Belonging, protection and equality: The neglected citizenship clause and the limits of federalism

University of Pittsburgh Law Review

Volumn 62, Issue 2, 2000, Pages 281-334

  Zietlow, Rebecca E ^a  

^a NONE

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EID: 0034562713     PISSN: 00419915     EISSN: None     Source Type: Journal    
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References (399)

1. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 665 (1999) (Stevens, J., dissenting).
2. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 842 (1995) (Kennedy, J., concurring).
3. CONG. GLOBE, 39th Cong., 1st Sess. 1757 (1866) (statement of Sen. Trumbull) (emphasis added) (speaking during a Congressional debate over the ratification of the Fourteenth Amendment).
4. See, e.g., United States v. Morrison, 120 S. Ct. 1740 (2000) (holding that Congress lacked Commerce Clause power to enact a federal civil rights remedy for victims of domestic violence); Alden v. Maine, 527 U.S. 706 (1999) (finding that Congress could not act pursuant to its commerce clause powers to authorize suits against states in state courts because to do so violates states' sovereign immunity); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (holding that the federal Trademark Remedy Clarification Act did not validly abrogate Eleventh Amendment immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (holding invalid the federal Patent and Plant Variety Protection Remedy Clarification Act's abrogation of states' Eleventh Amendment immunity); Printz v. United States, 521 U.S. 898 (1997) (striking down portions of the Brady Handgun Control bill, that required state sheriffs to participate in creating a national tracking system, as unconstitutional commandeering of state officials by Congress); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (finding that Congress could not act pursuant to the Indian Commerce Clause to abrogate states' sovereign immunity); United States v. Lopez, 514 U.S. 549 (1995) (reading narrowly Congress' power to regulate intrastate matters pursuant to the Commerce Clause).
5. United States v. Morrison, 120 S. Ct. 1740 (2000).
6. See, e.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 665 (1999) (Stevens, J., dissenting) ("The full reach of [Seminole Tribe's] dramatic expansion of the judge-made doctrine of sovereign immunity is unpredictable; its dimensions are defined only by the present majority's perception of constitutional penumbras rather than constitutional text."); Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1012 (2000) ("In ways that the Court fails to acknowledge, its effort fails to promote any coherent conception of states' rights or state autonomy while harming legitimate national objectives."); Ana Maria Merico-Stephens, Of Maine's Sovereignty, Alden's Federalism, and the Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.C. DAVIS L. REV. 325, 327 (2000) (describing the recent Supreme Court's federalism as a "mystical world" and "an abstruse and bewildering labyrinth of categorical principles discernible only to five spellbound members of our current Supreme Court"); Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78, 102 (1995) ("We are in the midst of an antifederalist [sic] revival of uncertain scope and consequence.").
7. See, e.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 665 (1999) (Stevens, J., dissenting) ("The full reach of [Seminole Tribe's] dramatic expansion of the judge- made doctrine of sovereign immunity is unpredictable; its dimensions are defined only by the present majority's perception of constitutional penumbras rather than constitutional text."); Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1012 (2000) ("In ways that the Court fails to acknowledge, its effort fails to promote any coherent conception of states' rights or state autonomy while harming legitimate national objectives."); Ana Maria Merico-Stephens, Of Maine's Sovereignty, Alden's Federalism, and the Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.C. DAVIS L. REV. 325, 327 (2000) (describing the recent Supreme Court's federalism as a "mystical world" and "an abstruse and bewildering labyrinth of categorical principles discernible only to five spellbound members of our current Supreme Court"); Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78, 102 (1995) ("We are in the midst of an antifederalist [sic] revival of uncertain scope and consequence.").
