SUPREME COURT OF THE UNITED STATES
_________________
No. 20–303
_________________
United States, PETITIONER
v. Jose Luis
Vaello Madero
on writ of certiorari to the united states
court of appeals for the first circuit
[April 21, 2022]
Justice Thomas, concurring.
I join the opinion of the Court. I write
separately to address the premise that the Due Process Clause of
the Fifth Amendment contains an equal protection component whose
substance is “precisely the same” as the Equal Protection Clause of
the Fourteenth Amendment.
Weinberger v.
Wiesenfeld,
420 U.S.
636, 638, n. 2 (1975). Although I have joined the Court in
applying this doctrine, see
Adarand Constructors, Inc. v.
Peña,
515 U.S.
200, 213–217 (1995), I now doubt whether it comports with the
original meaning of the Constitution. Firmer ground for prohibiting
the Federal Government from discriminating on the basis of race, at
least with respect to civil rights, may well be found in the
Fourteenth Amendment’s Citizenship Clause.
I
Until the middle of the 20th century, this
Court consistently recognized that the Fifth Amendment “contains no
equal protection clause and it provides no guaranty against
discriminatory legislation by Congress.”
Detroit Bank v.
United States,
317 U.S.
329, 337 (1943); see also
LaBelle Iron Works v.
United States,
256 U.S.
377, 392 (1921). However, the Court did maintain that the Fifth
Amendment’s Due Process Clause prohibited “such discriminatory
legislation by Congress as amounts to a denial of due process,”
i.e., legislation that would fail rational-basis review.
Hirabayashi v.
United States,
320 U.S.
81, 100, 102 (1943).
In
Bolling v.
Sharpe,
347 U.S.
497 (1954), the Court began in earnest to fold an “equal
protection” guarantee into the concept of “due process.” Decided
the same day as
Brown v.
Board of Education,
347 U.S.
483 (1954),
Bolling confronted the constitutionality of
government-imposed segregation in the District of Columbia’s public
schools. Because any such segregation was attributable to Congress,
see U. S. Const., Art. I, §8, cl. 17, rather than state
action, the Equal Protection Clause did not apply.
Bolling
instead read an equal protection principle into the Fifth
Amendment’s requirement that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of
law.” See 347 U. S., at 498–500.
Bolling’s locating of an equal protection
guarantee in the Fifth Amendment’s Due Process Clause raises
substantial questions. First,
Bolling’s interpretation
seemingly relies upon the
Lochner-era theory that
“unreasonable discrimination” is “a denial of due process of law.”
347 U. S., at 499 (citing
Buchanan v.
Warley,
245 U.S.
60 (1917)); see also 347 U. S.
, at 500
(“Segregation in public education is not reasonably related to any
proper governmental objective” and therefore “constitutes an
arbitrary deprivation of . . . liberty”); see
Lochner v.
New York,
198 U.S.
45 (1905). By invoking “due process” to hold an allegedly
“unreasonable” or “arbitrary” legislative classification
unconstitutional,
Bolling made clear that it was applying
this Court’s “substantive due process” doctrine. See
N. Chapman & M. McConnell, Due Process as Separation
of Powers, 121 Yale L. J. 1672, 1800 (2012) (“[W]hen the Court
purports to evaluate whether a state’s interest is ‘legitimate’ or
a ‘justif[ied]’ interference with a judge-made liberty, the result
is no different in principle than in other modern substantive due
process cases”).
But “[t]he notion that a constitutional
provision that guarantees only ‘process’ before a person is
deprived of life, liberty, or property could define the substance
of those rights strains credulity for even the most casual user of
words.”
McDonald v.
Chicago,
561
U.S. 742, 811 (2010) (Thomas, J., concurring in part and
concurring in judgment). Rather, “ ‘considerable historical
evidence supports the position that “due process of law” was a
separation-of-powers concept designed as a safeguard against
unlicensed executive action, forbidding only deprivations not
authorized by legislation or common law.’ ”
Johnson v.
United States, 576 U.S. 591, 623 (2015) (Thomas, J.,
concurring in judgment) (quoting D. Currie, The Constitution
in the Supreme Court: The First Hundred Years 1789–1888, p. 272
(1985)); see also
In re Winship,
397 U.S.
358, 378–382 (1970) (Black, J., dissenting). And, to the extent
that the Due Process Clause restrains the authority of Congress, it
may, at most, prohibit Congress from authorizing the deprivation of
a person’s life, liberty, or property without providing him the
“customary procedures to which freemen were entitled by the old law
of England.”
