[0:00:11 Speaker 0] mm, well, I'd like to welcome you all to the first 

[0:00:24 Speaker 1] in 

[0:00:25 Speaker 0] our series of lectures put 

[0:00:26 Speaker 1] on by the thomas, Jefferson Center for the study of cortex and ideas. That's the great books undergraduate program here at the University of texas. And we have some brochures on these front tables and uh 

[0:00:40 Speaker 0] one page 

[0:00:41 Speaker 1] flyers up here, you could look at anyone who isn't familiar with, 

[0:00:43 Speaker 0] it, would like to know more about 

[0:00:45 Speaker 1] it, the course offerings and the other things we do, including an undergraduate book club. In addition to the lecture series. Uh this is the first in our 

[0:00:55 Speaker 0] lecture series 

[0:00:56 Speaker 1] in the jefferson center, but it's also, the University of texas is official way of fulfilling its legal obligation to celebrate Constitution Day under a law that was sponsored by Senator Harry Byrd some years back, all public universities in the United States are supposed to celebrate september 17th with an intellectual ah presentation on the constitution. And we are doing that, that's, we've taken that responsibility to Jefferson Center has this year. Uh and I'm very pleased and happy to have with us as our speaker, Professor Michaels Acourt, the nancy director professor at the Department of Government at the University of Notre Dame. Uh and a man who has a long and distinguished scholarly career in interpreting the constitution uh in light of its philosophic and theoretical uh roots and antioxidants and foundations. He's written broadly and illuminated in 

[0:01:58 Speaker 0] a rich and profound 

[0:01:59 Speaker 1] way the entire history of modern political thought uh 

[0:02:04 Speaker 0] starting with the 

[0:02:05 Speaker 1] republicanism, of the renaissance right up to and beyond the american founding. And today he is going to uh honor and enlighten us with a talk 

[0:02:14 Speaker 0] on the 14th 

[0:02:15 Speaker 1] amendment as the completion of Madison's Constitution. Mhm. Next 