8. See, e.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 665 (1999) (Stevens, J., dissenting) ("The full reach of [Seminole Tribe's] dramatic expansion of the judge- made doctrine of sovereign immunity is unpredictable; its dimensions are defined only by the present majority's perception of constitutional penumbras rather than constitutional text."); Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1012 (2000) ("In ways that the Court fails to acknowledge, its effort fails to promote any coherent conception of states' rights or state autonomy while harming legitimate national objectives."); Ana Maria Merico-Stephens, Of Maine's Sovereignty, Alden's Federalism, and the Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.C. DAVIS L. REV. 325, 327 (2000) (describing the recent Supreme Court's federalism as a "mystical world" and "an abstruse and bewildering labyrinth of categorical principles discernible only to five spellbound members of our current Supreme Court"); Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78, 102 (1995) ("We are in the midst of an antifederalist [sic] revival of uncertain scope and consequence.").
9. 526 U.S. 489 (1999) (striking down a state law that limited welfare benefits for newly arrived residents as violating the Privileges or Immunities Clause of the Fourteenth Amendment).
10. 514 U.S. 779 (1995) (striking down a state law that set limits on the number of times that an incumbent candidate for Congress could appear on the ballot).
11. See Morrison, 120 S. Ct. at 1749-59.
12. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Meltzer, supra note 6, at 1012-15; John E. Nowak, The Gang of Five and the Second Coming of an Anti-Reconstructionist Supreme Court, 75 NOTRE DAME L. REV. 1091 (2000); Laurence H. Tribe, Saenz sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-Or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 155 (1999).
13. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Meltzer, supra note 6, at 1012-15; John E. Nowak, The Gang of Five and the Second Coming of an Anti-Reconstructionist Supreme Court, 75 NOTRE DAME L. REV. 1091 (2000); Laurence H. Tribe, Saenz sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-Or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 155 (1999).
14. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Meltzer, supra note 6, at 1012-15; John E. Nowak, The Gang of Five and the Second Coming of an Anti-Reconstructionist Supreme Court, 75 NOTRE DAME L. REV. 1091 (2000); Laurence H. Tribe, Saenz sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-Or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 155 (1999).
15. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Meltzer, supra note 6, at 1012-15; John E. Nowak, The Gang of Five and the Second Coming of an Anti-Reconstructionist Supreme Court, 75 NOTRE DAME L. REV. 1091 (2000); Laurence H. Tribe, Saenz sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-Or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 155 (1999).
16. See discussion infra Part III.A.
17. Saenz v. Roe, 526 U.S. 489 (1999).
18. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
19. Id.
20. See Saenz, 526 U.S. at 502-07.
21. Mark Tushnet, The Supreme Court 1998 Term Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29, 30 (1999) ("I suggest here that a new constitutional order is indeed in place."). Tushnet argues that this order is characterized by a smaller federal government in general, and suggests that the other political branches, the presidency and Congress, have contributed to fashioning that order. While Tushnet is undoubtedly correct in many instances, this section focuses on situations where Congress wishes to act but is thwarted by the Court in its role of enforcing that order. But see Daniel A. Farber, Pledging a New Allegiance: An Essay on Sovereignty and the New Federalism, 75 NOTRE DAME L. REV. 1133, 1135 (2000) (maintaining that the Court's concern about states' rights is "part of a more complex worldview" that "also attaches importance to maintaining the current balance of power between state and federal government, as well as protecting individual constitutional rights").
22. Mark Tushnet, The Supreme Court 1998 Term Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29, 30 (1999) ("I suggest here that a new constitutional order is indeed in place."). Tushnet argues that this order is characterized by a smaller federal government in general, and suggests that the other political branches, the presidency and Congress, have contributed to fashioning that order. While Tushnet is undoubtedly correct in many instances, this section focuses on situations where Congress wishes to act but is thwarted by the Court in its role of enforcing that order. But see Daniel A. Farber, Pledging a New Allegiance: An Essay on Sovereignty and the New Federalism, 75 NOTRE DAME L. REV. 1133, 1135 (2000) (maintaining that the Court's concern about states' rights is "part of a more complex worldview" that "also attaches importance to maintaining the current balance of power between state and federal government, as well as protecting individual constitutional rights").
