Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at
July 2019
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  • Substantive Equal Protection

    The Thirteenth Amendment ended slavery, but that amendment said nothing of the civil, political, and social status of newly freed slaves.  Attempting to address this deficiency and establish and protect several key citizenship rights, the 39th Reconstruction Congress passed the Civil Rights Act of 1866 (CRA).  Section One of the CRA provided:

    That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary not withstanding.[1]

    By protecting these citizenship rights, Congress attempted to reverse the legal disabilities of slavery.  In addition to the enumerated citizenship rights, the CRA also protected equal burdens and benefits of the law.

    Congress passed the CRA under the authority of the Thirteenth Amendment.  Many felt that the CRA was beyond that amendment’s enforcement power as it went much farther than enforcing the end of slavery.  The CRA was vetoed, but Congress overrode the veto.  During the debates over the CRA, Congress contemplated an additional reconstruction amendment, which would eventually become the Fourteenth Amendment.  The proposed language ultimately becoming Section One of the Fourteenth Amendment provided constitutional authority for the CRA and for future enforcement legislation.

    Like the divisions between North and South, the Reconstruction Congress held many views on civil, political, and social rights.  Some members wanted plenary congressional powers for civil rights.  Others wanted more limited congressional involvement while maintaining protection for states’ rights.

    In the passage of the Fourteenth Amendment, Congress rejected open-ended language in favor of language with a more limited reach.  Congress wanted to protect civil rights but did not want to interfere with the states’ police powers over social and political institutions.

    Moderates and conservatives rejected earlier versions of the amendment because the drafts authorized blanket bans on matters they felt should be left up to the states.  Language securing, for example, “equal protection to the pursuit of happiness” fits well with the general natural law concepts advanced by a few radical Republicans but would not have been accepted in a provision that many worried would erode all state legislation.  Proposed language extending protection to “equal political rights and privileges” and “equal protection in life, liberty and property” were abandoned.  The final draft protected equal protection of the law.  Under the final draft, Congress had remedial powers and states would remain regulators of life, liberty, and property.

    As we see from the debates and the revisions, the Equal Protection Clause and the Fourteenth Amendment were never meant to be an all-things-equal concept.[2]  The Equal Protection Clause came about to reinforce congressional efforts to stop unequal enforcement of the law.  We know from the legislative background that certain localities were not enforcing crimes evenly, omitting to punish some and punishing others differently solely on account of race.  Under the CRA, a black person could not be punished differently than a white person for the same crime.  The CRA required equal burdens and benefits of the law.  Representative Shellabarger of the 39th Congress recited Section One of the Fourteenth Amendment as securing to all citizens “equality of protection in those enumerated civil rights.”[3]  The main thrust of “protection” in civil rights legislation was to cure the uneven administration of the law by requiring equal application of laws.  Rep. Stevens:

    [T]he law which operates upon one man shall apply equally upon all.  Whatever law punishes a white man for a crime shall punish the black man in precisely the same way and to the same degree.  Whatever law protects the white man shall afford “equal” protection to the black man.[4]

    Equal protection of the law as provided in the CRA was not generally a substantive reach into the merits of the law but rather an equal administration of the law as enacted.  Section One gave the CRA a constitutional status.

    The 39th Congress did not intend for the CRA, the Equal Protection Clause, or the Due Process Clause to cover, for example, interracial marriage, married women’s property rights, voting for women or black males, jury service, or school desegregation.  These were not considered to be civil rights.  We know this from the debates and the context of Reconstruction legislation.

    In fact, there was no indication in the 39th Congress that the judiciary would be executing Section One outside of congressional enforcement legislation.  Reconstruction was a struggle between Congress and abusive state and local government.  Section Five authorizes Congress to enforce the provisions of the amendment.

    So what happened?  The courts got ahold of the amendment and rewrote the amendment along preferred social outcomes, surprisingly similar to the versions rejected by Congress.  Substantive equal protection case law grew on the heels of substantive due process case law in the non-majority opinions of the 1870s.  This post [coming soon] briefly discusses the substantive due process cases after the amendment’s ratification.  For more detail, see footnote 2.  Eventually, the non-majority opinions giving great breadth to the amendment captured the majority in a series of cases involving Chinese immigrants and California wash houses.[5]

    During the late nineteenth century, the Chinese monopolized the laundry industry on the West Coast.  Many Chinese worked long hours for low pay in wash houses.  Wash houses were often located in cheaply constructed buildings to increase profit.  As Chinese migration increased, laundering operations conflicted with local ordinances, and laundry gilds often brought suit to challenge laws they deemed discriminatory.  Many of these regulations involved health and safety standards enacted to restrict the location of wash houses, prescribe regulations against working certain hours of the night, and require compliance with building safety codes to reduce the risk of fire.

