownership interest in their sacred sites. ↑
  45.  See Unif. Conservation Easement Act § 1(1) (amended 2007), 12 U.L.A. 174 (1981). ↑
  46.  Congress created a similar jurisdictional act in response to the Sioux Nation’s claim that the federal government took their sacred Black Hills without just compensation, in violation of the Fifth Amendment. See United States v. Sioux Nation of Indians, 448 U.S. 371, 384–91 (1980); Barclay & Steele, supra note 26, at 1314 (describing the Black Hills, Paha Sapa, “as ‘the heart of everything that is’ and the womb of Mother Earth,” held “sacred to the Lakota” (citation omitted)). The statute allowed “claims against the United States ‘under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band.’” Sioux Nation, 448 U.S. at 384 (quoting Act of June 3, 1920, ch. 222, 41 Stat. 738). ↑

  47.  See Dussias, supra note 31, at 787–805 (describing efforts by the federal government to suppress various Native American ceremonial dances). ↑

Reconsidering The Legal Definition of Gambling: A Resuscitation of the Gambling Instinct Test

The modern chance-based test for gambling is fundamentally flawed. It is descriptively inaccurate, difficult to apply, and easily circumvented. Despite these shortcomings, the test is by-and-large the only test employed for the identification of gambling activity. But this was not always the case. In the first part of the twentieth century, some courts employed a competing test that looked to the underlying psychological phenomenon rather than the mechanical form of the activity. This Note advocates for a re-adoption of that test. The modern test, originally put forth as the definition of a lottery, was never intended to be a test for gambling. Over time, courts warped this definition to the point where many forms of gambling could reasonably be deemed a “lottery,” blurring the distinctions between gambling and lotteries to such a degree that some states’ highest courts have held that the two terms are synonymous.

The competing test—referred to by modern academics as “the Gambling Instinct Test”—has been understudied and mischaracterized by the literature. Admittedly, the decisions applying the test were unstructured in their analysis; however, closer examination of those cases reveals that the test can be distilled into two steps: (1) whether there exists a contingent contract, and (2) whether the prospect of receiving a return of disproportionate value induced the gambling party into conveying her consideration. As so refined, resuscitation of the Gambling Instinct Test would bring the legal doctrine in lockstep with medical conceptions of gambling. Given the explosion of gambling activity in recent years, such a change has never been more necessary.

Introduction

As one of the traditional vices, gambling has long been regulated by governments.1 1.See Nat’l Inst. L. Enf’t & Crim. Just., U.S. Dep’t of Just., The Development of the Law of Gambling: 1776–1976, at 4–13 (1977) [hereinafter Development of the Law of Gambling].Show More During the post-medieval period in England, gambling in and of itself was not unlawful, but the law tried to address its collateral consequences, such as the disruption of the public peace and members of the aristocracy gambling away their estates.2 2.Id. at 39–41, 240.Show More In early colonial America, the justification for and degree of regulation varied widely, from the wholesale condemnation of gambling as a form of idleness in Puritan Massachusetts, to more permissive laws in the southern colonies that only dealt with the evils of gambling as they arose.3 3.See I. Nelson Rose, Gambling and the Law: The Third Wave of Legal Gambling, 17 Vill. Sports & Ent. L.J. 361, 368–74 (2010).Show More Since those early days, gambling has twice gone through cycles of legalization and prohibition.4 4.Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1481 (2018). Thirty-six states and the District of Columbia have legalized sports betting since that decision, and a number of other states are currently in the process of legalization. Will Yakowicz, Where Is Sports Betting Legal? A Guide to All 50 States, Forbes (Jan. 9, 2023, 12:48 PM), https://www.forbes.com/sites/willyakowicz/2022/01/07/where-is-sports-betting-legal-americ‌a-2022/ [https://perma.cc/Y67H-4SNL].Show More Given the rapid legalization of sports betting at the state level that has occurred in the years following the Supreme Court’s landmark decision that a federal statute’s prohibition on state authorization of sports betting violated the anti-commandeering principle,5 5.See Rose, supra note 4, at 374–75 (tracing the third wave of legal gambling back to the early 1930s).Show More we appear to be approaching the crest of what one prominent gambling law scholar terms “the third wave of legal gambling.”6 6.Roland J. Santoni, An Introduction to Nebraska Gaming Law, 29 Creighton L. Rev. 1123, 1129 (1996) (citing examples of such cases from a number of states); D.A. Norris, Annotation, What Are Games of Chance, Games of Skill, and Mixed Games of Chance and Skill, 135 A.L.R. 104, 107 (1941) (“In construing statutes or ordinances prohibiting gaming, gambling, or gambling devices wherein nothing is said about chance or a game of chance or skill, many courts have required, inter alia, the element of chance to be involved.”).Show More