23. See infra notes 22-23.
24. Kramer, supra note 10, at 215.
25. See Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 NOTRE DAME L. REV. 953 (2000); Merico-Stephens, supra note 6, at 329 ("Armed with new constitutional standing and encouraged by an energized Tenth Amendment and equally vigorous Eleventh Amendment, federalism is taking center stage anew . . . ."); Tribe, supra note 10, at 155 (arguing that the Court is elaborating a new picture of dual sovereignty in which the only category of congressional power that trumps state sovereignty is Section 5 of the Fourteenth Amendment, and the Court is eroding congressional power under that arena too).
26. See Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 NOTRE DAME L. REV. 953 (2000); Merico-Stephens, supra note 6, at 329 ("Armed with new constitutional standing and encouraged by an energized Tenth Amendment and equally vigorous Eleventh Amendment, federalism is taking center stage anew . . . ."); Tribe, supra note 10, at 155 (arguing that the Court is elaborating a new picture of dual sovereignty in which the only category of congressional power that trumps state sovereignty is Section 5 of the Fourteenth Amendment, and the Court is eroding congressional power under that arena too).
27. See Vicki C. Jackson, Principle and Compromise in Constitutional Adjudication: The Eleventh Amendment and State Sovereign Immunity, 75 NOTRE DAME L. REV. 953 (2000); Merico-Stephens, supra note 6, at 329 ("Armed with new constitutional standing and encouraged by an energized Tenth Amendment and equally vigorous Eleventh Amendment, federalism is taking center stage anew . . . ."); Tribe, supra note 10, at 155 (arguing that the Court is elaborating a new picture of dual sovereignty in which the only category of congressional power that trumps state sovereignty is Section 5 of the Fourteenth Amendment, and the Court is eroding congressional power under that arena too).
28. U.S. CONST. art. I, § 8, cl. 3.
29. U.S. CONST. amend. XIV, § 5. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (holding that the federal Trademark Remedy Clarification Act, Pub. L. No. 102-542, 106 Stat. 3567 (1992) (codified as amended in scattered sections of 15 U.S.C.), was not appropriate legislation under Section 5 and therefore did not validly abrogate Eleventh Amendment immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (holding that the federal Patent and Plant Variety Protection Remedy Clarification Act, 35 U.S.C. §§ 271 (h), 296 (1994), was not enacted pursuant to Section 5, but under the Commerce and Patent Clauses, and therefore does not abrogate Eleventh Amendment immunity). The Florida Prepaid cases are perhaps the most obvious combinations of the two trends, since in those cases, the Court ruled on the ability of Congress to abrogate the state's Eleventh Amendment immunity when acting under its Section 5 powers and carefully scrutinized Congress' means and ends in determining that neither law at issue was properly enacted pursuant to Section 5. See also City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down the Religious Freedom Restoration Act as beyond Congress' Section 5 powers).
30. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100 (1941).
31. That long streak began with the Court's opinion in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), and ended with the Court's 1995 ruling in United States v. Lopez, 514 U.S. 549 (1995).
32. The Court's ruling in United States v. Lopez, 514 U.S. 549 (1995) that Congress did not have the power under the Commerce Clause to enact legislation creating criminal penalties for possession of a firearm near a school, sounded the bell weather and indicated that the Court would be skeptical of congressional Commerce Clause power in the future. As discussed later in this article, see infra notes 43-52 and accompanying text, the Court's ruling in Morrison shows that Lopez was not an aberration. Rather, the Court's reasoning in Morrison is even more skeptical of congressional power than that in Lopez.
33. Morrison, 120 S. Ct. at 1759.
34. Morrison, however, was not the first case since the New Deal to strike down Commerce Clause legislation. That case was United States v. Lopez, 514 U.S. 549 (1995).
35. 42 U.S.C. § 13981 (1995).
36. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
37. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
38. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
39. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
40. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
41. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
42. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
43. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
44. See, e.g., Domestic Violence: Not Just a "Family Matter": Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 103d Cong. (1994); Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Fighting the Fear: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violent Crimes Against Women: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Hearing on Domestic Violence: Hearing Before the Senate Comm. on the Judiciary, 103d Cong. (1993); Violence Against Women: Hearing Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong. (1992); Violence Against Women: Victims of the System: Hearing Before the Senate Comm. on the Judiciary, 102d Cong. (1991); Women and Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (1990); Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. (1990).
45. 42 U.S.C. § 13981(b) (1994).
46. Id. § 13981(c). The Act defines the term "crime of violence" as: (A) an act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and (B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken.
47. Id. § 13981(d)(2).
48. Morrison, 120 S. Ct. at 1754.
49. The state task forces were composed of "appellate and trial judges, lawyers, bar leaders, law professors, court administrators, judicial educators, legislators, community leaders, and social scientists." Lynn H. Schafran, Overwhelming Evidence: Reports on Gender Bias in the Courts, TRIAL, Feb. 1990, at 28 (cited in S. REP. NO. 102-197, at 43-44 (1991)). The task forces "employ[ed] a wide range of data- collection methods," including public hearings; interviews with judges, lawyers, and litigants; reviews of transcripts and written decisions; empirical studies; and surveys of judges, lawyers, and court personnel. Id. at 28. Subsection (e)(3) provides litigants with a choice of forums, creating "concurrent jurisdiction" of state and federal courts over complaints brought under the Act. 42 U.S.C. § 13981(e)(3) (1994). Attorneys General of thirty-eight states agreed that that they were not providing adequate protection for victims of domestic violence. See Brief of the States of Arizona et al., as Amici Curiae in Support of Petitioners' Briefen the Merits at 15-16, United States v. Morrison, 120 S. Ct. 1740 (2000) (Nos. 99-5, 99-29).
50. The state task forces were composed of "appellate and trial judges, lawyers, bar leaders, law professors, court administrators, judicial educators, legislators, community leaders, and social scientists." Lynn H. Schafran, Overwhelming Evidence: Reports on Gender Bias in the Courts, TRIAL, Feb. 1990, at 28 (cited in S. REP. NO. 102-197, at 43-44 (1991)). The task forces "employ[ed] a wide range of data-collection methods," including public hearings; interviews with judges, lawyers, and litigants; reviews of transcripts and written decisions; empirical studies; and surveys of judges, lawyers, and court personnel. Id. at 28. Subsection (e)(3) provides litigants with a choice of forums, creating "concurrent jurisdiction" of state and federal courts over complaints brought under the Act. 42 U.S.C. § 13981(e)(3) (1994). Attorneys General of thirty-eight states agreed that that they were not providing adequate protection for victims of domestic violence. See Brief of the States of Arizona et al., as Amici Curiae in Support of Petitioners' Briefen the Merits at 15-16, United States v. Morrison, 120 S. Ct. 1740 (2000) (Nos. 99-5, 99-29).
51. 42 U.S.C. § 13981(a) (1994) (purporting to create a "[f]ederal civil rights cause of action").
52. Id. § 13981(e)(1) (stating that "[n]othing in this section entitles a person to a cause of action under subsection (c) of this section for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender").
53. Id. § 13981(a).
54. Morrison, 120 S. Ct. at 1746.
55. Id. Brzonkala alleged that after the attack, she became emotionally disturbed and depressed, and she withdrew from classes. Morrison, 120 S. Ct. at 1746. She had filed a complaint with Virginia Tech but found the university's response to be unsatisfactory. Id. Brzonkala also filed suit against the university, alleging that the university's handling of her complaint violated Title IX of the Education Amendments of 1972, 86 Stat. 373-375, 20 U.S.C. §§ 1681-1688. Id. The District Court dismissed Brzonkala's claim against the university on the grounds that it failed to state a claim upon which relief could be granted. Id.
