\

VOLUME 102 JUNE 1989 NUMBER 8

HARVARD
LAW REVIEW
IN MEMORIAM: PAUL M. BATOR
David L. Shapiro Charles Fried Stephen Breyer

ARTICLES .
RACIAL CRITIQUES OF LEGAL ACADEMIA Randall L. Kennedy
LIMITING CONTRACTUAL FREEDOM IN
CORPORATE LAW: THE DESIRABLE CONSTRAINTS
ON CHARTER AMENDMENTS Lucian A . Bebchuk

NOTES
The Luck of the Law: Allusions to Fortuity in Legal Discourse
Incorporating the Republic: The Corporation in Antebellum
Political Culture
The Content Distinction in Free Speech Analysis After Renton
Membership Has Its Privileges and Immunities: Congressional Power
To Define and Enforce the Rights of National Citizenship
Over-Protective Jurisdiction?: A State Sovereignty Theory of Federal
Questions
Major Operational Decisions and Free Collective Bargaining:
Eliminating the Mandatory/ Permissive Distinction
The Anti-Discrimination Principle in the Common Law

BOOK REVIEW
WHAT CAN A LAWYER LEARN FROM
LITERATURE? James Boyd White

RECENT CASES

Copyright © 1989 by

THE HARVARD LAW REVIEW ASSOCIATION

MEMBERSHIP HAS ITS PRIVILEGES AND IMMUNITIES :
CONGRESSIONAL POWER TO DEFINE AND ENFORCE
THE RIGHTS OF NATIONAL CITIZENSHIP

The belief that certain rights are necessary attributes of an indi-

vidual's membership in a political community is deeply rooted in our
political tradition. "The power of citizenship as a shield against
oppression was widely known from the example of Paul's Roman
citizenship, which sent the centurion scurrying to his higher-ups with
the message: 'Take heed what thou doest: for this man is a Roman. "'1
Judges and scholars have long asked whether individual rights, be-
yond those enumerated within the text of the Constitution and in
federal statutory law, can be inferred from a person's status as a
citizen of the national political community.
The question of the existence of such rights of citizenship bears on
the continuing controversy over the limits of Congress' power to pro-
tect certain individual activities from nongovernmental discriminatory
conduct. The Supreme Court's recent decision 2 to reconsider the hold-
ing of Runyon v. McCrary,3 which extended the coverage of 42 V.S .c.
§ 1981 to private racially discriminatory acts in the making of con-
tracts, 4 has instilled in scholars foreboding toward the Court's future
treatment of civil rights enforcement. More fundamentally, the whole
affair highlights a basic question of constitutional ordering: is the goal
of individual freedom advanced if private actors can exercise coercive
power to frustrate the very liberties that government itself is forbidden
to infringe? Although Congress can now regulate private conduct
obliquely through the commerce clause, current constitutional doctrine
places barriers on congressional power to directly protect rights from
private infringement. This Note proposes that the path out of this
quandary lies in the rediscovery of a source of legislative power based
on the inherent structural framework of the Constitution and orga-
nized around the concept of national citizenship. Future legislative
efforts should rely on this conception of rights to reach categories of
private conduct beyond the current constitutional reach of the national
government. Such a strategy would also lead to a reinvigoration in
our ideals and aspirations of citizenship. 5

1 Edwards v. California, 314 U .S. 160, 182 (1941 ) (Jackson, ]. , concurring) (quoting Acts
22 :26 (King James)).
2 See Patterson v. McLean Credit Union, 108 S. Ct. 1419 (1988).
3427 U.S. 160 (1976) .
4 See id. at 168-75 .
5 The analysis in this Note, which is concerned with normative questions of constitutional
interpretation, parallels in some respects the work of a group of historians who argue that the
fourteenth amendment and other legislative landmarks of the Reconstruction reflected a nation-
alistic political theory embodied by the Republican majority in Congress that sought to bring
 HARVARD LAW REVIEW [Vol. 102:192$

Part I briefly surveys the doctrinal limits of constitutional author-

ization to legislate against private discriminatory conduct. Part II
traces the notion in American political thought that an individual's
status as a member of a political community carries with it certain
inherent rights, and shows how the Supreme Court has given concrete
expression to this idea by recognizing certain classes of unenumerated
individual rights. Part III suggests how a modernized conception of
citizenship rights can serve as authority for a program of legislation
designed to reach classes of private discriminatory action that cur-
rently lie beyond the accepted constitutional limits of congressional
power.

1. THE CONSTITUTIONAL SAFE HARBOR FOR PRIVATE

DISCRIMINATORY CONDUCT

Current constitutional doctrine authorizes Congress to enact leg-

islation to protect individual rights against private discriminatory con-
duct under several different heads of constitutional authorization.
Each of these doctrinal sources of legislative power, however, is re-
stricted by its own inherent limits, and no single source can provide
a coherent and consistent constitutional foundation for congressional
action to reach the myriad forms of unacceptable private discrimina-
tory conduct.

A. Thirteenth Amendment

In Jones v. Alfred H. Mayer Co.,6 the Supreme Court expansively

interpreted the enabling section of the thirteenth amendment to au-
thorize legislation directed at private racially discriminatory conduct
enacted under Congress' discretion "rationally to determine what are

most civil rights under the protection of the national government. See, e.g., H. GRAHAM,
EVERYMAN'S CONSTITUTION 152-241, 298-336 (1968); H . HYMAN & W. WIECEK, EQUAL JUS-
TICE UNDER LAW (1982); J. TENBROEK, EQUAL UNDER LAW (1965); Kaczorowski, Revolution-
ary Constitutionalism in the Era of the Civil War and Reconstruction, 6 IN. Y. U. L. REv. 863
(1986). Although the claims presented here rely partly on this body of work, this Note is not
intended to be an argument about historical interpretation. Such an approach is vulnerable to
other legitimate perspectives on the historical record. See, e.g., Maltz, Reconstruction Without
Revolution: Republican Civil Rights Theory in the Era of the Fourteenth Amendment, 24 Hous.
L. REv. 221 (1987) (arguing that conservative elements within the Republican party prevented
it from completely nationalizing the protection of civil rights). As the war waged by scholars
over the historical legitimacy of the incorporation doctrine illustrates, the task of divining the
intent of the framers of the fourteenth amendment is particularly difficult and muddied; in
short, it is "an argument no one can win." J. ELY, DEMOCRACY AND DISTRUST 25 (1980).
6 392 U.S. 409 (1968).
 CITIZENSHIP RIGHTS

the badges and the incidents of slavery."7 However, under ~ broad

reading of Jones, Congress could state that the infringement of a
prescribed set of rights constituted the dominion of one person over
another, and legislate against such conduct as a violation of the thir-
teenth amendment. 8 Thus, "[i]f Jones is read literally ... Congress
would possess plenary authority ... to protect all but the most trivial
individual rights from both governmental and private invasion."9
Although the Court has never defined the limits of Jones, the
thirteenth amendment's potential as a source of broad congressional
power to reach private action appears to be limited by its history.
Despite the Court's view that the amendment authorizes enforcement
legislation directed at acts of private discrimination on account of
ancestry or ethnic characteristics,lO the question remains whether it
also sanctions legislation reaching forms of nonracial discrimination.
In fact, the Court has expressed its concern about "[t]he constitutional
shoals that would lie in the path of interpreting [enforcement legisla-
tion] as a general federal tort law."l1 Moreover, the historical moti-
vation for the thirteenth amendment - elimination of the vestiges of
black slavery - suggests that Congress may have less leeway to define
the "badges and incidents of slavery" for forms of nonracial bias, such
as discrimination based on religion, gender, or sexual orientation, than
it currently does for racial bias. 12

B. Fourteenth Amendment
In the Civil Rights Cases,13 the Supreme Court limited Congress'
enforcement power under the fourteenth amendment to legislation