Pacific Mut. Life Ins. Co. v.
Haslip,
499 U.S.
1, 28 (1991) (Scalia, J., concurring in judgment) (internal
quotation marks omitted); see also
Murray’s Lessee v.
Hoboken Land & Improvement Co., 18 How. 272 (1856).
Either way, the Fifth Amendment’s text and history provide little
support for modern substantive due process doctrine.
To be sure, some have argued that “antebellum
due process theory commonly included an equality principle” that
circumscribed legislative authority. K. Lash, Enforcing the
Rights of Due Process, 106 Geo. L. J. 1389, 1443 (2018). But
there is no historical consensus that this kind of substantive due
process took hold in antebellum America. See,
e.g.,
I. Wurman, The Second Founding 28–35 (2020). And, in any
event, “the pre-constitutional and Founding-era evidence regarding
the meaning of ‘due process of law’ strongly suggests the phrase
most likely would have been viewed in 1791 . . . as
guaranteeing either that duly enacted law would be followed or that
certain requisite procedures would be observed.” R. Williams, The
One and Only Substantive Due Process Clause, 120 Yale L. J.
408, 416 (2010). It is not clear why post-1791 developments should
displace more probative preconstitutional and founding-era
evidence. See,
e.g., S. Calabresi & S. Prakash, The
President’s Power To Execute the Laws, 104 Yale L. J. 541,
550–551 (1994) (“[T]he Constitution’s postenactment ‘legislative’
history” is “the history that is least likely to reflect the
original understanding”).
Second,
Bolling reasoned that the
“liberty” protected by the Due Process Clause covers “the full
range of conduct which the individual is free to pursue,” 347
U. S.
, at 499–500, and therefore guaranteed freedom
from segregated schooling. That understanding of “liberty” likely
sweeps too broadly. Given the relevant history, “it is hard to see
how the ‘liberty’ protected by the [Due Process Clause] could be
interpreted to include anything broader than freedom from physical
restraint.”
Obergefell v.
Hodges, 576 U.S. 644, 725
(2015) (Thomas, J., dissenting). And even if “liberty” encompasses
more than that, “[i]n the American legal tradition, liberty has
long been understood as individual freedom
from governmental
action, not as a right
to a particular government
entitlement.”
Id., at 726; see also C. Green, Seven Problems
With Antidiscrimination Due Process, 11 Faulkner L. Rev. 1, 32
(2019) (“Even on [a] very expansive view, ‘liberty’ is still only
freedom from interference, rather than positive rights to receive
benefits or participate in others’ activities”). Consequently, if
“liberty” in the Due Process Clause does not include any rights to
public benefits, it is unclear how that provision can constrain the
regulation of access to those benefits.
Third, although the
Bolling Court claimed
that its decision “d[id] not imply that [due process and equal
protection] are always interchangeable phrases,” 347 U. S., at
499, its logic led this Court to later erase any distinction
between them. We now maintain that the “equal protection
obligations imposed by the Fifth and the Fourteenth Amendments
[are] indistinguishable.”
Adarand Constructors, Inc., 515
U. S., at 217; see also
Sessions v.
Morales-
Santana, 582 U. S. ___, ___, n. 1 (2017) (slip op., at 2,
n. 1). But if “due process of law” fully subsumed the
guarantee of equal protection, it is unclear why §1 of the
Fourteenth Amendment would redundantly state both requirements in
consecutive Clauses. See,
e.g., G. Maggs, Innovation in
Constitutional Law, 86 Nw. U. L. Rev. 1038, 1053 (1992)
(Maggs); R. Natelson, The Constitution and the Public Trust, 52
Buffalo L. Rev. 1077, 1174, n. 432 (2004); R. Primus,
Bolling Alone, 104 Colum. L. Rev. 975, 976, n. 7
(2004).
Fourth,
Bolling asserted that because the
Constitution prohibits States from racially segregating public
schools, “it would be unthinkable that the same Constitution would
impose a lesser duty on the Federal Government.” 347 U. S., at
500. For one, such moral judgments lie beyond the commission of the
federal courts. For another, the assertion is debatable at best.
“The Constitution contains many limitations that apply only to the
states, or only to the federal government, and this Court is not
free to disregard those aspects of the constitutional design.”
M. McConnell, Concurring in the Judgment, in What
Brown
v.
Board of Education Should Have Said 166 (J. Balkin ed.
2001) (McConnell) (footnotes omitted); see also Maggs 1052.