Although gambling in the modern-day United States is primarily defined by statute, courts, “concerned that clever operators would find ways to subvert the [statutory] prohibitions,” have frequently held that a game or activity constituted gambling if the three elements of the common law definition—Prize/Chance/Consideration—were present.7 7.See, e.g., N.J. Stat. Ann. § 2C:37-1(b) (West 2023).Show More Many modern state statutes now utilize this definition, often with slight variations.8 8.See 347 U.S. 284, 290 (1954).Show More However, this definition should not apply to all forms of gambling—nor was it originally intended to. The case most often cited in support for this definition, FCC v. American Broadcasting Co., was defining a “lottery, gift enterprise, or similar scheme,” not gambling writ large.9 9.See, e.g., Phalen v. Virginia, 49 U.S. (8 How.) 163, 168 (1850) (“Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries.”).Show More Historically, lotteries have been recognized as a distinct form of gambling, not as an interchangeable term.10 10.Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define the Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. 383, 390–91 (2009) [hereinafter Cabot et al., Mixed Skill and Chance]; Anthony N. Cabot & Louis V. Csoka, The Games People Play: Is It Time for a New Legal Approach to Prize Games?, 4 Nev. L.J. 197, 202 (Winter 2003–2004) [hereinafter Cabot & Csoka, The Games People Play].Show More Accordingly, in using this definition to evaluate all forms of gambling, courts have stretched and twisted the three elements in order to fit their intuitions of whether a gambling-like activity should be prohibited or not.

Chance is the most consistently problematic element from this definitional framework. The prevailing test for the chance element is the Dominant Factor Test: if the winner is determined predominantly by chance, as opposed to skill, then the activity is gambling.11 11.For instance, Haralabos Voulgaris has made millions as both a professional sports bettor and poker player, and he parlayed his success using statistical models in sports gambling into becoming the Director of Quantitative Research and Development for the Dallas Mavericks. See Marton, Haralabos Voulgaris’s Life: Biggest Profits, Losses, Private Life & Net Worth, So Much Poker (Aug. 20, 2020), https://somuchpoker.com/haralabos-voulgaris-life-biggest-profits-losses-private-life-net-worth/ [https://perma.cc/Z9CU-JKNQ].Show More Although appealing at first glance, the chance/skill dichotomy is a nebulous concept. Various paradigmatic forms of gambling, such as poker and sports wagering, have such a material skill component that highly skilled gamblers have been able to make a substantial living off of their pursuits.12 12.See Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 87 (Nev. 1961).Show More On the other hand, certain “games of skill”—such as common carnival games or hole-in-one contests—can be structured so as to create games where the luck component predominates over the skill component, even for the most skilled participants.13 13.See, e.g., Indoor Recreation Enters. v. Douglas, 235 N.W.2d 398, 400–01 (Neb. 1975) (upholding a ruling that chess and checkers—paradigmatic examples of games of skill—are games of chance).Show More Even outside of these edge cases, the chance element has proved to be sufficiently confusing for courts in the analog context.14 14.See Yash Nair, What Does RNG Mean in Gaming?, DOT Esports (July 12, 2022, 11:16 AM), https://dotesports.com/general/news/what-does-rng-mean-in-gaming [https://perma.cc/H2DH-XLU7] (describing how video games use random number generators in which an algorithm decides a number value that determines certain in-game outcomes).Show More Given the importance of random number generation to the outcome of e‑sports contests, the chance element is bound to cause even greater confusion in the coming years.15 15.Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Economic Value, Equal Dignity and the Future of Sweepstakes, 1 UNLV Gaming L.J. 1, 10–15 (2010) [hereinafter Cabot et al., Future of Sweepstakes] (citing FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954)).Show More