7 [d . at 440. The Court implicitly overruled the narrow reading of the Civil Rights Cases,
109 U.S. 3 (1883), which held that the thirteenth amendment could not authorize the Civil
Rights Act of 1875 because racial discrimination in public accommodations is not a "badge[]
and incident[J of slavery," see id. at 20-25 .
8 See L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-13, at 332-33 (2d ed. 1988).
9 [d . This broad reading of § 2, however, should be contrasted with the narrowness of the
self-executing reach of § I of the thirteenth amendment. See City of Memphis v. Greene, 451
U.S. 100, 124-29 (1981).
10 See Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022, 2028 (1987); Shaare Tefila
Congregation v. Cobb, 107 S. Ct. 2019, 2021-22 (1987).
11 Griffin v. Breckenridge, 403 U.S . 88, 102 (1971); see also Norwood v. Harrison, 413 U.S.
455,470 (1973) (stating that "some private discrimination is subject to special remedial legislation
in certain circumstances under § 2 of the Thirteenth Amendment" (emphasis added)).
12 Cf. United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 836 (1983) ("[IJt is a
close question whether [42 U.S.C.] § 1985(3) was intended to reach any class-based animus
other than animus against Negroes and those who championed their cause."); Georgia v. Rachel ,
384 U.S. 780, 791 (1966) (emphasizing the "racial character of the rights" protected by § I of
the Civil Rights Act of 1866). Of course, Congress, irrespective of the racial motivation of an
act, could still regulate private conduct that has the direct effect of enslaving an individual.
See Clyatt v. United States, 197 U .S. 207, 217-18 (1905) (upholding the Anti-Peonage Act, 42
U.S.C. § 1994 (1982)).
13 109 U.S. 3 (1883).
 HARVARD LAW REVIEW [Vol. 102:1925

directed against forms of state action that infringed on fourteenth

amendment rights.14 The vitality of this holding was placed into
doubt by United States v. Guest,15 in which six Justices, concurring
in two separate opinions, suggested that section 5 of the fourteenth
amendment empowered Congress to legislate against purely private
conduct. 16 Considerable confusion remains, however, over how far
these six Justices (only one of whom is now on the Court) envisioned
Congress' enforcement authority extending. 17 The Court, unfortu-
nately, has not definitively resolved this question, leaving the scope
of Congress' power to reach purely private conduct under section 5,
at best, in a state of flux. 18

C. Commerce Clause
As every law student knows, the struggle in the Supreme Court
over the constitutionality of New Deal economic legislation resulted
in a vast expansion of the scope of congressional power under the
commerce clause. 19 While the Court has stated in dicta that there
may be limits inherent in the grant of the commerce power,20 Congress
has exploited this power to enact sweeping civil rights legislation
directed at private discriminatory conduct. 21
Despite this apparently bottomless reservoir of legislative power,
certain classes of activities may lie beyond the constitutional scope of
this clause. 22 The fact that the Court does conduct some review of

14 See id . at IO-19.

15383 U.S. 745 (1966).

16 See id. at 781-84 (Brennan, ]., joined by Warren, C.]., and Douglas, J., concurring in
part and dissenting in part); id. at 762 (Clark, J., joined by Black & Fortas, J]., concurring).
17 See id. at 780-81 (Brennan, ]., concurring in part and dissenting in part) (reserving the
question whether § 5 reaches the right to equal use of privately owned facilities). See .generally
Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement
Clauses of the Reconstruction Era Amendments, 74 COLUM. L. REv. 449, 513-15 (1974) (sur-
veying scholarly views on the scope of Guest).
18 One avenue along which congressional power under § 5 might be expanded other than a
direct interpretation of that section as covering private conduct is to relax the requirement of
what conduct constitutes "state action." For an example of a rather strained interpretation of
private conduct as state action, see Guest, 383 U.S. at 755-57. The state action doctrine,
however, continues to enjoy vitality. See L. TRIBE, CONSTITUTIONAL CHOICES 246-66 (1985).
19 See generally L. TRIBE, supra note 8, §§ 5-4 to 5-6, at 305-13.
20 See, e.g., Maryland v. Wirt2, 392 U.S. 183, 196 n.27 (1968); NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. I, 37 (1937); see also Hodel v. Virginia Surface Mining & Reclamation
Ass'n, 452 U.S. 264, 307-13 (1981) (Rehnquist, ]., concurring in the judgment).
21 See, e.g., Civil Rights Act of 1964, §§ 201-207, 42 U.S.C. § 2000a (1982) (public accom-
modations); id. §§ 701-716, 42 U.S.c. § 2000e (employment); see also Daniel v. Paul, 395 U.S.
298 (1969) (upholding application of the public accommodations title); Katzenbach v. McClung,
379 U.S. 294 (1964) (same); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964)
(same).
22 See Note, supra note 17, at 464-65 (arguing that racially discriminatory practices of

private schools cannot be reached under the commerce clause).

 CITIZENSHIP RIGHTS

Congress' determination whether the activity regulated has an impact

on commerce is evidence that the Court takes seriously its view that
there may well be judicially enforceable limits on the commerce
power.23 Also, the principal features of major civil rights legislation
suggest that Congress itself does not believe that it has unlimited
commerce power.24 For example, title II of the Civil Rights Act of
1964, which bans discrimination in public accommodations, was
confined to only those facilities that have a demonstrable nexus to
interstate commerce. 25 In addition, in many cases, Congress may
find it more difficult to justify civil rights legislation under a com-
merce clause rationale than under some other form of constitutional
authorization . 26
Even if Congress has virtually unbounded power under the com-
merce clause to protect individual rights against private infringement,
such an approach, consistently followed, lacks a certain constitutional
fitness. 27 Although commerce clause doctrine has successfully evaded
Marshall's dictum 28 that Congress' powers may not be used as a
"pretext" for legislating on objects not entrusted to it,29 civil rights
legislation based on the power to regulate interstate commerce poses
a unique problem by threatening to mask or even impair the expres-
sive power of such laws. Justice Jackson, warning of the dangers
of a lack of moral adaption between means and ends, stated that
"[t]o hold that the measure of [an individual's] rights is the com-
merce clause is likely to result eventually . . . in denaturing human
rights."3o

23 See id . at 464; cf. McClung, 379 U.S. at 303 ("[T]he mere fact that Congress has said
when particular activity shall be deemed to affect commerce does not preclude further exami-
nation by this Court. ").
24 See Heart of Atlanta Motel, 379 U.S. at 273 (Black, J. , concurring) ("Congress . . .
exclud[ed] some establishments from the Act ... because it believed its powers to regulate and
protect interstate commerce did not extend so far.").
2S See 42 U.S.C. § 2000a{C) (1982); cf. McClung, 379 U.S. at 304 ("The only remaining
question . . . is whether the particular restaurant either serves or offers to serve interstate
travelers or serves food a substantial portion of which has moved in interstate commerce. ").
26 For example, Congress would have had a difficult time justifying under the commerce
clause lowering the voting age in state elections to eighteen. See Bogen, The Hunting of the
Shark: An Inquiry into the Limits of Congressional Power Under the Commerce Clause, 8 WAKE
FOREST L. REv. 187, 199 (1972); cf. Oregon v. Mitchell, 400 U.S. lI2 (1970) (holding that
Congress lacks the authority under § 5 of the fourteenth amendment to lower the voting age to
eighteen in state elections).
27 See C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 58 (1969)
("[T]here hangs about all of these uses a feeling that the tool employed, though its use was licit
and it did the job, was not the perfectly adapted tool. ").
28 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).
29 See , e.g., United States v. Darby, 312 U.S. 100, lIS (1941) ("The motive and purpose of
a regulation of interstate commerce are matters for the legislative judgment upon the exercise
of which the Constitution places no restriction and over which the courts are given no control. ").
30 Edwards v. California, 314 U.S. 160, 182 (1941) (Jackson, J., concurring).
I93 0 HARVARD LAW REVIEW

Legislation intended to protect the rights of individuals ought to

be justified, criticized, defended, and judged by reference to those
sources of authority and principles that our polity accepts as bases for
moral judgment. 31 The rationalization of such laws on commerce
clause grounds diverts the attention of legislators, judges, and citizens
from these deeper purposes to the less weighty concerns of "substantial
economic effect" or "cumulative effect" that make up the accretion of
jurisprudence in this area. 32 Although such doctrinal disingenuous-
ness serves the instrumental purpose of immunizing civil rights leg-
islation from judicial invalidation, it remains worthwhile to in-
quire whether such laws could be based on a more candid and ap-
propriate grounding that reflects our highest constitutional aspir-
ations. 33