Likewise, “the enactors of the Fourteenth Amendment might have
reasonably believed that [an equal protection] provision was not
needed against the federal government” because it “had shown itself
to be a much better protector of the rights of minorities than had
the states.” M. Rappaport, Originalism and the Colorblind
Constitution, 89 Notre Dame L. Rev. 71, 90 (2013); see also J. Ely,
Democracy and Distrust 33 (1980); McConnell 167; K. Roosevelt,
Forget the Fundamentals: Fixing Substantive Due Process, 8
U. Pa. J. Const. L. 983, 997 (2006).
In sum, the text and history of the Fifth
Amendment’s Due Process Clause provide limited support for reading
into that provision an equal protection guarantee.
II
Even if the Due Process Clause has no equal
protection component, the Constitution may still prohibit the
Federal Government from discriminating on the basis of race, at
least with respect to civil rights. While my conclusions remain
tentative, I think that the textual source of that obligation may
reside in the Fourteenth Amendment’s Citizenship Clause. That
Clause provides: “All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.” Amdt. 14, §1,
cl. 1. As I sketch out briefly below, considerable historical
evidence suggests that the Citizenship Clause “was adopted against
a longstanding political and legal tradition that closely
associated the status of ‘citizenship’ with the entitlement to
legal equality.” R. Williams, Originalism and the Other
Desegregation Decision, 99 Va. L. Rev. 493, 501 (2013)
(Williams); see also A. Amar, Intratextualism, 112 Harv.
L. Rev. 747, 768–769 (1999). Thus, the Citizenship Clause
could provide a firmer foundation for
Bolling’s result than
the Fifth Amendment’s Due Process Clause.
A
In the years before the Fourteenth Amendment’s
adoption, jurists and legislators often connected citizenship with
equality. Namely, the absence or presence of one entailed the
absence or presence of the other. See Williams 513–515 (discussing
political discourse during the 1820s). By the late 1850s, the
connection was well established. For example, even Chief Justice
Taney in
Dred Scott v.
Sandford, 19 How. 393 (1857),
demonstrated this connection when discussing why, erroneously in my
view, free blacks were “not intended to be included . . .
under the word ‘citizens’ in the Constitution,” and therefore could
“claim none of the rights and privileges which that instrument
provides for and secures to citizens of the United States.”
Id., at 404. According to Taney, free blacks were at the
founding “considered as a subordinate and inferior class of beings
who had been subjugated by the dominant race, and, whether
emancipated or not, yet remained subject to their authority, and
had no rights or privileges but such as those who held power and
the Government might choose to grant them.”
Id., at
404–405.
He reached that conclusion after surveying
discriminatory state laws and finding it “hardly consistent with
the respect due to these States, to suppose that they regarded at
that time, as fellow-citizens and members of the sovereignty, a
class of beings whom they had thus stigmatized . . . and
upon whom they had impressed such deep and enduring marks of
inferiority and degradation.”
Id., at 416. Under the Comity
Clause of Article IV, moreover, States could not place “citizens”
of the United States “in an inferior grade.”
Id., at 423.
Because it was long assumed that blacks could be placed in such an
“inferior grade,” how then could they be citizens? For Taney, then,
States’ longstanding and widespread practice of denying free blacks
equal civil rights conclusively showed that blacks were not
“citizens” entitled to various constitutional protections, such as
the right to sue in federal court.
Senator Stephen Douglas, defending
Dred
Scott a few months later in Springfield, Illinois, expressed
the converse of Taney’s reasoning. He asked his audience, “What is
the object of making [Dred Scott] a citizen?” and answered, “Of
course to give him the rights, privileges and immunities of a
citizen, it being the great fundamental law in our Government, that
under the law, citizens are equal in their rights and privileges.”
Kansas—The Mormons—Slavery, in A Political Textbook for 1860, p.
155 (H. Greeley & J. Cleveland eds. 1860). Thus, Douglas
recognized that the bestowal of citizenship ineluctably entailed
equal civil rights. Abolitionists agreed, but, unlike Taney and
Douglas, reasoned that all persons—black or white—born in the
United States were citizens and therefore entitled to equal civil
rights. See Williams 515–518.[
1]
After the Civil War, the Nation again confronted
the citizenship status of black Americans. Though they were no
longer slaves in light of the Thirteenth Amendment, the question
remained whether, by virtue of their freedom from bondage, these
native-born men and women were “citizens.” Consistent with Taney’s
view in
Dred Scott, southern governments rejected that free
blacks were citizens and consequently enacted “Black Codes” that
“restricted freed slaves’ rights to make and enforce private
contracts, to own and convey real and personal property, to hold
certain jobs, to seek relief in court, and to participate in common
life as ordinary citizens.” J. Harrison, Reconstructing the
Privileges or Immunities Clause, 101 Yale L. J. 1385, 1388
(1992).