[0:02:20 Speaker 0] time. Well, my topic has announced is completing the constitution, The 14th Amendment and it seems to me the place to begin is with the 14th Amendment. And we have passed out some sheets which have the text of the 14th Amendment on them as item D just to keep you awake. I've put them not in the order in which we're going to be looking at them. But so item D is the text of section one of the 14th amendment, which is the overtime has been proven to be the most important part Of the 14th Amendment. You might take a look at that for a moment. Um and you might also, when you finish that, take a look at sec item K on the list uh which is section five of the 14th amendment, which is also of some importance. And we'll figure a bit in my talk. Now. If you did take a look at the 14th amendment text there, you probably noticed that some of it sounds pretty familiar. The Amendment talks about due process of law. It talks about equal protection of the laws. These are two terms to notions that have been widely discussed in the conversations about the Constitution And in fact ever since the 14th Amendment was added to the constitution in 1868, just after the civil war, um it's one of the so called Reconstruction amendments, a series of three amendments that were adopted immediately or soon after the Civil War. Um this amendment, though the 14th has been the most dynamic, the most widely cited and by far the most used part of the constitution since then. Um However, the record of interpretation of the 14th Amendment is a bit checkered At one time. It was said that under the 14th Amendment, the states were very limited in what they could do with regard to legislation on things like wages and hours of work later on. However, it was said that was okay for the states to do whatever they like to do about those kind of legislation Under the 14th Amendment, it was said at one time that racial segregation was perfectly constitutional. But then later on, it was said that racial segregation was thoroughly unconstitutional under the 14th Amendment. At one time, it was said that under the 14th Amendment, the states could reapportion or a portion their legislatures pretty much as they wanted to, that there were no no uh constitutional bars against them doing whatever it is they wanted to do. But then it was later on said that state legislatures had to be apportioned according to the one person, one vote rule. I could go on, but I think you get the idea this amendment has been very central to constitutional interpretation in our time. Um it has been an important part of the Constitution for the past 150 years and yet it has an amazing instability of meaning. Um, so the amendment has been very important and yet at the same time, I would maintain not well understood. Now. My goal this afternoon is to try to make the meaning of the amendment clearer than it often is by sharing with you some of my research on the amendment and its prehistory. My main thesis, which is captured in the title of my talk, is that the meaning of the amendment falls into place when we see it as a completing of the constitution. Now, before I go any further, perhaps I ought to confess that I fear I am here under false pretenses. As Professor Pangle just mentioned to you, I am here to be to give a lecture as part of Constitution Day celebrations um which I don't think he mentioned actually. Constitution Day is the anniversary of the day that the people who drafted the constitution in the constitutional convention signed it. The september 17 17 87. They wrapped everything up and they all signed it. It's very parallel to the fourth of july when they signed the Declaration of Independence. And as Professor Pangle mentioned, every educational institution in America that receives federal funding is required by law to have an event of this sort. And that law was sponsored, have to say, by senator robert, Byrd of West Virginia. Uh and the idea was to celebrate what the title of one very well known essay in constitutional law called our Perfect Constitution. I think that's the idea that Senator Byrd had. Now I say that I am an admirer of the constitution, but I'm here to speak on completing the Constitution. That completion was accomplished. I'm maintaining many years after September 17, 1787. Now, if the Constitution required completing Some 80 years after it was originally written, Then it must not have been complete in 1787 and therefore it must have been in some important respects, imperfect. Therefore, I am here under false pretenses for I am not celebrating our perfect constitution as Senator Byrd wished us to do. Perhaps I should stop here and turn the podium back over to Professor panel. I got our money back. I haven't seen it yet. However, I have a plea to make in extenuation of uh in my own behalf. The judgment that the constitution of 1787 was incomplete enough imperfect is not in the first instance, my judgment, but rather was the judgment of none other than James Madison, the man who is usually called the father of the constitution. Now, just as the constitutional convention was completing its work near around the time. seven September 17, 1787 Madison wrote a letter to his best friend, who was thomas jefferson, who at that time was in paris, drinking fine wine and representing the United States at the court of the french king, Madison tried to catch jefferson up on all that had happened during the long hot summer that they had spent in philadelphia at the convention, and his assessment, actually, unlike Senator Birds, was fairly mixed. If I had to put a grade on what Madison thought of the new constitution, I would say it was somewhere at best, somewhere at best in the range of B minus or C plus. Although when you hear the story that I want to tell you, perhaps you'll agree that perhaps he would even have given it an F. Now, Madison admitted that the convention had accomplished far more than he ever expected it to do. But it has still fallen very short of what he hoped for and what he thought was needed. It was not good enough. He thought