31 See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 , 291 (1964) (Goldberg,
J., concurring) ("The primary purpose of the Civil Rights Act of 1964 ... is the vindication of
human dignity and not mere economics. ").
32 See generally L. TRIBE, supra note 8, §§ 5-4 to 5-6 , at 305-13.
33 The patchwork of the constitutional bases for congressional power to reach private dis-
criminatory conduct is aptly illustrated by a provision of the Civil Rights Act of 1968 that
sought to define and protect a set of federally protected rights against violent interference on
racial or other discriminatory grounds. See 18 U.S.c. § 245 (1982). The Act enumerates a list
of protected activities, see id. § 245(b)(I)-(3), and imposes criminal sanctions on any person
who interferes with an individual engaging in or seeking to engage in any of the listed activities
on account of his race, color, religion , or national origin, see id. § 245(b).
This statute accurately shows the interplay between the various sources of congressional
power to reach private discriminatory conduct and illustrates the fragmentation of constitutional
authorization. Congress believed that the statute's constitutional basis depended upon the nature
of the substantive activity. First, prohibitions on interference with the use of state facilities or
activities, see id. § 245(b)(2)(A)-(D), were premised on Congress' power under ~he enforcement
provisions of the fourteenth and fifteenth amendment, see S. REp. No. 721 , 90th Cong., 2d
Sess. 7 (1967) [hereinafter Senate Report]. Second, provisions dealing with interference with
rights created by the Civil Rights Act of 1964, see 18 U.S .C . § 245 (b)(2 )(E)-(F), were premised
on the commerce power. See Senate Report, supra, at 6-7 . Finally, provisions of the statute
dealing with voting and interstate travel , see 18 U.S.C. § 245(b)(I)(A), 245(b)(2)(E), were based
on congressional authority to punish private interference with rights of citizenship arising from
the relationship between the individual and the federal government. See Senate Report, supra,
at 6.
The Act illustrates some of the constitutional defects under current doctrine of federal
legislation designed to protect certain individual activities from private action . Only those
provisions of the Act premised on the commerce clause seem immune from constitutional attack,
because Congress clearly has power under the necessary and proper clause to protect rights
created by federal statutory law. See G. GUNTHER, INDIVIDUAL RIGHTS IN CONSTITUTIONAL
LAW 582 (4th ed. 1986). Those portions of the Act based on the power under § 5 of the
fourteenth amendment to protect the right to equal enjoyment of state facilities or activities are
doctrinally unstable. See supra pp. 1927-28. Finally, although recognizing that it had the
power to "make it a crime for any person . . . to interfere with the exercise of rights arising out
of the relationship between the citizen and the National Government," Senate Report, supra, at
6, Congress refused to extend this rationale beyond the holding in E x parte Yarbrough, 110
U.S. 651 (1884), which granted a right to be free from private interference while voting in a
general federal election.
 CITIZENSHIP RIGHTS 193 1

II. CITIZENSHIP AS AN ENDURING VALUE IN THE CONSTITUTION

Although the term "citizen" is used throughout the text of the

original Constitution,34 the document neither defines that term nor
elaborates on any of its broader implications. On a technical level,
"citizen" -like the terms "subject," "inhabitant," or the more generic,
"national" - fills the practical need for a label to describe the rela-
tionship between the individual as a member of a political community
and the polity itself. 35 Yet, the use of the term naturally suggests
questions of greater importance: Who is a citizen? What, if any, is
the substantive content of the relationship that citizenship describes?
Unfortunately, the broader consequences of the use of the word "cit-
izen" were left largely unanswered by the original Constitution. 36 As
Attorney General Bates observed in 1862, "[elighty years of practical
enjoyment of citizenship, under the Constitution, have not sufficed to
teach us either the exact meaning of the word, or the constituent
elements of the thing we prize so highly."37
Despite this lack of constitutional definition, our political thought
has always recognized that "citizen" designates something more than
a mere legal status - that "citizenship means something. "38 One
concept of citizenship is as a binding relationship between the indi-
vidual and the political community, under which the polity is obligated
to guard and respect certain fundamental rights of the individual. 39
As scholars have noted, the roots of this theory of the American polity
reach deep into our national consciousness. 4o According to this con-
ception of "volitional allegiance," membership in the American polit-
ical community is consecrated by an act of choice exercised by the

34 See U.S. CONST. art. I, §§ 2, 3 (qualification for members of House of Representatives

and Senate); id. art. II, § I (qualification for President); id. art. III, § 2 (diversity of state
citizenship clause); id. art. IV, § 2 (privileges and immunities clause).
3S See Minor v. Happersett, 88 U.S. (2I Wall.) 162, 166 (1874); McGovney, American
Citizenship, II COLUM. L. REv. 231, 236, 241-42 (19II). This use of the term "citizen,"
however, does not necessarily exclude resident aliens. See infra note 43.
36 See Minor, 88 U.S. (21 Wall.) at 170; A. BICKEL, THE MORALITY OF CONSENT 35 (1975).
37 Citizenship, lOOp. Att'y Gen. 382, 383 (1868) (opinion dated Nov. 29, 1862) [hereinafter
Citizenship OpinionJ.
38 The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, II4 (1873) (Bradley, J., dissenting).
39 See J. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 173,
208, 287 (1978). For expressions of this sentiment in Supreme Court decisions, see, for example,
United States v. Wong Kim Ark, 169 U.S. 649, 655-66 (1898); and United States v. Cruikshank,
92 U.S. 542, 549 (1876).
40 See, e.g., B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 55-
93 (1967); L. TRIBE, supra note 8, § 8-1, at 560-67; G. WOOD, THE CREATION OF THE
AMERICAN REpUBLIC, 1776-1787, at 259-305 (1969); Corwin, The "Higher Law" Background
of American Constitutional Law, 42 HARV. L. REv. 149 (1928); Grey, Origins of the Unwritten
Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REv. 843
(1978). For a skeptical view of the importance of natural rights in the American constitutional
scheme, see J. ELY, cited above in note 5, at 48-54.
193 2 HARVARD LAW REVIEW [Vol. 102:1925

individual,41 which converts him from a natural person into a "citizen

of the United States, "42 and which entitles him to receive the protec-
tion of those rights flowing from the fundamental maxims of life,
liberty, and property. 43
One way to transform these "terms of allegiance" into concrete
legal protections is to view the rights of citizenship as "fundamental"
or "natural" rights that originate from sources beyond the Constitution
or statutory law. This idea was most clearly expressed in early
constitutional thought by the dominant antebellum interpretation
of the privileges and immunities clause of article IV,44 which was
enacted to guarantee to noncitizens of a state the exercise of the same
privileges that are enjoyed by citizens of that state. 45 In Corfield
v. Coryell,46 Justice Bushrod Washington, on circuit, added a new

41 For example, naturalization laws passed during the early Republic indicate that Congress
was "most concerned with insuring a candidate's sincere commitment to the basic values and
principles of the Republic. Once this commitment was shown, the naturalized alien had the
right to claim virtually all the privileges of full membership." J. KETTNER, supra note 39, at
247 ·
42 See Citizenship Opinion, supra note 37, at 389 ("The Constitution itself does not make
the citizens ; it is, in fact, made by them." (emphasis in original)); J. KETTNER , supra note 39,
at 287.
Professor Bickel, however, presented a sharply contrasting view of the nature of the American
polity, arguing that "the concept of citizenship plays only the most minimal role in the American
constitutional scheme ." A. BICKEL, supra note 36, at 33. In particular, Bickel noted that the
original Constitution presented the "edifying picture" of a polity that bestowed rights and ordered
its relations with "people" and not "citizens." See id. at 35-36. Bickel's descriptive narrative
of the importance of citizenship confuses the idea of citizenship with the mere legal definition
of "citizen. " As discussed in this Note, citizenship is a far broader concept, signifying an
individual's membership in a political community and the resulting relationship of allegiance
and protection that binds the citizen and the state. See infra note 43. In contrast, the legal
definition of which persons are considered "citizens" serves only the administrative requirements
of government and is not vital to the contractarian concept of rights that is at the heart of the
American polity.
43 This notion, however, does not necessarily exclude aliens from the protection of these
same fundamental rights. Aliens have generally been extended the same individual guarantees
as those enjoyed by persons who have achieved the legal status of citizenship. See Note, The
Extraterritorial Applicability of the Fourth Amendment, 102 HARV. L. REv. 1672 , 1675-76 &
n.17 (1989).
The language of the privileges or immunities clause of the fourteenth amendment, however,
seems to restrict the protection of rights to only those persons who have achieved the legal
status of citizenship. See U .S. CONST. amend. XIV, § I. This language, however, could be
construed to refer to a class of rights defined by their relationship to the broader concept of
citizenship, rather than designed to limit the class of beneficiaries to those who have achieved
the status of "citizen ." See Green, The Bill of Rights, the Fourteenth Amendment, and the
Supreme Court , 46 MICH. L. REv. 869, 904 (1948). Furthermore, there is nothing in the
historical record of the adoption of the fourteenth amendment that indicates that the protection
of the clause was meant to be limited only to citizens. See J. ELY, supra note 5, at 25 & n.48 .
44 "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States. " U.S. CONST. art. IV, § 2.
45 See L. TRIBE, supra note 8, § 6-34, at 528-29.
46 6 F. Cas. 546 (C.C .E.D. Pa. 1823) (No. 3,230).
 CITIZENSHIP RIGHTS 1933