56. Brzonkala v. Va. Polytechnic and State Univ., 935 F. Supp. 779 (W.D. Va. 1996), aff'd, 169 F.3d 820 (4th Cir. 1999), cert. granted, 527 U.S. 1068 (1999), cert. dismissed in part, 120 S. Ct. 1578 (2000), aff'd, 120 S. Ct. 1740 (2000).
57. Brzonkala v. Va. Polytechnic and State Univ., 169 F.3d 820 (4th Cir. 1999), cert. granted, 527 U.S. 1068 (1999), cert. dismissed in part, 120 S. Ct. 1578 (2000), aff'd, 120 S.Ct. 1740 (2000).
58. Morrison, 120 S. Ct. at 1759. The Court stated, "If the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States." Id.
59. 514 U.S. 549, 549 (1995).
60. See Morrison, 120 S. Ct. at 1745, 1748-54.
61. See United States v. Lopez, 514 U.S. 549, 549-50 (1995).
62. See Morrison, 120 S. Ct. at 1759-63 (Souter, J., dissenting).
63. H.R. CONF. REP. No. 103-711, at 385 (1994). The report noted that the fact that victims of gender motivated violence are deterred from participating in interstate commerce "diminish[es] national productivity, increase[es] medical and other costs, and decreas[es] the supply of and the demand for interstate products." Congress relied on evidence that the harms caused by domestic violence and sexual assault cost $3 billion in 1990, S. REP. No. 101-545, and $5 to $10 billion in 1993. See S. REP. No. 103-138, at 41 (1993).
64. Morrison, 120 S. Ct. at 1752.
65. Id.
66. Id. at 1751.
67. Id. at 1752. The Court seems to have been motivated by similar concerns in Jones v. United States, 120 S. Ct. 1904 (2000), in which it found that the arson of an owner-occupied residence is not subject to federal prosecution under a statute making it a federal crime to destroy by fire any property used in interstate commerce. Id. at 1908. The Court ruled that an owner-occupied residence is outside the scope of Commerce Clause power because it was not used in interstate commerce. Id. at 1912.
68. See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955).
69. See Lopez, 514 U.S. at 562-63.
70. See Wickard, 317 U.S. at 128-29.
71. See Morrison, 120 S. Ct. at 1754-55.
72. Id. at 1755.
73. Id. at 1756.
74. Id. (citing Robinson v. Memphis & Charleston R. Co.; United States v. Nichols; United States v. Ryan; United States v. Singleton; and United States v. Stanley, which were decided concurrently as "The Civil Rights Cases," 109 U.S. 3 (1883) (holding that Congressional authority to legislate enforcement of the Equal Protection Clause was limited to regulating state action and did not extend to the actions of private parties)). But see Jack M. Balkin, The Court Defers to a Racist Era, N.Y. TIMES, May 17, 2000, at A23 (arguing that The Civil Rights Cases were wrongly decided).
75. Morrison, 120 S. Ct. at 1755 ("These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government.").
76. Id. at 1753 n.7 ("As we have repeatedly noted, the Framers crafted the federal system of government so that the people's rights would be secured by the division of power.").
77. Id. at 1753.
78. Lopez, 514U.S. at 551 (The Act at issue was 18 U.S.C. § 922(q)(1994).). The Court cited the slippery slope that would result from Congress regulating local schools, raising the specter of Congress setting curriculum and regulating other educational matters. See id. at 564-66.
79. Lopez, 514 U.S. at 580 (Kennedy, J., concurring).
80. 517 U.S. 44 (1996).
81. U.S. CONST. art. I, § 8, cl. 3.
82. Seminole Tribe, 517 U.S. at 47.
83. Id. at 54-73.
84. See id. at 57-76.
85. Fitzpatrick v. Bitzer, 427 U.S. 445, 447 (1976).
86. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999). Proponents of the legislation had argued that it was justified by Congress' power to enforce the Due Process Clause of the Fourteenth Amendment because a patent violation is a deprivation of property. The Court's in-depth scrutiny of Congressional intent and the means by which Congress carried out its intent in the Florida Prepaid cases stands in stark contrast to the rational basis review with which the Court usually analyzes legislation, reflecting the skepticism of Congressional action which is also present in Lopez and Morrison. See supra notes 21 & 51 and accompanying text.