to meet the nation's needs, and he did not think it was likely to last very long. Such was his fairly harsh, albeit fatherly judgment on his child. Now, in order to make clear why, Madison thought the 17 87 constitution incomplete and therefore imperfect, I have to introduce one technical term. Their term is corrective Federalism, corrective Federalism. Medicine, thought the constitution of failure because it did not introduce or embody a system of corrective federalism. Now, we all know, I think we all know, I hope we all know that the 1787 Constitution did bring about a federal system. That is to say, a system that he has two levels of government. One level being the state governments, the other level being the federal government at each level has a government more or less independently constituted of the other levels. Um, That is neither level is dependent on the other for its construction, and both levels of government have direct relations with their own citizens. This federal system is kept off released, essential to it, with a division of powers between the two kinds of government. So, in the american federal system, the Constitution identifies a number of specific powers delegated to the federal government. For example, the power to regulate commerce among the states, or the power to declare war powers of that sort. All other powers are left to the states. Now, Madison thought that this federal system was pretty good, but it was insufficient. In addition, we need, he thought, corrective federalism. Now, in order to make clear what he meant by corrective federalism, I have to uh, take one step back with you, one more step back with you and bring out or try to bring out the chief problem that Madison saw needed to be solved in America in order for it to solve the constitutional and political problems that have faced in 1780s. Now, we all or most of us, I think again, know that the founders and Madison too, thought that the Union was too weak under the then existing constitution, the articles of confederation. And we know that the point of the founding, the point of writing a new constitution was to make the government of the Union stronger than it had been under the articles. Now, that thing that we all know happens to be mostly true, but it is not entirely true of Madison, he agreed that the Union was too weak, but he believed that the gravest problem facing America was actually not the weakness of the union, but misgovernment in the States. The States, he thought past unjust laws, they passed too many laws, they changed their laws too often. The greatest need, he thought, was to find a way to improve governance within the States. That is not so much a need at the level of the Union, but a need at the level of state governance within the States. In particular. He saw a need to try to protect rights of individuals within the states better than was being done. And this was important because most governance then at least was being done in the States and by the States. And Madison thought that that governance was being badly done now, prior to Madison, prior to Madison, the dominant view in America about how to get good, just successful republican or democratic government um was to keep government safely in check, mostly through empowering the people to control it. This was the central idea of americans before medicine started thinking about it. Now, the people who fought that way believed that bad governments really derived from small, irresponsible elites who managed somehow to control government. Their solution, therefore, was that we should have responsible, popularly checked government. And that that would solve the main problem of of just government. Now, for reasons that he explained in federalist paper number 10, which I'm assuming many of you have read somewhere or other Madison rejected this prevailing view. Um The simplest way to state his argument is to point to his observation that empowering the people as these other folks said we needed to do really means in practice empowering the majority because every society, he says, has divisions of various sorts. The people as the americans tended to talk about them and think about them, we're just an abstraction. There's no such thing as the people per se. Once Madison recognized that the effectual truth of empowering the people is actually empowering the majority, Madison realized that the people that is to say majorities can be just as oppressive and unjust as minorities or even as single rulers like kings from. So what can you do to control a potentially oppressive and tyrannous majorities? So, on the basis of this kind of analysis, Madison came to see the requirements of a right securing republicanism as being far more complex than his fellow american politicians at their time. As he said at one time, this is a mouthful, so listen carefully. The great disease or autumn in government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests infections, so as to control one part of the society from invading the rights of another and at the same time sufficiently controlled itself from setting up an interest adverse to the whole society. Now, you didn't get what that said, I can understand, and if you look at item a on the handout that you got, I tried to give a very shorthand and more succinct version of that than Madison's statement of it. What Madison sees though is that the political task faced by any republican system is both more complex than the prevailing theory, uh thought, and was also extremely difficult to achieve. Mhm. Because the two elements of his great disease or autumn here seem to point in opposite directions and I'll explain a little bit more about them here. On the one hand, Madison believes government must be neutral, vis a vis the different interests in society, that it must not be captured by one or another of the interest. And particularly, he was worried that in a republican system which operates according to majority rule, that it could readily be captured by majorities that were that were at least potentially