In response, Congress enacted the Civil Rights
Act of 1866 to both repudiate
Dred Scott and eradicate the
Black Codes. The 1866 Act contained a citizenship clause similar to
the Fourteenth Amendment’s: “[A]ll persons born in the United
States and not subject to any foreign power, excluding Indians not
taxed, are hereby declared to be citizens of the United States.”
Act of Apr. 9, 1866, 14Stat. 27. The provision immediately
succeeding that citizenship guarantee clarified that “such
citizens, of every race and color” were entitled to
“the same right, in every State and
Territory in the United States, to make and enforce contracts, to
sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to full and
equal benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens, and shall be
subject to like punishment, pains, and penalties, and to none
other.”
Ibid.
Fleshing out the implications of the citizenship
declaration, this clause suggests that the right to be free of
racial discrimination with respect to the enjoyment of certain
rights is a constituent part of citizenship.
Moreover, as Congress debated the 1866 Act, “the
view that the status of citizenship conferred upon its recipients
at least some minimal level of equality rights was widely shared
among both supporters and opponents.” Williams 535. For instance,
Representative Samuel Shellabarger argued that “the right of all
citizens to be secured in the enjoyment of whatever privileges
their citizenship does confer upon them is in its very nature equal
. . . .” Cong. Globe, 39th Cong., 1st Sess., 1293
(1866). Representative Henry Jarvis Raymond, meanwhile, wanted
Congress to declare that free blacks were citizens, “and thus
secure to them whatever rights, immunities, privileges, and powers
belong as of right to all citizens of the United States.”
Id., at 1266; see also
ibid. (“[T]he right of
citizenship involves everything else. Make the colored man a
citizen of the United States and he has every right which you or I
have as citizens of the United States . . . ”). And after
President Johnson’s veto, Representative William Lawrence, the 1866
Act’s principal House sponsor, maintained that “the very nature of
citizenship” guaranteed an “equality of civil rights.”
Id.,
at 1836.
The 1866 Act’s reversal of
Dred Scott
raised questions whether Congress had such authority under the
existing Constitution. See,
e.g., K. Lash, The Fourteenth
Amendment and the Privileges and Immunities of American Citizenship
169 (2014). Once incorporated into the Fourteenth Amendment, the
Citizenship Clause “forever closed the door on
Dred Scott”
and “constitutionalized the Civil Rights Act of 1866.”
Id.,
at 171. When Senator Jacob Howard moved to add the Citizenship
Clause, he and others characterized the Clause as largely
“declaratory” of existing law, including the 1866 Act. Cong. Globe,
39th Cong., 1st Sess., at 2890 (remarks of Sen. Howard); see also
id., at 2896 (remarks of Sen. Doolittle). Then, as Congress
considered the Citizenship Clause, Republicans reiterated the same
equal-citizenship principle that featured in the debates over the
1866 Act. Senator John Conness, for instance, remarked that the
1866 Act guaranteed that all born in the United States “be regarded
and treated as citizens of the United States, entitled to equal
civil rights with other citizens of the United States.”
Id.,
at 2891; see also Williams 543–548. And during the ratification
debates, Republicans continued to publicly advocate that
citizenship and equal civil rights were concomitant. See
id., at 549–554.
B
In the years following the Fourteenth
Amendment’s ratification, several Justices also appeared to endorse
this understanding of the Citizenship Clause, consistent with
Reconstruction-era discourse. In the
Slaughter-House Cases,
16 Wall. 36 (1873), Justice Bradley’s dissent articulated the
equal-citizenship principle: “Citizenship of the United States
ought to be, and, according to the Constitution, is, a sure and
undoubted title to equal rights in any and every State in this
Union.”
Id., at 113. “If a man be denied full equality
before the law, he is denied one of the essential rights of
citizenship as a citizen of the United States.”
Ibid.; see
also
id., at 118 (“Equality before the law is undoubtedly
one of privileges and immunities of every citizen”). Justice
Field’s dissent similarly explained that the 1866 Act rested “upon
the theory that citizens of the United States as such were entitled
to the rights and privileges enumerated, and that to deny to any
such citizen equality in these rights and privileges with others,
was, to the extent of the denial, subjecting him to an involuntary
servitude,”
i.e., rejecting his status as a citizen.
Id., at 91–92.