    By the 1880s, Justice Stephen J. Field had lived in California and served in both the California legislature and on the California Supreme Court.  Field had a significant presence in both lower court opinions and later Supreme Court opinions involving the Chinese.  In a lower court opinion, Field, riding circuit, heard a case concerning the 1876 Queue Ordinance, which involved the cutting of hair of any male serving time in jail.[6]  The regulation provided that: “[E]very male person imprisoned in the county jail . . . shall immediately upon his arrival at the jail have the hair of his head ‘cut or clipped to [a] uniform length of one inch from the scalp thereof.’”  Field held that the ordinance was aimed directly at the Chinese and served no measure for discipline or regulation of prisoners.  According to Field, the ordinance was a violation of the Fourteenth Amendment and exceeded the power of the Board of Supervisors.

    Field’s application of the amendment to the facts at hand was quite expansive and in line with his earlier monopoly and economic non-majority interpretations.  Field implied motives to those enacting a general law affecting male prisoners and then deemed the law to be beyond the police power of the state.  Field’s review of the reasonableness of the ordinance gave no deference to the judgment of the Board of Supervisors in passing the regulation.

    The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation.  The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases.  Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction.[7]

    Field refused to accept the Board’s contention that the regulation was for the general health of the City.  He dismissed the fact that the legislation was a general application to all males and deemed the legislation “class legislation” because of its effect on the Chinese queue.

    When the law imposes a punishment which only a certain class of persons, because of peculiar but innocent habits, sentiments or beliefs, can feel, and imposes it for the avowed purposes of affecting this class as others are not affected, it seems plain that not only is the equal protection of the laws denied to the class, but that they are directly and purposely subjected to pains and penalties which others of different habits, sentiments or beliefs are never expected to feel.[8]

    This serves as an example of Field’s arbitrary reasonableness review of the ordinance.  With applications to hair cutting, the self-executing Fourteenth Amendment could be molded to cover any activity.  Field’s finding of unequal burdens and selective administration of a law might carry water if he had isolated a case where other non-Chinese males in the prison did not have their hair “immediately upon [their] arrival at the jail . . . ‘cut or clipped to [a] uniform length of one inch from the scalp thereof.’”[9]

    As noted above, the ordinance was challenged under the Fourteenth Amendment.  The ordinance does not seem to be within the scope of the CRA, which was aimed at reversing the legal disabilities of slavery.   Given the character of Field’s dissents in earlier cases, Field would certainly argue that the amendment was much broader than the CRA.

    The Chinese were in the courts on multiple occasions involving multiple issues.  The ordinances specifically conflicting with laundry operations reached the United States Supreme Court several times.  During the early 1880s, several justices left the Court and this allowed Justice Field to have a strong influence on the Court, which was likely able to shift the majority of the Court from its earlier holdings. [10]

    In Barbier v. Connolly,[11] the non-majority abstractions of Justice Field and fellow justices over the last ten years captured the majority.  In this case, the plaintiff was convicted of operating a wash house during the prohibited hours of ten o’clock in the evening and six o’clock in the morning.  The trial court sentenced the plaintiff to five days in jail.  The plaintiff moved for a discharge on the grounds that the ordinance violated the Fourteenth Amendment because it discriminated between a class of laborers engaged in laundry businesses and those engaged in other businesses and because it denied the right to labor and the right to acquire property.  The court denied relief.

    From the denial, the plaintiff sought review by the Supreme Court.  In form, the Court left the local ordinance intact on the ground that it was proper for the City to regulate to reduce the risk of fire.  In doing so, Justice Field undermined the limited amendment:

    The Fourteenth Amendment . . . undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property  . . . and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances.[12]

    The re-characterization of the amendment in Barbier greatly expanded its scope.  “[N]o arbitrary deprivation of life or liberty” . . . “arbitrary spoliation of property” . . . “equal protection and security . . . to all under like circumstances” . . . where did this language come from?  This certainly was not representative of the 39th Congress’s amendment.  In fact, it’s the exact opposite of the intended limitations.  The 39th Congress recognized that this king of language would be too broad and would destroy federal-state relations.  It was rejected.  These kinds of opinions are the result of judges “interpreting” open-ended constitutional provisions.  If the Court were interpreting a statute, even an ambiguous one, subject to the supervision of Congress, lofty interpretations such as Field’s would be less obnoxious.

    The significance of Barbier is overlooked as the Court allowed the ordinance to stand and held that there was no “class discrimination.”  But the Court set the stage for an opposite result by including the substantive due process and substantive equal protection language into the majority opinion as the new “meaning” of the amendment.  Thus, in Barbier, Field’s broad, open-ended language describing the Fourteenth Amendment, often articulated in earlier non-majority opinions, was now the majority’s interpretation of the amendment.  “In Barbier—without citing a single source in the entire opinion—Field recklessly ignored the limited Fourteenth Amendment, moving instead toward a broader inchoate interpretation of the amendment, one which gave the judge complete and arbitrary domination over state and local legislation.”[13]

    Following the Court’s expansive interpretations of substantive due process and substantive equal protection, the entire body of state police power legislation became subject to the Court’s judicial review.  Through the Court’s now established “reasonableness” filter, the broad description of the states’ general police powers contemplated in the Constitution and preserved in the amendment, lost its footing and state legislation became enumerated under the Court’s unwritten substantive due process and equal protection jurisprudence.[14]

    With each new grasp, the Court’s distortion of the intent, text, and the context of the amendment were extended: “equal protection in the pursuit of happiness,” “class legislation,” “liberty as more than mere animal existence.”  Eventually, the Fourteenth Amendment, hijacked by the Judiciary, would have none of the intended protections for states’ rights.[15]  Prior to Barbier, this language was found in dissenting and non-majority opinions.  After Barbier, it became the understanding of the Fourteenth Amendment.