oppressive. So government must be neutral. That is not captured by the interests in society and looked disinterested, lee at the various interests that are in society. Um That requirement of neutrality depends on a certain kind of distance or independence of the political authorities from those forces and factions existing within society. On the other hand, however, the government must remain dependent on and controlled by the society so that it does not impose a separate interest of its own on the society. So the two requirements independence, independence from society. Those two things that not easy to see how to do those Now, each of these requirements, medicine thought could be done could be met tolerably well. In a form of government that was well known to history, the kind of republic that his compatriots favored what I'd like to call a shortly republic. This could work, this could keep government from developing a separate interest and oppressing the entire society um by keeping the government on a short leash, by by preventing it from developing an interest separate from society or from pursuing such an interest. If it did develop that this part of the solution. However, this kind of short leash republic was pray or prone to the problem of the possibility of majority tyranny as they already mentioned hereditary monarchy. The other kind of solution that he saw could supply. This other requirement that is hereditary monarchy. Uh Prince in hereditary monarchy, not being dependent on the forces in society for his position or for the exercise of his powers is free to be neutral or disinterested vis a vis the interest in social political forces that exist within society. But as the prince is free to be, to disregard the particular claims of any faction. So the prince is free to disregard the interests of the whole society as well. So, according to Madison, neither the republic nor the monarchy solve the problem. They could each solve half the problem, but not the whole problem. But Madison saw a possibility of a solution in a combination of those two kinds of regimes. A limited monarchy like Britain's and he had Britain very much in mind here, limited monarchy like Britain's combines the two pure forms. Mm it has a hereditary king and then it has an elected republican legislature and Madison saw that this mixed government as they called it, that this mixed government could be the bit model for a new departure on the problem of rights securing in America. As Madison says in one place, this is another mouthful. So I'll try to explain it. But as a limited monarchy, he said, tempers the evils of an absolute one. So an extensive republic. Ameliorate the administration of a small republic. Now, Madison saw the solution in the combination of the large and small Republics in the United States. That is the combination of the federal government and the state governments interacting in a certain way. In the new kind of combination that he projected the large republic of the federal government was formed to supply the disinterest the neutrality and the distance from society characteristic of the monarchic element in the british limited monarchy, Madison argued, and this is straight out of federal is 10. That the majorities that can typically form in a large republic will be different from those that form in a small republic majorities in a large republic, he argued. And we can talk about this in the Q and A. If you want, because I'm not going to go into details here. Majorities in the large republic, he thought are more likely to serve the common good and to respect the rights of wall than majority is formed in a smaller republic. They the large majority, the large republic majorities are more likely to mimic the disinterest and the neutrality of the monarch in the mixed government bottle. Right. In the in that limited monarchy or mixed government model, the monarchic element exercises its role through the possession of a negative power on legislation. That is, the king is not given positive legislative power but is given a veto over the legislation over the legislature, the Republican legislature, Parliament, in the case of Britain possesses the positive legislative power and the balance between the institutions and the powers that they each possess, secure that combination of the two requirements that seems so difficult to achieve. And you might look at item B as just a shorthand statement of what the mixed or limited monarchy model is like now in the american federal system. And this is where medicine makes a big creative move in the american federal system, Madison envisaged the same combination of structures and powers. In this case, with the government of the extended republic, that is the federal government, in place of the prince possessing a negative power and the small Republics of the states possessing positive legislative powers. And you might look at an item c on the handout for a short statement of that. And just as the limited monarchy does not harm the prince with positive legislative powers, so the large, small republic combination of the new federalism does not harm the large republic with positive legislative powers within the states. What Madison wanted to do and here's the, for those of you who are not scholars of this period, what will probably surprise you? What Madison wanted to do was to grant Congress of the general government. Congress, as we know it, a power analogous to the kings. That is the power to veto all the laws made in the states. Okay, think about that. Congress would have the power every time a state and passed the law, it would have to send it up to Congress and Congress could veto it. That's medicines idea through the exercise of this veto power. The large republic, in concert with the small Republics of the states could achieve the two parts of that disease or autumn. That Madison uh talked about just as the limited monarchy could. Now this is the system I'm calling corrective federalism. It's a system of federalism because the two levels of government are to each have their