gloss on the privileges and immunities clause by holding that it re-

quired a state to grant to nonresidents "those privileges and immunities
which are, in their nature, fundamental; which belong, of right, to
the citizens of all free governments . "47 The list of "fundamental"
activities recognized in Corfield 48 suggests that Washington intended
not merely to declare a catalog of rights of interstate equality; instead,
he intended to create a constitutional basis for federal protection of
fundamental rights of both residents and nonresidents of a state . 49
However, this fundamental rights view of the privileges and immun-
ities clause - which would have broadly expanded national protection
of certain individual liberties - has never gained acceptance with the
Supreme Court. 50 If such rights of citizenship exist, their definition
must be sought in other corners of the Constitution.

A . National Citizenship as a Source of Nontextual Rights

Although "citizenship rights" might be viewed as a mere term of
art describing the enumerated guarantees of the Constitution and
federal law,51 the Supreme Court has applied this notion broadly to
delimit a category of personal rights that are defined by the logic and
necessities of our constitutional structure. 52 Such rights, however, are
not based on appeals to fundamental values or natural justice, but
are defined by the architectural genius of the document itself. 53

47 Id. at 55 r (emphasis added).

48 See id. at 55r-52 .
49 See Hague v. c.I.O ., 307 U.S. 496 , 5rr (r939) (opinion of Roberts, J., joined by Black,
J.). See generally Antieau , Paul's Perverted Privileges or the True Meaning of the Privileges
and Immunities Clause of Article Four, 9 WM. & MARY L. REv. r (r967).
50 See Paul v. Virginia, 75 U.S. (8 Wall.) r68, r80-8r (r868) (holding that a state need not
grant a fundamental right to a nonresident if the state also restricted the enjoyment of that right
by its own residents).
The clearest example of the potential implications of Washington's interpretation of the
privileges and immunities comity clause is found in Chief Justice Taney's apprehension in Dred
Scott v. Sandford, 60 U.S . (r9 How.) 393 (r857). His opinion that blacks, whether free or
enslaved, were not considered to be citizens of the American political community was ostensibly
addressed to the issue of whether a federal court could hear Scott's claim as a case arising under
diversity jurisdiction. See D. FEHRENBACHER, SLAVERY, LAW, & POLITICS r86 (r98r). Taney,
however, spent nearly half of his opinion discussing this jurisdictional question because he
realized that a grant of citizenship to blacks would also allow them to claim the protection for
their fundamental rights under Corfield's interpretation of the privileges and immunities clause.
See Dred Scott, 60 U.S. (9 How.) at 406-07 , 422-23; D. FEHRENBACHER, supra, at r88-<}0.
51 See Presser v. Illinois, rr6 U.S. 252, 266 (r886); Stewart, Federalism and Rights, r9 GA.
L. REv. 917, 930-32 (r985).
52 See G. GUNTHER, supra note 33, at 570 n.2 (stating that the privileges of national
citizenship "have their roots in structural implications of the Constitution").
53 Cj. Nevada v. Hall, 440 U.S. 4ro, 433 (r979) (Rehnquist, J., dissenting) (stating that the
Court "has often relied on notions of a constitutional plan - the implicit ordering of relationships
within the federal system to make the Constitution a workable governing charter"); L. TRIBE ,
supra note 8, § 8-r, at 56r (arguing that Chase's opinion in Calder v. Bull, 3 U.S . (3 Dall.) 386
I934 HARVARD LAW REVIEW

The concept of citizenship rights was given at least verbal recog-

nition in section I of the fourteenth amendment: "No state shall make
or enforce any law which shall abridge the privileges or immunities
of citizens of the United States."54 In the Slaughter-House Cases,55
Justice Miller, writing for the Court, elaborated on this language by
speculating that the rights of national citizenship "owe their existence
to the Federal government, its national character, its Constitution, or
its laws. "56
This definition implies that the rights that flow from national
citizenship can be divided into three categories according to the source
of the right: the body of rights written into the Constitution, rights
that are prescribed in federal statutory law, and certain nontextual
rights which antedate the passage of the fourteenth amendment. Mill-
er's incorporation of the first two categories as rights of citizenship,
however, is largely redundant and adds nothing to the scope of the
clause or to the force of the idea of citizenship; the states were already
obligated to respect these rights under the supremacy clause.57 Under
the last category, however, the Court hinted at a potential basis for
defining the substantive content of rights of citizenship that neither
relied on appeals to their fundamental nature nor merely echoed ex-
isting constitutional guarantees. The Court's illustrations of this last
category suggest that the concept of citizenship rights incorporates a
realm of non textual rights, rooted in the concept of national citizenship
and revolving around the logic of structural relationships resulting
from the Constitution and the formation of a national polity. Cases
that have recognized citizenship rights suggest that Congress has the
power to legislate affirmatively to protect such rights. 58 Under this
view, the fourteenth amendment did not create the privileges of United
States citizenship; rather they "had lain there all along, awaiting the
occasion for their assertion and recognition. "59

(1 798), was based not on an appeal to notions of natural justice, but that "the limits [Chase]
expounded were implied by the creation and character of the legislature itself' (emphasis in
original)).
54 U.S. CONST. amend. XIV, § I.
55 83 U.S. (16 Wall.) 36 (1873).
56 Id. at 79. This formulation has been repeated with minor variations in subsequent cases.
See, e.g., In re Quarles, 158 U.S. 532, 536 (1895) (holding that a citizenship right "does not
depend upon any of the amendments to the Constitution, but arises out of the creation and
establishment of the Constitution itself of a national government").
57 See Benoit, The Privileges or Immunities Clause of the Fourteenth Amendment: Can There
Be Life After Death?, II SUFFOLK L. REv. 61, 67 (1976).
58 See, e.g., Slaughter-House, 83 U.S. (16 Wall.) at 79-80. At the time of the decision in
Slaughter-House , such rights included the right to diplomatic protection, to petition Congress,
to communicate through a post office, and to take slaves into any territory. See 6 C. FAIRMAN,
HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION
1864-1888, PART ONE II25-27 (1971).
59 7 C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONST~UC­
TION AND REUNION 1864-1888, PART Two 566 (1987); see also I C. ANTIEAU, MODERN
CONSTITUTIONAL LAW § 9:9, at 666 (1969); G. GUNTHER, supra note 33, at 570 n.2.
 CITIZENSHIP RIGHTS I935

The most prominent example of this definition of rights of citizen-

ship is the Court's treatment of the right to travel - the right men-
tioned in the Slaughter-House opinion that has received the most
extensive doctrinal development. The doctrinal roots of the right to
travel are found in Miller's own opinion in Crandall v. Nevada, 60 a
decision handed down before the passage of the fourteenth amend-
ment. 61 In Crandall, the Supreme Court held that a Nevada law,
which imposed a tax on each person leaving the state by means of
public transportation, infringed on an individual's right to travel freely
throughout the nation. 62 Refusing to analyze the law on the basis of
textual challenges to its validity,63 the Court instead held that the
right to travel was an implicit guarantee of the Constitution that
emanated from certain structural considerations of the federal union. 64
The reasoning in Crandall illustrates how the Court has inferred
individual rights from the structural logic of the Constitution itself.
The Court initially noted that the federal government had the "right
to call to [the national capital] any or all of its citizens to aid in its
service" and that this right must be free from state interference. 65
Extrapolating from this initial premise, Justice Miller held that this
right of the national government was accompanied by the "correlative"
right of an individual to travel throughout the nation to serve the
needs of the federal government. 66 Under the facts pleaded in the
case, however, there was no indication that the passengers affected
by the Nevada tax had been engaged in any governmental business. 67
Thus, the purported rationale for its holding notwithstanding, the
Court actually recognized a broader right of the individual, not de-
pendent on the purpose of the trip, to travel throughout the Union
unhampered by state restrictions. 68

60 73 u .s. (6 Wall.) 35 (1868).