The other two elements, consideration and prize, have seen difficulties as well. Although consideration is a well‑defined concept in contract law, the Supreme Court in FCC v. American Broadcasting Co. departed from the so-called “contract theory” of consideration in favor of what is now referred to as the Economic Value Test, which many states have subsequently adopted.16 16.See Cabot et al., Future of Sweepstakes, supra note 16, at 23–36.Show More There has been continual debate and disagreement over how to evaluate non-monetary consideration and the possibility of free entry under this test.17 17.See Mark D. Griffiths, Is the Buying of Loot Boxes in Video Games a Form of Gambling or Gaming?, 22 Gaming L.R. 52, 53 (2018). The loot box mechanism works as follows: “Players use real money to buy virtual in-game items and can redeem such items by buying keys to open the boxes where they receive a chance selection of further virtual items.” Id. at 52.Show More Prize has come under less scrutiny historically, but has recently come to the forefront in the debate over whether video game loot boxes should be considered gambling schemes.18 18.U.K. Gambling Commission, Virtual Currencies, eSports and Social Casino Gaming – Position Paper ¶ 3(17)–(18) (2017), https://assets.ctfassets.net/j16ev64qyf6l/4A644HIpG1‌g2ymq11HdPOT/ca6272c45f1b2874d09eabe39515a527/Virtual-currencies-eSports-and-soci‌al-casino-gaming.pdf [https://perma.cc/2HL8-E9FX] (“Where prizes are successfully restricted for use solely within the game, such in-game features would not be licensable gambling, notwithstanding the elements of expenditure and chance.”).Show More The U.K. Gambling Commission declined to designate these loot boxes as a form of gambling because they did not view the in-game items awarded as prizes to have any real-life value outside of the game.19 19.The Federalist No. 37, at 180 (James Madison) (George W. Carey & James McClellan eds., 2001).Show More Though the current definition of gambling can be summed up in a pithy phrase, its application in practice misses the forest for the trees.

A critical threshold in any system of regulation is the identification of the regulated activity. The modern application of Prize/Chance/Consideration has often resulted in normative policy judgments being made simultaneously with the classification of the activity—a fundamental misstep. Although we may now find that the outright prohibition of vices like gambling creates more harms than it prevents, we, as James Madison once warned, “ought not to assume an infallibility in rejudging the fallible opinions of others.”20 20.See Cabot et al., Mixed Skill and Chance, supra note 11, at 393–94.Show More Separating classification from moralization would better allow a regulatory scheme to adjust to changes in information, custom, and societal attitudes.

In lieu of the modern framework, this Note advocates for a modern revitalization of the Gambling Instinct Test, which simply looks to whether the activity in question triggers one’s gambling instinct.21 21.See Jim Leitzel, Regulating Vice, in The Handbook of Deviance 45, 46 (Erich Goode ed., 2015).Show More The Gambling Instinct Test is a superior doctrine because it homes in on the central harm‑causing mechanism of gambling. Like other vices, gambling is “prone to excess” and “particularly likely to compromise rational decision-making,” even amongst non-addicted adults.22 22.213 N.W. 335, 339 (Wis. 1927).Show More As described in City of Milwaukee v. Johnson:

The machine makes an appeal to the gambling instinct, because the player has constantly before him the chance that the next play will assure him of the right on the next succeeding play to secure from 2 to 20 trade checks. Were it not for this appeal to the gambling instinct, these machines, which attempt to adhere to the letter of the law while violating its spirit, would never have been placed upon the market.23 23.See Cabot et al., Future of Sweepstakes, supra note 16, at 4–5.Show More