own sets of powers and most of the ordinary business of government is to continue to go on within the states carried on by the states, by the state legislatures. It is a corrective federalism, however, because the general government would be armed with this negative, this veto power, which could be used to correct injustices and other sorts of bad legislation in the States. Now, in the face of much opposition, Madison adhered firmly to this idea of a congressional negative for because it provided a solution to the problem of rights protecting in a majority rule democracy without mixing in anything like a monarch in a word, Madison saw federalism as the solution to the problems of rights securing. That could not be solved in any other way. The Constitutional convention, as you've probably gathered from the fact that we don't have this power in our constitution. Constitution Convention did not follow medicines advice on this on this subject and it produced a constitution that was a mere shadow of his hopes. The constitution, Medicine thought therefore it was radically incomplete because it lacked the one thing that he thought could solve the most grave problem that republican or democratic governments face, that being the problem of majority tyranny. Well, so Madison failed to embody his version of corrective federalism in the constitution. But after the Civil War, the republicans who controlled Congress, faced with massive evidence of the failure of the original constitution. I mean, think about, if you want to say the constitution as a failure, the Civil War is like as big a failure as you could imagine for a constitution. Um, so they faced the idea they faced the wreck. They recognized that the constitution had failed, among other things, to protect rights in the states. And in thinking about the problem, The problem is that the Constitution had faced in the period between the founding and the Civil War. They rediscovered quite independently, I believe they rediscovered corrective federalism And they proceeded to plant a very robust version of it into the constitution as uh in these reconstruction amendments that I mentioned 13th 14th 15th amendments. Now the 14th amendment, which is the focus of my talk today is a text that's framed in large and grandiose but apparently ill defined in vague terms, witnessed that checkered history of the interpretation the 14th Amendment I mentioned earlier. Uh the terms of the amendment, as you might have noticed things like privileges and immunities. What are those um due process of law? What's that equal protection of the laws? What's that involved now? The history of the adoption of the amendment has been as confusing as the text confusing enough to spawn. Two different but very too plausible, I should say, but very different interpretations of what the founders were attempting to do in drafting this amendment. One group of scholars notes the very deep and undeniable concern that the drafters had for rights. And these scholars note the appreciation of the framers of the fact that traditional the traditional federal system had allowed the systematic violation of rights within the states. These scholars, therefore, conclude that the founders saw the framers of the amendments, I should say sought to provide for rights at the expense of federalism. That is that the amendments were meant to bring about a thorough going constitutional revolution overturning federalism in favor of a far more nationalist or even unitary constitutional system that would be friendlier to rights. There is another group of scholars, however, who noticed that the drafters of the amendments show no general hostility to federalism and indeed endorse it very strongly. The author of the 14th Amendment, for example, was so committed to federalism that he insisted on the floor of the of the Congress debating the bill, no right reserved by the constitution to the states should be impaired. This is not what one would expect from somebody sponsoring a constitutional revolution to overturn federalism. This group of scholars, therefore, concludes that the Reconstruction amendments were, on the whole pretty conservative, reaffirming traditional federalism and supplying additional protection to rights only within the boundaries defined by their commitment to traditional federalism. Now, both theories of the amendment and amendments and their adoption are plausible, but I believe that the theory of corrective federalism makes better sense of all the facts than either theory, either of the other theories does. Mhm. Um The facts being on the one side, the commitment to a healthy federalism and on the other side, a commitment to a substantially expanded rights protection against the states. Now, the drafters of the Reconstruction amendments recaptured Madison's idea of a corrective federalism only at a general or conceptual level, and not at the level of specifics, because their version of corrective federalism was quite different from medicines in detail. Madison's solution was political in that he attempted to uh institute a process that would produce better majorities. That is the political process that would work in such a way as to produce the kinds of outcomes that he thought were desirable. The framers of the post war amendments for the most part opted however, for a more directly constitutional and legal situation, a solution wherein they identify the rights to be protected as well as appropriate legal limits and empowerment, um which are then specified directly in the constitutional text. So, according to corrective federalism, the states are to continue to act in all the areas in which they acted within the traditional federal system, but they must not intrude on the set of rights defined in the amendments. That's the that's different. So appreciating that the amendments were meant to institute a version of corrective federalism, I think, helps us understand that neither the radical that is those people felt very revolutionary nor the conservative view describes well what was accomplished in the post