61 This fact supports the view that rights of citizenship are implicit from the formation of a
national political union and do not originate from any written provision of the Constitution.
See supra p. 1934.
62 See Crandall, 73 U.S . (6 WaiL) at 43-49.
63 See id. at 40-43.
64 See id. at 43-44; see also The Passenger Cases, 48 U .S. (7 How.) 283 , 492 (1849) (Taney,
C.]., dissenting), quoted in Crandall, 73 U.S. (6 WaiL) at 49 ("We are all citizens of the United
States; and, as members of the same community, must have the right to pass and repass through
every part of it without interruption .... "). Seemingly uncomfortable with basing a constitu-
tional right on nontextual grounds , various members of the Court have sought to ground the
right to travel in a number of textual provisions. See, e.g., Zobel v. Williams, 457 U .S. 55 ,
78-81 (1982) (O'Connor, ]., concurring in the judgment) (privileges and immunities clause);
Shapiro v. Thompson, 394 U .S. 618, 669-71 (1969) (Harlan, ]., dissenting) (due process clause);
Crandall , 73 U.S. (6 WaiL) at 49 (Clifford, ]. , concurring) (commerce clause).
65 Crandall, 73 U.S. (6 WaiL ) at 43.
66 See id. at 44.
67 See Edwards v. California, 314 U .S. 160, 178 (1941) (Douglas, ] ., concurring).
68 See Lomen, Privileges and Immunities Under the Fourteenth Amendment , 18 WASH. L.
REv. 120, 122 (1943).
 HARVARD LAW REVIEW [Vol. 102:1925

The use of structural constitutional considerations to infer individ-

ual rights is also illustrated by United States v . Cruikshank,69 decided
shortly after the passage of the fourteenth amendment, in which the
Court held that the right of individuals to assemble in order to petition
Congress on matters of national concern "is an attribute of national
citizenship and, as such, under the protection of and guarantied [sic]
by, the United States."70 The defendants in Cruikshank had been
indicted under a federal criminal conspiracy statute for participating
in a conspiracy to hinder the free exercise of a citizen's "[l]awful right
and privilege to peaceably assemble together with each other and with
other citizens .. . for a peaceful and lawful purpose."71 The Court
held that this allegation failed to make out a lawful indictment because
the right to assemble was a right committed to the protection of the
states and therefore was not within the bounds of the conspiracy
statute. 72
In dicta, however, Chief Justice Waite suggested that the indict-
ment would have been lawful had it been amended to allege that the
defendants had interfered with "[t]he right of the people peaceably to
assemble for the purpose of petitioning Congress for a redress of griev-
ances, or for any thing else connected with the powers or the duties
of the National Government."73 Waite argued that the "very idea of
a government, republican in form," implied that the right to assemble
for the purpose of petitioning Congress on matters of national concern
was an attribute of national citizenship and could therefore be pro-
tected against both governmental and private interference . 74 As in
Crandall, the Court, without mention of the privileges or immunities
clause, was acknowledging a right of national citizenship. 75

69 92 542 (1876).
U.S.
70 Id . at 552.
71 Id . at 55!.
72 See id. at 551-5 2.
73 Id . at 552 (emphasis added).
74 See id. at 552-53; G. GUNTHER, supra note 33, at 530; cf. Hague v. C.I.O., 307 U.S.
496 (1939) (opinion of Roberts, J., joined by Black, J.) (holding that the right to assemble
peaceably to discuss federal legislation is a privilege or immunity of United States citizenship
under the fourteenth amendment).
75 Other examples of citizenship rights derived from the structural relationships in the Con-
stitution include the right to be free from private interference in federal primary elections, see
United States v. Classic, 313 U.S. 299 (1941), the right to inform federal officials of violations
of federal law, see In re Quarles, 158 U.S. 532 (1895), the right to be free from violence while
in the custody of a federal marshal, see Logan v. United States, 144 U .S. 263 (1892), the right
to homestead free from private interference , see United States v. Waddell, 112 U.S. 76 (1884),
and the right to vote in a general federal election free from interference, see Ex parte Yarbrough,
1I0 U .S. 65 I (1884). For a listing of citizenship rights recognized by lower courts, see 2 C.
ANTIEAU, cited above in note 59, § 12:109, at 376 n. lI . See generally Brest, The Federal
Government's Power To Protect Negroes and Civil Rights Workers Against Privately Inflicted
Harm, I HARV. C.R.-C.L. L. REv. 2, 16-25 (1966); Feuerstein, Civil Rights Crimes and the
 CITIZENSHIP RIGHTS 1937

B. Inferring from Structures and Relationships

I. Interpretive Heuristics. - Decisions that have recognized the

existence of certain nontextual guarantees under the rubric of "citizen-
ship rights" acknowledge a source for the implication of unenumerated
rights within our constitutional scheme.1 6 Unlike theories of funda-
mental rights jurisprudence,77 these cases suggest that such rights are
inherent within the constitutional scheme of our polity and are not
dependent on an external, preexisting, moral or political theory. As
a member of the national polity, the individual, in his status as citizen,
is entitled to protection not only of rights enumerated in the Consti-
tution, but also of rights that must implicitly arise as a consequence
of certain structures and relationships within that document. 78
The Supreme Court has relied on two major interpretive themes
to give substantive content to guarantees of citizenship rights. Under
the first theme, the Court has inferred individual guarantees from the
structural necessities of the formation of a national polity. Cases
recognizing such rights suggest that certain individual activities rise
to the level of a right of citizenship because they are an integral part
of a function or power of the national government. Such rights there-
fore are not strictly "personal rights" derived from an entitlement
inherent in an individual, but are defined solely by the need to effec-
tuate a structural power or function of the national government. For
example, in Crandall, the Court justified an individual's right to in-

Federal Power To Punish Private Individuals Jor Inteiference with Federally Secured Rights,
19 VAND. L. REv. 641, 643-67 (1966); Meyers, Federal Privileges and Immunities: Application
to Ingress and Egress, 29 CORNELL L.Q. 489, 493-98 (1944).
76 See 2 C. ANTIEAU, supra note 59, §§ 1l:1l-:12, at 196-200.
77 See generally Brest, The Fundamental Rights Controversy: Th e Essential Contradictions
oj Normative Constitutional Scholarship, 90 YALE L.J, 1063 (1981).
78 These rights, however, do not attach to an individual because of his legal status as a
citizen qua citizen. Rather, the status of "citizenship" - broadly defined as being a constituent
member of a political community - denominates the political relationship from which the rights
arise; it does not act to limit the beneficiaries of those rights. See supra notes 42-43.
The original insight into the existence and relevance of constitutional interpretation from
structures and relationships belongs to Professor Charles Black. See generally C. BLACK, supra
note 27. The analysis in this Note departs from Black's view that conceptions of "citizenship"
within the citizenship clause of the fourteenth amendment could provide an alternative doctrinal
basis for much of the rights derived from the due process and equal protection clauses. See id.
at 51-66. On this point, Black seems to go beyond his structural analysis to rest his view on
some prepolitical notion of citizenship. See id. at 61-66. This Note takes a narrower view of
the concept and assumes that the normative content of "citizenship" is exhausted by the structural
imperatives of the Constitution. Also, by resting his proposal on the citizenship clause, Black
seems destined to face a losing battle with the state action requirement of the fourteenth
amendment. This Note, however, shares Professor Black's aspiration that Congress, in the
preamble of a piece of civil rights legislation, will someday invoke "its power to declare and
give effect to the rights of citizenship as positive rights to full membership in the community."
Id . at 58.
 HARVARD LAW REVIEW [Vol. 102:1925