The Gambling Instinct Test is typically associated with the deontological view of gambling: that gambling is a sin and inconsistent with a moral society.24 24.See, e.g., Mills-Jennings of Ohio, Inc. v. Dep’t of Liquor Control, 435 N.E.2d 407, 409–10 (Ohio 1982) (detailing Ohio’s shift away from an anti-gambling public policy).Show More This test, peaking in usage in the 1930s, has mostly fallen out of favor since the 1950s, alongside the broad changes to society’s moral judgment of gambling that occurred in that time period.25 25.See Cabot et al., Mixed Skill and Chance, supra note 11, at 394.Show More The Gambling Instinct Test has also been criticized for being a highly subjective test that “can vary widely in its application to particular games.”footnote_id_27_26 In light of these considerations, it may seem counterintuitive that this test would be a good fit for the modern era, where paternalistic legislation of morality is increasingly disfavored and more objective judicial methodologies are preferred. However, a broad, flexible definition better enables a smart, robust system of regulation than the illogical application of the current doctrine.

The Gambling Instinct Test is justly maligned for its subjectivity. This Note attempts to ameliorate this defect by providing more color to what it means to “appeal to the gambling instinct,” first by delving deep into the cases which applied this test, and then by drawing from empirical research to find evidentiary indicators of when that instinct is being stimulated. But before doing so, some background on the current doctrinal definition is needed.