war amendments. They worked an important change in the constitutional system. No question about that, But it was a change in the direction of finishing what the founders started but did not complete. And this is in fact the way the chief actors in the creation of the new amendments understood themselves to be acting. Let me quote you, a passage from Fat ius stevens, who was one of the leaders of the Radical report, the Pretty radical Republicans In 18 this is in 1866, he says, sir, this was on the floor of the House Representatives, Sir, our fathers made the Declaration of Independence and that is what they intended to be the foundation of our government. If they had been able to base their constitution on the principles of that declaration, it would have needed no amendment during all time for every human being would have had his rights. Every human being would be equal before the law. So, according to stevens, the original founding document of the american constitutional order is the Declaration of Independence. And to ground a government on the declaration means he thought that each man would have his rights. That is to say, the failure of the original constitution was that it did not guarantee as a matter of constitutional right. The natural rights affirmed in the Declaration of Independence and amendments he thought were required precisely to remedy this lack. Now, stevens goes on and it's quite explicit in his analysis of why the original Constitution failed to do this. But it so happened, this is Stephen skin, but it so happened that when our fathers came to reduce the principles on which they founded this government into order in shaping the Organic law, an institution from hell appeared among them. It obstructed all their movements, and all their actions. It and precluded them from carrying out their own principles into the Organic law of this Union. Of course, I don't suppose I need to tell you that the institution from hell that he has in mind is slavery, but it was not merely the existence of slavery within the american union. That was the problem. It was the failure to generally secure the rights affirmed in the declaration into the constitution. That was the problem, that is, to say, the mere undoing of slavery is not a sufficient embodiment of the principles of the Declaration. According to stevens, John Bingham, the man who drafted the 14th amendment made much the same point. I am perfectly confident, he said that the provisions of the proposed amendment, this is when they're debating the 14th amendment would have been in the original constitution, but for the fact their insertion would have been utterly incompatible with the existence of slavery. All right now, what I'd like to do is to try to explain to you how the amendments did what being them and Stephen said they should do and in a way, didn't want and at the same time, show you how the amendments relate to the theory of corrective federalism. Now, before the 14th Amendment was the 13th amendment. And if you look at your hand out, item e gives the text of the 13th amendment, it's short and to the point. Um and as you see, prohibits slavery in the US and thus removes the chief source of the lack of adequate rights protecting in the states. But it soon became clear shortly after the adoption of the 13th amendment that freeing the slaves was not enough. Shortly after the amendment went into effect, the southern states enacted very restrictive black coats. What we call black coats. These so called black codes were laws that set special limitations and burdens on the newly freed slaves, forbidding them, for example, to live in town are requiring them to have a white person as a sponsor many other restrictions as well. But now Congress attempted to negate these codes In the Civil Rights Act of 1866. A very important law passed in that year. That act was ostensibly passed under the authority of the 13th Amendment, and in many ways that law operated like Madison's negative would have operated. That is, to say, the states passed laws and Congress, in effect, declared them null and void. Nonetheless, much reasonable uncertainty persisted over whether the Civil rights Act was constitutional, Whether the Civil Rights Act was valid under the 13th Amendment Because the amendment, the 13th Amendment is the text of it shows prohibited slavery and involuntary servitude, but it did not seem that the practice is mandated in these black codes, bad as they were amounted to slavery. So it was not clear that the 13th amendment could authorize this corrective federal measure, the Civil Rights Act. So the 14th Amendment came on the scene. It was largely the work, as I said, of john Bingham, who was a congressman from Ohio, The 14th Amendment attempted to do more adequately what the 13th had attempted to do. That is to reorder the original constitutional ordering regarding rights and federalism. Um, I think we can best this is where things get a little textual, so pay attention. Um, I think we can best discern the 14th Amendment effort to complete the constitution by comparing the rough draft of the amendment uh to the final text as adopted. And i on the handout item f is the rough draft and you might follow along. I'll just read the text. The Congress shall have the power to make all laws necessary and proper to secure the citizens of each state. All the privileges and immunities of citizens in the several states and to all persons in the several states equal protection in the rights of life, liberty and property. Now, the most striking difference, I think you'll agree between this draft and the final version of the amendment lies in the fact that in the final version, the final version is cast in terms of prohibitions against the states. Whereas this draft contains empowerment of Congress. Congress has the power to do certain things, but for the moment, I want to focus attention on another important difference. Not that one. The final version, as you notice, if you look at that, what number was that on there? D Okay, if you look at D you'll see that it