terstate travel on the grounds that infringement of this right would

impair the ability of the federal government to call citizens to its
service at the national capital. 79 Similarly, the Court stated in Cruik-
shank that the nature of republican government required constitutional
protection for the right of persons to assemble for purposes of peti-
tioning Congress. 80 Although the Cruikshank Court was not specific
about the origins of this right, later interpretations suggest that the
very nature of American government is diminished if individuals do
not have a right to gather together to discuss issues of national im-
portance. 81 Thus, in propounding both the right to interstate travel
and the right to gather to discuss questions of national import, the
Court emphasized that these individual activities were necessary to
preserve a function or attribute of the national government. 82
Under the second interpretive theme, the Court has inferred citi-
zenship rights from those instances in which the national government
is bound in a direct relationship to a citizen by an important consti-
tutional policy. This relationship creates a duty in the national gov-
ernment to protect the citizen while in the province of the relationship
and a correlative entitlement in the individual to receive such protec-
tion. 83 The relationship between the government and the citizen can
be created by the Constitution itself,84 an exercise of a constitutional
power,85 or a necessary attribute of the national government. 86 This

79 See Crandall, 73 U.S. (6 Wall.) at 43; cj. United States v. Guest, 383 U.S. 745, 758 (1966)
(stating that the right to travel was "so elementary" that it "was conceived from the beginning
to be a necessary concomitant of the stronger Union the Constitution created").
80 See Cruikshank , 92 U.S. at 552-53.

8 1 See Hague v. C.1.0., 307 U.S. 496,513 (1939) (opinion of Roberts, J., joined by Black,
] .) (noting that "[c]itizenship of the United States would be little better than a name if it did
not carry with it the right to discuss national legislation and the benefits, advantages, and
opportunities to accrue to citizens therefrom").
82 The Court, however, was inconsistent in the level of generality at which it recognized
these rights in Crandall and Cruikshank . Although the rationale for the right to interstate travel
was expressed in Crandall in terms of the need of the national government to call citizens to its
service, there was no indication that the party had been engaged in government business or
that future application of the right to travel must be limited to the circumstances contemplated
by the Court's rationale. See supra p . 1935 . In Cruikshank, however, the Court narrowly
defined the right to assemble to encompass only those circumstances in which individuals were
attempting to discuss issues of national significance. See supra p. 1936. A more expansive
interpretation of this right would have expanded the scope of first amendment prohibitions
beyond the realm of congressional action. See Cruikshank, 92 U.S. at 551-53.
83 See Guest, 383 U.S. at 771-72 (Harlan, J., dissenting in part and concurring in part).
84 See, e.g., Ex parte Yarbrough, 110 U .S. 651, 662 (1884) (holding that a citizen's right to
vote in a congressional election creates a duty "to see that he may exercise this right freely and
to protect him from violence while so doing") .
85 See, e.g., United States v. Waddell, 112 U.S. 76, 80 (1884) (holding that the right to
homestead on public lands creates a duty to protect the individual so that he may "remain on
the land in order to ... perfect his incipient title [under the Homestead Act]").
86 See, e.g., In re Quarles, 158 U.S. 532 (1895) (holding that the right to inform a federal
official of a violation of law creates a duty to protect the citizen in the performance of that act).
 CITIZENSHIP RIGHTS I939

last category is illustrated by Logan v. United States,87 in which the

Court established the right of prisoners to be free from violent inter-
ference while in the custody of a federal marshal. 88 In recognizing
this right, the Court stated:

[T]he right in question does not depend upon any of the amendments
to the Constitution, but arises out of the creation and establishment
. . . of a national government . . .. Any government which has
power to indict, try and punish for crime, and to arrest the accused
and hold them in safekeeping until trial, must have the power and
the duty to protect against unlawful interference its prisoners so held
89

These two interpretive sources of citizenship rights - the structure

and nature of national government and relationships between the
federal government and the citizen - are not necessarily mutually
exclusive . For example, in Ex parte Yarbrough,90 the potential for
these sources to overlap was apparent in the Supreme Court's holding
that an individual had the right to be free from violence while voting
in a federal congressional election. 91 The Court chose not to base its
opinion on Congress' power to regulate the time, place, and manner
of holding federal elections; it held instead that the right derived from
the federal government's duty to protect the individual in his relation-
ship to the government as a voter, and also on "the necessity of the
government itself, that its service shall be free from the adverse
influence of force and fraud. "92 Yarbrough therefore illustrates that
certain zones of individual activity deserve protection as citizenship
rights under both of the dominant rationales.
2 . Direct Federal Protection. - Because rights of citizenship are
considered to flow from the structural logic of the Constitution, such
rights can be protected against both public and private interference. 93
For example, in construing the right to travel recognized in Crandall,
the Court in United States v. Guest held that a criminal conspiracy
statute reached private discriminatory conduct that infringed on the
exercise of an individual's right to interstate travel. 94 Brushing aside

81 144 U.S. 263 (1892).

88 See id. at 293-96.
89Id. at 294.
90 IIO U.S. 651 (1884).
91 See id. at 662-67.
92 Id. at 662.
93 See Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 383-85 (1979) (Stevens,
J., concurring) (stating that "privileges and immunities of citizenship" not derived from the
fourteenth amendment can be protected against interference by private action); G. GUNTHER,
supra note 33, at 570 & n.2.
94 See Guest, 383 U.S. at 757-60.
I94 0 HARVARD LAW REVIEW [Vol. 102:1925

precedents that suggested that the right to travel could be enforced

only against state infringement,95 the Court noted:

The right to interstate travel is a right that the Constitution itself

guarantees . . . . Although [cases interpreting the right to travel]
involved governmental interference with the right of free interstate
travel, their reasoning fully supports the conclusion that the consti-
tutional right of interstate travel is a right secured against interference
from any source whatever, whether governmental or private. . . . [I]t
is important to reiterate that the right to travel freely . . . finds
constitutional protection that is quite independent of the Fourteenth
Amendment. 96

Thus, the national government has the power to enforce rights of

citizenship directly against private infringement, unconstrained by the
state action requirement of the fourteenth amendment. 97
Decisions that have recognized various privileges and immunities
of national citizenship suggest that Congress has the power to legislate
affirmatively to protect such rights; the existence of a right of national
citizenship creates a correlative duty in Congress to enforce such rights
against private interference. 98 The scope of congressional power to
protect citizenship rights expressed in these cases is simply a derivative
of the well established constitutional principle that Congress has the
power to pursue aims that are within the scope of the Constitution. 99

C. Limitations Imposed by the Dualistic Nature of

American Citizenship
Despite the Supreme Court's willingness to recognize rights of
national citizenship in certain contexts, the actual rights inferred by

95 Justice Harlan, in his partial dissent, argued that the Court's previous decisions had
protected the right to travel only against oppressive state action. See id. at 766-67 (Harlan,
J., concurring in part and dissenting in part) (citing United States v. Wheeler, 254 U.S. 281
(1920)). The majority rather brusquely countered that these decisions had been placed into
doubt by later cases, implying that any state action limitation was now being overruled. See
383 U.S. at 759 n.16.
961d. at 759 n.17 (emphasis added); see also Griffin v. Breckenridge, 403 U.S. 88, 105-06
(197 1).
97 See Novotny, 442 U.S. at 382-83 (Stevens, J" concurring); United States v. Williams, 341
U.S. 70, 77-82 (1951).
98 See Brest, supra note 75, at 16-22; Feuerstein, supra note 75 , at 643-50. The national
government's duty of protection for fourteenth amendment rights, however, is fulfilled when it
guarantees a right against state impairment. See Logan v. United States, 144 U.S. 263, 288-
89 (1892). But cf. Brewer v. Hoxie School Dist. No. 46, 238 F.2d 91, 98-<)9 (8th Cir. 1956)
(holding that a school board has a federal right to be free from private interference in performing
its fourteenth amendment duty to desegregate public schools).
99 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316 (1819); L. TRIBE, supra note 8, § 5-3, at 301-05.
1989] CITIZENSHIP RIGHTS 1941