  1.  The earliest English anti-gambling statute was enacted by King Richard II in 1388. R. Randall Bridwell & Frank L. Quinn, From Mad Joy to Misfortune: The Merger of Law and Politics in the World of Gambling, 72 Miss. L.J. 565, 622–23 (2002) (citing 1388, 12 Rich. 2 c. 6 (Eng.)). Records from third-century India indicate that there was a governmental department responsible for the regulation of gambling during the reign of Chandragupta Maurya. Ronald J. Rychlak, Lotteries, Revenues and Social Costs: A Historical Examination of State-Sponsored Gambling, 34 B.C. L. Rev. 11, 16 (1992) (citing Will Durant, Our Oriental Heritage 444 (1954)); Vincent A. Smith, The Oxford History of India 78 & n.2 (1919) (citing Arthasāstra bk. 3, ch. 20). ↑
  2.  See Nat’l Inst. L. Enf’t & Crim. Just., U.S. Dep’t of Just., The Development of the Law of Gambling: 1776–1976, at 4–13 (1977) [hereinafter Development of the Law of Gambling]. ↑
  3.  Id. at 39–41, 240. ↑
  4.  See I. Nelson Rose, Gambling and the Law: The Third Wave of Legal Gambling, 17 Vill. Sports & Ent. L.J. 361, 368–74 (2010). ↑
  5.  Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1481 (2018). Thirty-six states and the District of Columbia have legalized sports betting since that decision, and a number of other states are currently in the process of legalization. Will Yakowicz, Where Is Sports Betting Legal? A Guide to All 50 States, Forbes (Jan. 9, 2023, 12:48 PM), https://www.forbes.com/sites/willyakowicz/2022/01/07/where-is-sports-betting-legal-americ‌a-2022/ [https://perma.cc/Y67H-4SNL]. ↑
  6.  See Rose, supra note 4, at 374–75 (tracing the third wave of legal gambling back to the early 1930s). ↑
  7.  Roland J. Santoni, An Introduction to Nebraska Gaming Law, 29 Creighton L. Rev. 1123, 1129 (1996) (citing examples of such cases from a number of states); D.A. Norris, Annotation, What Are Games of Chance, Games of Skill, and Mixed Games of Chance and Skill, 135 A.L.R. 104, 107 (1941) (“In construing statutes or ordinances prohibiting gaming, gambling, or gambling devices wherein nothing is said about chance or a game of chance or skill, many courts have required, inter alia, the element of chance to be involved.”). ↑
  8.  See, e.g., N.J. Stat. Ann. § 2C:37-1(b) (West 2023). ↑
  9.  See 347 U.S. 284, 290 (1954). ↑
  10.  See, e.g., Phalen v. Virginia, 49 U.S. (8 How.) 163, 168 (1850) (“Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries.”). ↑
  11.  Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define the Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. 383, 390–91 (2009) [hereinafter Cabot et al., Mixed Skill and Chance]; Anthony N. Cabot & Louis V. Csoka, The Games People Play: Is It Time for a New Legal Approach to Prize Games?, 4 Nev. L.J. 197, 202 (Winter 2003–2004) [hereinafter Cabot & Csoka, The Games People Play]. ↑
  12.  For instance, Haralabos Voulgaris has made millions as both a professional sports bettor and poker player, and he parlayed his success using statistical models in sports gambling into becoming the Director of Quantitative Research and Development for the Dallas Mavericks. See Marton, Haralabos Voulgaris’s Life: Biggest Profits, Losses, Private Life & Net Worth, So Much Poker (Aug. 20, 2020), https://somuchpoker.com/haralabos-voulgaris-life-biggest-profits-losses-private-life-net-worth/ [https://perma.cc/Z9CU-JKNQ]. ↑
  13.  See Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 87 (Nev. 1961). ↑
  14.  See, e.g., Indoor Recreation Enters. v. Douglas, 235 N.W.2d 398, 400–01 (Neb. 1975) (upholding a ruling that chess and checkers—paradigmatic examples of games of skill—are games of chance). ↑
  15.  See Yash Nair, What Does RNG Mean in Gaming?, DOT Esports (July 12, 2022, 11:16 AM), https://dotesports.com/general/news/what-does-rng-mean-in-gaming [https://perma.cc/H2DH-XLU7] (describing how video games use random number generators in which an algorithm decides a number value that determines certain in-game outcomes). ↑
  16.  Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge, Economic Value, Equal Dignity and the Future of Sweepstakes, 1 UNLV Gaming L.J. 1, 10–15 (2010) [hereinafter Cabot et al., Future of Sweepstakes] (citing FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954)). ↑
  17.  See Cabot et al., Future of Sweepstakes, supra note 16, at 23–36. ↑
  18.  See Mark D. Griffiths, Is the Buying of Loot Boxes in Video Games a Form of Gambling or Gaming?, 22 Gaming L.R. 52, 53 (2018). The loot box mechanism works as follows: “Players use real money to buy virtual in-game items and can redeem such items by buying keys to open the boxes where they receive a chance selection of further virtual items.” Id. at 52. ↑
  19.  U.K. Gambling Commission, Virtual Currencies, eSports and Social Casino Gaming – Position Paper ¶ 3(17)–(18) (2017), https://assets.ctfassets.net/j16ev64qyf6l/4A644HIpG1‌g2ymq11HdPOT/ca6272c45f1b2874d09eabe39515a527/Virtual-currencies-eSports-and-soci‌al-casino-gaming.pdf [https://perma.cc/2HL8-E9FX] (“Where prizes are successfully restricted for use solely within the game, such in-game features would not be licensable gambling, notwithstanding the elements of expenditure and chance.”). ↑
  20.  The Federalist No. 37, at 180 (James Madison) (George W. Carey & James McClellan eds., 2001). ↑
  21.  See Cabot et al., Mixed Skill and Chance, supra note 11, at 393–94. ↑
  22.  See Jim Leitzel, Regulating Vice, in The Handbook of Deviance 45, 46 (Erich Goode ed., 2015). ↑
  23.  213 N.W. 335, 339 (Wis. 1927). ↑
  24.  See Cabot et al., Future of Sweepstakes, supra note 16, at 4–5. ↑
  25.  See, e.g., Mills-Jennings of Ohio, Inc. v. Dep’t of Liquor Control, 435 N.E.2d 407, 409–10 (Ohio 1982) (detailing Ohio’s shift away from an anti-gambling public policy). ↑

  26.  See Cabot et al., Mixed Skill and Chance, supra note 11, at 394. ↑

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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