Three years after the
Slaughter-House
Cases, Congress enacted the Civil Rights Act of 1875,
prohibiting discrimination in public accommodations. During the
congressional debates over the 1875 Act, Republicans reiterated the
relationship between the status of “citizen” and entitlement to
equal civil rights. See Williams 565–570; see also C. Green, Equal
Citizenship, Civil Rights, and the Constitution 164–202 (2015)
(collecting examples). In a virtually unanimous opinion, this Court
held the 1875 Act unconstitutional because discrimination by public
accommodations was not state action Congress could regulate under
the Fourteenth Amendment. See
Civil Rights Cases,
109 U.S.
3, 25–26 (1883). The lone dissenter, Justice John Marshall
Harlan, focused primarily on citizenship and echoed Republicans’
understanding of equal citizenship: “Citizenship in this country
necessarily imports at least equality of civil rights among
citizens of every race in the same State. It is fundamental in
American citizenship that, in respect of such rights, there shall
be no discrimination by the State . . . against any
citizen because of his race.”
Id., at 48.
Only five years later, a unanimous Court in
Gibson v.
Mississippi,
162 U.S.
565 (1896), seemingly confirmed Harlan’s understanding of
citizenship and the textual source of the equal-citizenship
guarantee. Writing for the Court, Justice Harlan declared that “the
Constitution of the United States,
in its present form,
forbids, so far as civil and political rights are concerned,
discrimination by
the General Government, or by the States,
against any citizen because of his race. All citizens are equal
before the law.”
Id., at 591 (emphasis added).[
2] The Court’s reference to the Constitution
“in its present form” (
i.e., in 1896) indicates that the
Court located an equality principle applicable to both the States
and “the General Government” in the Fourteenth Amendment, not the
Fifth. And because the usual textual candidates—the Privileges or
Immunities Clause, Due Process Clause, and Equal Protection
Clause—apply only to “State[ s],” it stands to reason that
Gibson understood the Citizenship Clause to forbid
discrimination by the Federal Government “so far as civil
. . . rights are concerned.”
Ibid.[
3]
The same year as
Gibson, Justice Harlan
also penned his dissent in
Plessy v.
Ferguson,
163 U.S.
537 (1896), in which the Court upheld a Louisiana law requiring
racial segregation on train cars. In asserting that the law was
unconstitutional, Harlan did not rely on the Equal Protection
Clause. Instead, he maintained that Louisiana’s law was
“inconsistent . . . with the equality of rights which
pertains to citizenship, National and State.”
Id., at 555.
And Harlan’s famous declaration underscores the connection between
citizenship and equality: “Our Constitution is color-blind, and
neither knows nor tolerates classes among
citizens. In
respect of civil rights, all
citizens are equal before the
law.”
Id., at 559 (emphasis added). Given that the Equal
Protection Clause speaks of “person[s],” rather than citizens,
Harlan’s reasoning in
Plessy suggests that citizenship
itself carried with it a right to equal treatment independent of
the “equal protection of the laws” guaranteed to all
“person[s].”[
4]
Beyond its emphasis on equal citizenship,
Justice Harlan’s
Plessy dissent also specifically recognized
that the Federal Government could not engage in racial
discrimination. The Fourteenth Amendment, Harlan explained, “gave
citizenship to all born or naturalized in the United States, and
residing here,” “obliterated the race line from our systems of
governments,
National and State,” and “placed our free
institutions upon the broad and sure foundation of the equality of
all men before the law.”
Id., at 563 (emphasis added). In
short, Harlan understood that citizenship and equality went hand in
hand and that equal citizenship prohibited the Federal Government,
as much as the States, from discriminating with respect to civil
rights.
While the historical evidence above is by no
means conclusive, it offers substantial support for the proposition
that, by conferring citizenship, the Citizenship Clause guarantees
citizens equal treatment by the Federal Government with respect to
civil rights.[
5]
* * *
Justice Harlan stated in
Plessy that
the Fourteenth Amendment “added greatly to the dignity and glory of
American citizenship.”
Id. at 555. And the “best part of
citizenship,” according to Charles Sumner, is “equality before the
law.” Cong. Globe, 42d Cong., 2d Sess., 384 (1872).[
6] The Citizenship Clause’s conferral of the
“dignity and glory of American citizenship” may well prohibit the
Federal Government from denying citizens equality with respect to
civil rights. Rather than continue to invoke the Fifth Amendment’s
Due Process Clause to justify
Bolling, in an appropriate
case, we should more carefully consider whether this interpretation
of the Citizenship Clause would yield a similar, and more
supportable, result.
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