87. Alden, 527 U.S. 706 (1999).
88. Id. at 711. The underlying issue, whether states are subject to liability under the Fair Labor Standards Act, had been decided by the Court in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Garcia itself overturned a nine-year flirtation with the state sovereignty doctrine that began with the Court's ruling that the Fair Labor Standards Act could not apply to state employees performing traditional governmental functions in National League of Cities v. Usery, 426 U.S. 833 (1976). See Garcia, 469 U.S. at 530-31.
89. Alden, 527 U.S. at 713.
90. In every one of the cases cited, the majority included Chief Justice Rehnquist and Justices O'Connor, Kennedy, Thomas and Scalia. The dissenters included Justices Souter, Breyer, Ginsburg and Stevens. Significantly, Morrison and Lopez were also five-four decisions with the same Justices in the majority and the dissent.
91. See Meltzer, supra note 6, at 1012-15; Marcia Coyle & Harvey Berkman, A Court Revolution Brewing?, NAT'L L.J., June 5,2000, at A1; Steve France, Federalism, Laying the Groundwork, A.B.A.J., May 2000, at 40; Nowak, supra note 10, at 1091.
92. See Meltzer, supra note 6, at 1012-15; Marcia Coyle & Harvey Berkman, A Court Revolution Brewing?, NAT'L L.J., June 5,2000, at A1; Steve France, Federalism, Laying the Groundwork, A.B.A.J., May 2000, at 40; Nowak, supra note 10, at 1091.
93. See Meltzer, supra note 6, at 1012-15; Marcia Coyle & Harvey Berkman, A Court Revolution Brewing?, NAT'L L.J., June 5,2000, at A1; Steve France, Federalism, Laying the Groundwork, A.B.A.J., May 2000, at 40; Nowak, supra note 10, at 1091.
94. See Meltzer, supra note 6, at 1012-15; Marcia Coyle & Harvey Berkman, A Court Revolution Brewing?, NAT'L L.J., June 5,2000, at A1; Steve France, Federalism, Laying the Groundwork, A.B.A.J., May 2000, at 40; Nowak, supra note 10, at 1091.
95. See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 866-67 (1986) ("The most important question for the framers was whether the national or the state governments possessed primary authority to determine and secure the status and rights of American citizens.").
96. See U.S. CONST. amend. XIV, § 1.
97. See Kaczorowski, supra note 74, at 911-12.
98. See The Civil Rights Cases, 109 U.S. 3, 10-12 (1883).
99. Bureau of National Business Affairs, The Civil Rights Act of 1964: Text, Analysis, Legislative History: What It Means to Employers, Businessmen, Unions, Employees, Minority Groups 81-82, 324 (Wash. 1964).
100. See A Bill to Eliminate Discrimination in Public Accommodations Affecting Interstate Commerce, 1963: Hearings on S. 1732 Before the Senate Comm. on Commerce, 88th Cong. 252 (1964).
101. For example, in his testimony before the Senate Commerce Committee's hearings in 1963, Attorney General Robert Kennedy stated that the law would be "clearly constitutional" under the Commerce Clause, and that the Fourteenth Amendment did not clearly give Congress the authority to enact the statute. A Bill to Eliminate Discrimination in Public Accommodations Affecting Interstate Commerce, 1963: Hearings on S. 1732 Before the Senate Comm. on Commerce, 88th Cong. 28 (1964).
102. Note, for example, the comments of Senator Pastore: "I believe in this bill, because I believe in the dignity of man, not because it impedes our commerce . . . . I like to feel that what we are talking about is a moral issue, . . . . And that morality, it seems to me, comes under the 14th amendment ... [and] equal protection of the law." A Bill to Eliminate Discrimination in Public Accommodations Affecting Interstate Commerce, 1963: Hearings on S. 1732 Before the Senate Comm. on Commerce, 88th Cong. 252 (1964).