contains three sets of protections. The final version, it protects privileges and immunities. It requires due process of law and it requires equal protection. The draft, on the other hand, Contains two sets of protections, privileges and immunities. And then this clause equal protection in the rights of life, Liberty and property. Now, the second of these two clauses, the equal protection in the rights of, et cetera, provides protection for the very familiar triad of rights. Life, Liberty and property. The very try out of rights that were historically and regularly identified as natural as the natural, non natural rights. The second clause of the draft then would appear to grant Congress the power to see to it that all persons receive protection of their natural rights. Okay, that's a big thing. Congress has given the power to see to it that all persons get protection of their natural rights. This, I believe is a helpful insight because it sheds light on what otherwise might appear to be the opaque language in the final text of the amendment. So in the final version, the language of this one clause has been split into two clauses. Nor shall any state deprive any person of life, Liberty, or property without due process of law. That's one and second. Nor deny to any person within its jurisdiction the equal protection of the loss. Now, judging by the language and the punctuation of these clauses, the due process and the equal protection clauses of the Final Amendment are direct descendants from the equal protection clause of the earlier drafts. That following me so far. Okay, good, Lauren, you're fine. That's good. Everybody else back there. Okay, so far. Okay, good. The principal responsible for the bifurcation of that. What had been one clause into two clauses I think is easy to discern if we think about it. The earlier version, the rough draft empowered Congress to see to the provision of equal protection of the natural rights. But the final version instead makes this into a prohibition against the state's failing to secure persons in their natural rights. Now, there are only two ways in which states can fail to secure natural rights. If you look at item G I've listed what those might be first, A state might itself threatened rights by depriving persons of those objects to which they have rights, their lives, their liberties, and their properties. Now, since it is the business of States to apply coercion against persons who violate legitimate laws, and therefore sometimes they deprive them of life. Liberty and or property. States threatened rights not when they deprive persons of those things across the board, but only when they deprive persons of those rights or objects of rights outside the law. That is without due process of law, that is without a proper legal authorization and without proper legal process. The Due process clause provides a part of the protection to natural rights originally contemplated in the second clause of the earlier draft. That is protection against unwarranted deprivation of rights by the state itself. But states are not the only agents capable of depriving persons of natural rights. According to natural rights philosophy. In fact, the primary threats to rights arise from individuals or groups, other individuals or groups, private parties. If the state fails to supply protection for rights or supply, some persons quite inferior protection, it is failing in its primary duty of rights protection. That's why states come to exist to protect rights. Thus, the equal protection clause of the Final Amendment forbids states from denying rights by failing to provide protection, Tracing the modification of the text through the two drafts of the 14th Amendment, then leads to the conclusion that the two clauses, the due process and equal protection clauses are devoted to protection of natural rights of persons against the States. Prior to the 13th and the 14th amendments, these rights had no constitutional status, vis a vis the states the original Constitution took for granted that the States would have custody, so to speak, or the responsibility of protecting rights. Uh But with very few exceptions, the Constitution placed no restrictions nor any duties on the States in their dealing with these rights. The 14th amendment therefore works a very major shift in the constitutional system. Under its terms, all persons within the United States now have a federal constitutional right to their natural rights, a right to protection by and from the States. The 14th Amendment does not transfer custody of these rights to the general federal government, but it does give the federal government a corrective power over the states and they're dealing with them. Now. In addition to this clause about natural rights, the early draft had a clause empowering Congress to see to the protection of privileges and immunities. And this language is mostly carried directly into the final version of the amendment. If you look at item H, but its recast into the form of a prohibition against the States, as was the other, the other clothes. Now, the most significant difference that we're going to focus on today anyway, is this the privileges and immunities clause of the amendment in either draft must protect some set of rights different from the natural rights protected by the due process and equal protection clauses. Otherwise there'd be no point in being there. The very language of the clause suggests a significant difference because natural rights, our claims that are due to all persons by virtue of their humanity and therefore imply simple universality, privileges and immunities however, suggests something less than universality. A privilege is not shared by everybody does. It wouldn't be a privilege of everybody hit it. And an immunity likewise assumes a background of not being immune from what it is. You have an immunity. So, accordingly, the text of the amendment identifies privileges and immunities as belonging to citizens and rights has belonging to all persons and things clear the category, all persons much