the Court have been relatively narrow in scope. 100 Perhaps the strong-
est explanation for this relative narrowness lies in the historically
dualistic nature of American citizenship: the citizen owed allegiance
to and deserved protection from both the national and state govern-
ments. lOl Under this conception of citizenship, however, most fun-
damental rights were recognized and protected by state institutions
and laws, and the national government was limited to safeguarding
the much narrower guarantees that flowed from the federal Consti-
tution and statutory law. 102
The most important illustration of this historical understanding of
citizenship is Justice Miller's interpretation of the privileges or im-
munities clause in the Slaughter-House Cases. The Court rejected the
plaintiffs' argument that the clause had transferred the source of an
individual's fundamental rights, formerly embodied by the protections
of his state citizenship, to his status as a citizen of the United States.
Instead, the Court held that the clause did not create any new federal
rights; it simply served as an additional written guarantee for currently
recognized rights. 103 To Miller, the protection of the fundamental
rights of citizenship, as defined in Coifield, 104 lay wholly within the
province of the states. 105 Miller claimed that it was impossible for
the framers of the fourteenth amendment to have intended "to transfer
the security and protection of all the civil rights ... from the states
to the Federal government" or "to bring within the power of Congress
the entire domain of civil rights heretofore belonging exclusively to
the states. "106 The resulting interpretation of the privileges or im-
munities clause - which did not expand the role of the national
government by one jot - was so narrow as to reduce the clause to a

100 The method of inferring such rights from the imperatives of constitutional structure is
capable of being broadly expanded to cover many more zones of individual activity than are
recognized under current doctrine. Cf. C. BLACK, supra note 27, at 33-48 (arguing that most
of the protections of the first amendment could be inferred from structural analysis).
101 See Twining v. New Jersey, 2 II U.S. 79, 96 (I908) . This dualism is aptly illustrated by
the Court's framing of the main issue in Logan v. United States :
The principal question in this case is whether the right of a citizen of the United States,
in the custody of a United States marshal under a lawful commitment to answer for an
offense against the United States, to be protected against lawless violence, is a right
secured to him by the Constitution or laws of the United States, or whether it is a right
which can be vindicated only under the laws of the several states.
I44 U.S. at 282 (emphasis added).
102 The dualistic nature of citizenship is a corollary to the nineteenth-century theory of "dual
federalism," which viewed the states and the national government as occupying independent
and autonomous spheres of influence in which each was supreme. See generally Corwin, The
Passing of Dual Federalism , 36 VA. L. REv. I (I950) .
103 See Benoit, supra note 57 , at 67 .
104 See supra pp. I932-33 .
105 See Slaughter-House, 83 U.S. (I6 Wall. ) at 75-78 .
106 [d . at 77.
1942 HARVARD LAW REVIEW

"practical nullity. "107 Despite occasional platitudes to the contrary, 108

the Court has generally clung to Miller's narrow construction of the
privileges or immunities clause, and thus foreclosed the possibility that
the protection of rights, defined in relation to the concept of citizen-
ship, would be transferred to the federal government.109

III. CITIZENSHIP IN THE MODERN ERA

The Supreme Court - while declining the invitation extended by
the language of the privileges or immunities clause to engage in fun-
damental rights jurisprudence l10 - has recognized a nontextual source
of legislative authority, grounded in the structural logic of the consti-
tutional framework, that empowers Congress to define and protect the
rights of national citizenship. This source of congressional power has
the potential to be boldly expanded in order to give real constitutional
substance to our ideals of citizenship. This Part argues that the
historical fetters imposed by the dualistic conception of citizenship
have been overtaken by transformations in the nature of our polity
and the meaning of national citizenship since the decision in Slaughter-
House. A sympathetic Congress should employ this modern concep-
tion of national citizenship as a foundation for legislation protecting
important domains of personal activity from private, nongovernmental
interference.

A. Modernizing the Slaughter-House Cases

A century of constitutional development has cast grave doubt on
the dualistic conception of citizenship enshrined in Slaughter-House.
Indeed, the past hundred years has revived the revolution in federal-
state relations that the S laughter-House dissenters argued had been

107 E. CORWIN, THE CONSTITUTION OF THE UNITED STATES OF AMERICA 965 (1953).
However, the dissenters vigorously argued that the clause had been intended to effect the very
revolution in citizenship that Miller feared by making the national government the primary
guardians of all fundamental rights. See Slaughter-House, 83 U.S. (16 Wall.) at 122 (Bradley,
J" dissenting) ("[I]t was the intention of the people of this country in adopting [the fourteenth
amendment] to provide national security against violation . .. of the fundamental rights of the
citizen.").
108 See, e.g., Selective Draft Law Cases, 245 U.S. 366, 389 (1918) (stating that the fourteenth
amendment made national citizenship the "paramount and dominant" citizenship in the country).
109 Within a few decades, however, the views of the Slaughter-House dissenters would form
the springboard for the Court's plunge into "Lochnering" under the guise of due process. See
Howard, The Privileges and Immunities of Federal Citizenship and Colgate v. Harvey, 1939
U. PA. L. REv. 262, 272.
110 The clause has been invoked only once by a majority of the Court to invalidate a state
law, see Colgate v. Harvey, 296 U.S. 404 (1935), but this case was shortly overruled, see
Madden v. Kentucky, 309 U.S. 83 (1940).
 CITIZENSHIP RIGHTS 1943

intended by the framers of the privileges or immunities clause. III The

high wall between the spheres of national and state responsibilities
has virtually collapsed. The federal government now has coextensive
jurisdiction with the states to protect fundamental human activities
and has acted to supplement and, in some narrow respects, replace
the guarantees of individual rights provided by local institutions and
laws. 112 Not only has the dualistic conception of citizenship been
rendered anachronistic by judicial expansion of the due process and
equal protection clauses,113 but Congress has contributed to this new
constitutional environment by passing sweeping civil rights legislation
reflecting a national policy of protecting important substantive
rights. 114
Our conceptions of citizenship also have not been static. "[T]he
privilege of membership in this national community," Professor Fair-
man has noted, "must broaden to include what has become essential
under prevailing circumstances. "115 Since Slaughter-House, there has
been such a sea change reflecting a matured consensus that one of the
necessary attributes of national citizenship is freedom from unaccept-
able forms of nongovernmental discriminatory conduct. This shift in
popular and legal conceptions is most fully developed in the Court's
decisions dealing with private racist acts. During the reign of the
dualistic conception of national citizenship, the Court consistently
declared, in almost callous terms, that such discriminatory conduct
did not violate shared notions of citizenship. 116 It is, however, indic-
ative of these changed attitudes that the Court, in recently upholding
the denial of tax-exempt status to a university on account of its racially
discriminatory admissions policy, could unequivocally state that "racial
discrimination in education violates a most fundamental national pub-
lic policy. "117

111 See Benoit, supra note 57, at 100.

112 See Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L .
REv. 489, 490-95 (1977).
113 See H. ABRAHAM, FREEDOM AND THE COURT 62 (5th ed. 1988).
114 See supra note 2 I and accompanying text.
115 C. FAIRMAN, supra note 58, at 1388 (emphasis added).
116 See, e.g., The Civil Rights Cases, 109 U.S. 3, 29 (1883) ("[N]o one ... thought that it
was any invasion of their personal status as freemen because they were not admitted to all the
privileges enjoyed by white citizens, or because they were subjected to discriminations in the
enjoyment of accommodations. ").
117 Bob Jones Univ. v. United States, 461 U.S. 574, 593 (1983). Along similar lines, Professor
Karst has argued that the Warren Court's equal protection jurisprudence reflected the continuing
development of the "principle of equal citizenship, which presumptively guarantees to each
individual the right to be treated by the organized society as a respected, responsible, and
participating member." Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship
Under the Fourteenth Amendment, 91 HARV. L. REv. I, 4 (1977). For his analysis of the
historical development of this principle and its modern revival, see id . at II-38.
1944 HARVARD LAW REVIEW

The dualistic vision of citizenship - along with its corollary that

views states as the principal protectors of individual rights and its
narrow vision of the meaning of citizenship - has therefore seen its
death and burial. Yet, one of its lingering legacies is the doctrinal
limits imposed on sources of congressional power to protect personal
rights against private infringement. This remains a critical constraint
in an era in which private conduct poses as great a threat to individual
liberties as do the actions of governments.