    Justice Field applied the substantive interpretations conceived in Barbier to his opinion in Soon Hing v. Crowley.[16]  In Soon Hing, like Barbier, the issue of “class legislation”[17] was over the prohibition of cleaning laundry in areas of the City during certain hours.  The first claim by the plaintiff involved an attempt to bring a suit because certain laundry work was affected but other types of work were not subject to the restrictions.  The second claim was an attempt to find relief because the regulation prevented all men from the ability of working any hours they so chose.  The Court rejected both claims.

    Once again, while the actual outcome of the case was in favor of the City and the ordinance, the Court’s interpretation of the amendment was not representative of Congress’s intentions.  In Field’s characterization of the amendment as incorporating a “class legislation” prohibition, he cited no precedent other than Barbier and failed to discuss or distinguish any other Court holdings on the limited Fourteenth Amendment.

    Following the same trend found in Barbier and Soon Hing, the Court in Yick Wo v. Hopkins again took up a case involving Chinese launderers.[18]   In this case, a general ordinance affecting old wooden laundry houses, deemed a fire risk by the City’s Supervisors, was held invalid for discriminating against Chinese launderers.  In Yick Wo, the Court incorporated the foothold language of Barbier and Soon Hing, not only to reinforce the mischaracterization of the amendment but also to invalidate the ordinance.  The Yick Wo Court synthesized earlier minority opinions as barring arbitrary deprivation of life or liberty and securing equal protection in the enjoyment of the pursuit of happiness.  The Court also solidified the “class legislation” concept as a majority by holding that no impediments should apply to one which do not apply to another in the same condition, and class legislation which favors some but not all in similar situations is prohibited.  The Court quoted Field’s broad, open-ended constructions of the Fourteenth Amendment as stated in Barbier:

    [The Fourteenth Amendment] undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness, and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property . . . .[19]

    The Yick Wo language reflected the exact kind of language rejected by the Reconstruction Congress in drafting the Equal Protection Clause.  The Court stated: “[The Fourteenth Amendment] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”[20]  In drafting the amendment, Congress and the Committee rejected similar “protection of equal laws” language for its broad implication that the amendment authorized Congress to attempt to establish “equal political rights and privileges” throughout the states.  The Court’s substitution of “protection of equal law” for “equal protection of the law” has been sharply criticized.  “By the same token, a pair of alligators is an alligator pear; or, to quote Abraham Lincoln, it is ‘but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse.’”[21]

    In these laundry cases, the breadth of the Court’s interpretations of the amendment does little justice to the federalism considerations of the 39th Congress.  Barbier does not cite any sources, Soon Hing cites only Barbier, and Yick Wo only cites Barbier and Soon Hing for the substance of the Court’s classification holding.   Yet, these cases, due to their intoxicating appeal in allowing the Court to exercise reasonableness review of state legislation, are cited exhaustively for Fourteenth Amendment judicial activism.

    With these three Supreme Court cases, the broad, open-ended non-majority constructions captured the majority in what can be fairly characterized as redefining the amendment to be an arbitrary constitutional grab bag, with no definition and no bounds other than ephemeral judicial self-restraint.[22]  It is this interpretation that serves as precedent for the “meaning” of the Fourteenth Amendment and not the earlier opinions of the Court or the limitations contemplated in the congressional debates.


    [3] Cong. Globe, 39th Cong., 1st Sess. 1293 (1866) (statement of Rep. Shellabarger).

    [4] Cong. Globe, 39th Cong., 1st Sess. 2459 (statement of Rep. Stevens).

    [6] Ho Ah Kow v. Nunan, 12 F. Cas. 252, 253 (D. Cal. 1879) (No. 6546).

    [7] Id.

    [8] Id. at 257.

    [9] Id. at 253.

    [10] Four new justices entered the Court in the years between 1880 and 1882.

    [11] 113 U.S. 27 (1885).

    [12] Id. at 31.

    [16] Soon Hing v. Crowley, 113 U.S. 703, 708 (1885) (Field, J.).

    [17] Id. at 708 (“No invidious discrimination is made against any one by the measures adopted.  All persons engaged in the same business within the prescribed limits are treated alike and subjected to similar restrictions.”).

    [18] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

    [19] Id. at 367 (quoting Barbier v. Connolly, 113 U.S. 27, 31 (1885).

    [20] Id. at 369 (emphasis added).

    [21] Alfred Avins, The Equal “Protection” of the Laws:  The Original Understanding, 12 N.Y.L.F. 385, 386 (1966).

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