broader than the category. Citizens, privileges and immunities belong to citizens and thus depend for their existence on positive law and on the existence of government. Not true for natural rights, privileges immunities are thus, we might say civil rights, not natural rights, since their content depends on the particular political community which grants them. There can be no idea that there's some kind of universal table of rights uh that would be uh sorry, table of privileges, immunities that would be universally available everywhere. The privileges immunities held by people depend upon the actual civil society in which about which were speaking. No, The 14th Amendment singles out the privileges immunities of citizens of the United States and prohibit states from leveraging those. The text I think is clear about that now in the american federal system, individuals are citizens of both the government of the United States and of the state that they live in, or that they are citizens of Being citizens of two different political entities. Individuals possess two sets of privileges and immunities. The amendment protects only those attached to citizenship of the United States. These privileges immunities must either be defined in the Constitution of the United States or be implicit somehow in the existence of a government like like ours. The Constitution does indeed identify in several places, but most prominently in the Bill of Rights. Some special rights that belong to citizens of the United States. Analysis of the text of the draft of the amendment thus leads to the conclusion that the privileges and immunities clause means to protect at least those rights identified in the Bill of rights against abridgement by the States, Prior to the 14th Amendment. Those of you who've studied constitutional law. No, this well, I'm sure Prior to the 14th Amendment, the privileges immunities of us citizens, as so understood, were not protected against abridgement by the states. The states were free to a bridge the Bill of rights protections if they liked. The 14th Amendment would change that situation. The corrective federalist conception behind the Reconstruction amendments also provided mechanisms by which the agents of the general government could act to correct uh actions by the state's violative of the rights protected in the amendment. Since the limitations were placed into the Constitution as explicit legal provisions, the Supreme Court is to enforce these limitations as it does other such constitutional provisions. In addition to the court's role, however, Congress also has the power to act as corrector under section five of the 14th Amendment. Item K Again, in the first instance, Congress has power to enforce the amendment that is to correct state violations of the rights protected under the amendments, And the Civil Rights Act of 1866 was a very good model of the kind of corrective action anticipated under the amendments, because in it, penalties are set against state officials who under colour of laws. The phrase they use engage in the kind of right violations prohibited by the amendments. But congressional power under the 14th Amendment goes beyond this power to act or act on or correct the states and their officials. However, among other things, the states are prohibited from denying equal protection of the laws. A state violation of this prohibition typically takes the form of a certain kind of inaction or a certain kind of failure a failure to supply protection for the rights under the logic of the amendment, which is once again consistent with the logic of corrective federalism. Congress has the power to step in and supply the required protection if the states show a pattern of failure in supplying the protection themselves. In fact, in the Q&A. We might talk about this because Congress, in fact, in 1871 passed a law exactly like that. Um thus under its power to enforce the equal protection clause, Congress would have power under certain circumstances to supply direct protection to individuals in their rights, not only against action by states and state officials, but against private individuals as well. Now, such action by Congress would move to the very edge of what corrective federalism would allow, but it nonetheless would remain within corrective federalism because of the requirement that Congress is justified in doing so, only if the states have shown a pattern of failure that a state failure is the premise for congressional legislation in these cases. Okay, I can just now conclude Briefly summarizing what scene might seem like a complex and confusing 14th amendment by reducing it to three chief doctrines, which I've written down as the last item on the handout. Mhm. Uh First Amendment establishes a new constitutional right to the protection of one's natural rights through the due process and equal protection clauses, or perhaps better put, given the form of the amendment. The amendment establishes a new constitutional duty in the states to secure the pre existing natural rights of persons within their jurisdictions and a power in the federal government to enforce this duty. Second, the amendment incorporates the bill of Rights through the privileges and immunities clause that, as it requires the states to respect the limitations on powers that are expressed in the bill of Rights. And then 3rd, and finally, the amendment establishes what I'm calling the state failure doctrine of congressional power. Congress may act to remedy the failure of states to do their duty to supply protection of the laws, the indian extreme cases supply protection of rights against the action of individuals and not only against the actions of states themselves. Now, this whole enterprise amounts to a completing of the constitution are the removal of several severe imperfections that were present in the original constitution. The post war amendments, therefore, finish the work that Madison began when he produced his rough draft for the Constitution In well, which was finally signed on September 17, 1787. Thank you. Yeah, Yeah