B. A Legislative Proposal
As the Supreme Court's intransigence in exploiting the full poten-
tial of the privileges or immunities clause illustrates,118 the dualistic
conception of citizenship has prevented the Court from broadly delv-
ing into the task of interpreting the rights of national citizenship.
Given this unwillingness by the Supreme Court, a Congress sympa-
thetic to protecting individual rights against nongovernmental inter-
ference should seek to define, recognize, and protect rights of national
citizenship through its ordinary legislative processes. 119
Although currently recognized citizenship rights have all been es-
tablished by judicial decision, these cases suggest that such rights are
merely attributes of a broader constitutional norm of "citizenship" -
a value defined by the structural and relational imperatives of the
Constitution. This principle is as much a part of the Constitution as
a right derived from textual explication. As Part II suggested, this
structural framework provides a nontextual source of legislative au-
thority that both defines the legitimate ends and provides the necessary
constitutional authorization for an exercise of this congressional
power. 120 Thus, under its general legislative power to employ all
means related to ends within the scope of a constitutional power, 121

11 8 S ee, e.g., Adamson v. California, 332 U .S. 46, 61-62 (1947) (Frankfurter, ]., concurring)
(prophesying "the mischievous uses to which that clause would lend itself if . . . not confined
[by the Slaughter-House interpretation)").
11 9 See Cox, The Supreme Court, I965 Term - Foreword: Constitutional Adjudication and
the Promotion oj Human Rights , 80 HARV. L . REv. 91 , 94 (1966) (stating that "it is highly
unlikely that the Court will evolve a rationale bringing nongovernmental action under those
prohibitions, without Congressional action , even though the private barriers interfere with
fundamental rights").
120 S ee supra pp. 1933-40.

12 1 S ee McCulloch v. Maryland, 17 U .S. (4 Wheat.) 316 (1819). Although the doctrine of

congressional implied powers is usually framed in relation to an enumerated power in the

Constitution , the ends of legitimate congressional action need not be strictly confined to powers
enumerated in article I , § 8 . See L . TRIBE, supra note 8, § 5-3, at 304-05 . The structural and
relational imperatives of the Constitution are grounded in that document and are as legitimate
an end of congressional power as any goal spelled out in the text. Indeed, Marshall's opinion
in McCullo ch, the font of the implied powers doctrine, could be read to rest on the same type
of structural interpretation . See C . BLACK, supra note 27, at 14-15 . But cf. Gunther, Unear-
 CITIZENSHIP RIGHTS 1945

Congress has the power to rationally determine the scope and limits
of the rights of citizenship in accordance with the interpretive heuristic
of structures and relationships. 122
Congressional recognition of such rights would yield several insti-
tutional advantages over case-by-case judicial development. First, by
subjecting the topic to open and robust debate in the public arena,
the process of writing such rights into law would be more widely
accepted by the citizenry than if such rights were created by judicial
fiat. 123 Indeed, deliberation on the question of which rights are nec-
essary attributes of our national citizenship would perform an edu-
cative function by instilling a habit of public discussion on the tone
and quality of our public life. 124 Second, Congress could tailor such
legislation to ensure that a broad interpretation of these guarantees
does not trench too closely on state sovereignty and the values of
federalism . 12s Finally, Congress has greater flexibility than the courts
to coordinate rights of national citizenship with existing civil rights

thing John Marshall's Major Out-of-Court Constitutional Commentary, 21 STAN. L. REv. 449
(1969) (discovering letters of Marshall which indicate that he did not view McCulloch as
endorsing a doctrine of unlimited congressional powers). Finally, cases that have recognized
citizenship rights suggest that Congress has the power to legislate affirmatively to protect such
rights. S ee supra pp. 1939-40.
122 This conclusion is supported by analogies to Congress' power under the commerce clause
and the thirteenth amendment to determine the scope of protections accorded by those texts.
See supra pp. 1926-30. The courts, as under sources of congressional power, would still retain
the role of policing Congress' power to define and protect rights of citizenship under a rationality
test.
123 See Cox, supra note II9, at 94.
124 Cf. Brest, Constitutional Citizenship, 34 CLEV. ST. L . REv. 175 (1986) (arguing that
there should be more public participation in constitutional decisionmaking).
125 See J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 171-259
(1980); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Com-
. position and Selection of the National Government, S4 COLUM. L. REv. 543 (1954). One
objection to the theory proposed in this Note - that the scope of Congress' power to recognize
and defend rights should extend to the very limit of the logic of our constitutional structure -
is that it is destructive of the values of federalism generally derived from our constitutional
order or grounded in the tenth amendment. However, this proposal makes Congress the
principal arbiter of such issues and, like current commerce clause doctrine, relies on national
political processes to provide the necessary outlet for the venting of federalism concerns. See
Garcia v. San Antonio Metro. Transit Auth., 469 U .S. 528 (1985) . But cf. Note, Over-Protective
Jurisdiction?: A State Sovereignty Theory of Federal Questions, 102 HARV. L. REv. 1948 (1989)
(arguing that federalism safeguards implicit in article III limit the scope of federal arising-under
jurisdiction).
Nor should the theory of congressional power proposed in this Note be viewed as extending
to an "inner circle" of private conduct in which other conflicting liberties may be implicated,
such as an individual's associational rights. See Buchanan, Federal Regulation of Private Racial
Prejudice: A Study of Law in Search of Morality, S6 IOWA L . REv. 473, 526-30. For example,
Congress presumably could not prohibit racial discrimination in marriage contracts without
infringing an individual's right to association or privacy. Cf. Runyon, 427 U.S. at 175-79
(holdil1g that application of 42 U.S.C. § 1981 to a private school that discriminated against
blacks does not violate the white children's associational or privacy rights) .
 HARVARD LAW REVIEW

legislation in order to create a comprehensive and cohesive regime of

individual guarantees. 126
What real results can be expected from Congress' exercise of its
power to determine the rights of citizenship? Although not a self-
defining concept, citizenship represents a balance between our national
traditions and our evolving ideas of membership in the political com-
munity.127 The Supreme Court's verbal linkage of ideas of citizenship
to rights flowing from structural implications of the Constitution,
however, provides both a defining principle and a source of legislative
authority with which to give this idea substantive relevance. Faced
with constraints on its current powers to protect the individual from
private discriminatory harm, Congress should use this non textual basis
of legislative authority to develop a schedule of rights that are deter-
mined through the mode of structural and relational interpretation.
Yet, in making these legislative determinations, Congress should be
guided not merely by the craft-like task of doctrinal manipulation,
but also by deliberation on the meaning of our citizenship. Although
all of our aspirations of citizenship may not be within the reach of
this source of legislative authority, the results of such a dialogue would
provide a guide for determining those activities, within the realm of
structural and relational inference, that are so valued and important
to our polity as to be considered rights of American citizenship.

IV. CONCLUSION

Although the title of "citizen" has been reduced to a mere legal

status, the belief that "citizenship means something" remains a pow-
erful emotional and symbolic legacy in our political traditions. This
Note has argued that the Supreme Court on a few occasions has
attempted to transform this sentiment into concrete constitutional doc-
trine by recognizing a class of rights derived from the structural and
relational imperatives of our constitutional system. These opinions -
although reflecting an era in which local institutions and laws were
the primary guardians of individual liberties - illustrate basic prin-
ciples of constitutional interpretation capable of both further refine-

126 See Sager, Fair Measure : The Legal Status of Underenforced Constitutional Norms, 9I
HARv. L. REv. I2I2 (I978) (arguing that Congress should go beyond judicial constructions to
protect underenforced constitutional norms).
127 Cj. Poe v. Ullman, 367 U .S. 497, 542 (I96I) (Harlan, ]. , dissenting) (observing that the
meaning of due process reflects a "balance struck by this country, having regard to what history
teaches are the traditions from which it developed as well as the traditions from which it broke.
That tradition is a living thing." (emphasis added)).
 CITIZENSHIP RIGHTS 1947

ment and growth to provide national protection against all forms of

infringement for fundamental human activities and immunities that
have become hallmarks of American citizenship. In the hands of a
sympathetic Congress, these principles can contribute to a coherent
and comprehensive regime of national protection for the rights of
American citizenship.