103. For example, Senator Monroney, a Democratic Senator sympathetic with the policy of the law, noted that he was "worried about the use" of the Commerce Clause "on matters which have been for more than 170 years thought to be within the realm of local control . . . . [If] we pass this bill, even though the end we seek is good, I wonder how far we are stretching the Constitution." A Bill to Eliminate Discrimination in Public Accommodations Affecting Interstate Commerce, 1963: Hearings on S. 1732 Before the Senate Comm. on Commerce, 88th Cong. 66-67 (1964).
104. See A Bill to Eliminate Discrimination in Public Accommodations Affecting Interstate Commerce, 1963: Hearing on S. 1732 Before the Senate Comm. on Commerce, 88th Cong. 1383-87 (1964).
105. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (finding the application of Title II to a hotel in downtown Atlanta to be within Congress' Commerce Clause powers); Katzenbach v. McClung, 379 U.S. 294 (1964) (finding the application of the Bill to a large barbecue restaurant located eleven blocks from an interstate highway to be within the Commerce Clause powers). The Court in Katzenbach found that the aggregate effect of discrimination on interstate commerce was sufficient to satisfy its test under Wickard v. Filburn, 317 U.S. 111 (1942). See Katzenbach, 379 U.S. at 301-02. On the issue of whether Congress had relied on the proper source of power, the Court stated, "[t]hat Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid . . . . [T]hat fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse." Heart of Atlanta Motel, 379 U.S. at 257.
106. Moreover, there was considerable evidence that gender-motivated violence does impact on interstate commerce. See supra note 28 and accompanying text.
107. See Morrison, 120 S. Ct. at 1763-64 (Souter, J., dissenting).
108. Of course, there is no clear bright-line between "economic" and "non-economic" activity. The Court could easily have found violence against women to be economic activity, or at least, to have a substantial effect on economic activity. See Catherine A. MacKinnon, Comment, Disputing Male Sovereignty: On United States v. Morrison, 114 HARV. L. REV. 135, 148-49 (2000).
109. Saenz v. Roe, 526 U.S. 489 (1999); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
110. Saenz, 526 U.S. at 489.
111. Id. at 511 (Rehnquist, C.J., dissenting). The other such case, Colgate v. Harvey, 296 U.S. 404 (1935), in which the Court struck down a state income tax on in-state residents' income earned outside the state, was overturned just five years later in the case of Madden v. Kentucky, 309 U.S. 83 (1940).
112. 83 U.S. (16 Wall.) 36 (1872). For other discussions of Saenz, see, e.g., Nan S. Ellis & Cheryl Miller, Welfare Waiting Periods: A Public Policy Analysis of Saenz v. Roe, 11 STAN. L. & POL'Y REV. 343 (2000); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughterhouse Cases, 109 YALE L.J. 643, 698 (2000); Tribe, supra note 10, at 110.
113. 83 U.S. (16 Wall.) 36 (1872). For other discussions of Saenz, see, e.g., Nan S. Ellis & Cheryl Miller, Welfare Waiting Periods: A Public Policy Analysis of Saenz v. Roe, 11 STAN. L. & POL'Y REV. 343 (2000); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughterhouse Cases, 109 YALE L.J. 643, 698 (2000); Tribe, supra note 10, at 110.
114. 83 U.S. (16 Wall.) 36 (1872). For other discussions of Saenz, see, e.g., Nan S. Ellis & Cheryl Miller, Welfare Waiting Periods: A Public Policy Analysis of Saenz v. Roe, 11 STAN. L. & POL'Y REV. 343 (2000); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughterhouse Cases, 109 YALE L.J. 643, 698 (2000); Tribe, supra note 10, at 110.
115. But see Tribe, supra note 10, at 140 (arguing that the Saenz decision illustrates that in the current era, claims of individual rights will most likely prevail if they can be expressed through the language of "such concretely architectural features of the Constitution" as separation of powers or federalism).
116. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
117. Saenz, 526 U.S. at 492.
118. The state asserted that it enacted the statute because it would save the state approximately $10.9 million in annual welfare costs. Id. at 497. As the Court pointed out in Saenz, although the state's actual motivation may have been to slow the migration of welfare recipients to what is a relatively generous state in terms of the level of welfare benefits, the Court had found that purpose to be constitutionally impermissible in an earlier analogous case governing the right to travel by welfare recipients, Shapiro v. Thompson, 394 U.S. 618 (1969). See Saenz, 526 U.S. at 506.
119. Saenz, 526 U.S. at 504.
120. Id. at 505 ("[S]ince the right to travel embraces the citizen's right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty."). The Court continued, "[a]s in Shapiro, we reject any contributory rationale for the denial of benefits to new residents . . . . In short, the State's legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens." Id. at 507 (emphasis added).
121. 394 U.S. 618 (1969). The statute in Shapiro differed from that at issue in Saenz because the statute in Shapiro prohibited newly arrived residents from receiving any welfare benefits during their first year of residency. See Shapiro, 394 U.S. at 621-22.
122. Although the Court's reasoning in Saenz was surprising to some, the Court's reasoning, and the significance of federal citizenship was predicted by Professor Kathleen Sullivan in 1995. See Sullivan, supra note 6, at 107 (predicting that "the majority in Term Limits can be expected to continue to invalidate state laws that burden federal citizens" and listing the right to travel as an example likely to come before the Court if Congress devolved social programs to the states in block grants). The respondents in Saenz based their arguments heavily on the rights of federal citizenship. See Brief of Respondents, Saenz (No. 98-97), available at 1998 WL 847469; Transcript of Oral Argument, Saenz (1999), available at 1999 WL 22762 (argument of Mark Rosenbaum for Respondents). That was no coincidence, as Dean Sullivan was involved in an earlier case challenging the same California law, Anderson v. Green, 513 U.S. 557 (1995) (later dismissed as moot), including arguing that case before the Court. See Transcript of Oral Argument, Anderson v. Green, 513 U.S. 557 (1995) (No. 94-197), available at 1995 WL 61109 at *32-*35 (Jan. 17, 1995).
123. See Shapiro, 394 U.S. at 634-38.
124. Saenz, 526 U.S. at 499.
125. See id. at 502-03.
126. Id. at 502.
127. Id. at 504 (citing Justice Kennedy's concurrence to the Term Limits case: "That newly arrived citizens 'have two political capacities, one state and one federal,' adds special force to their claim that they have the same rights as others who share their citizenship."). The Court cited both the majority and dissenting opinions from the Slaughter-House Cases in support of its holding that this aspect of the right to travel is essential to the nature of federal citizenship. See id. at 503-04.
128. U.S. Term Limits, Inc., 514 U.S. at 783.
129. Id. (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).
130. Id. at 787.
131. Id. at 788 (referring to U.S. CONST. art. I, § 5, cl. 1 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .")).
132. Id. at 804 (referring to U.S. CONST. art. I, § 6, cl. 1 (providing that "the salaries of representatives should 'be ascertained by Law, and paid out of the Treasury of the United States'")).
133. See id. at 804-05 (referring to U.S. CONST. art. I, § 4, cl. 1 which states: ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .")). The Court held separately that Amendment 73 was not a permissible time, place and manner restriction. Term Limits, Inc., 514 U.S. at 828.
134. U.S. Term Limits, Inc., 514 U.S. at 800.
135. Id. at 802. This default rule on the relation between the federal and state governments was hotly contested by Justice Thomas in his dissent, who articulated the opposite default rule that the states may exercise all powers that are not taken away by the constitution either expressly or by necessary implication. See id. at 847-48 (Thomas, J., dissenting). See Sullivan, supra note 6, at 79-80. Nominally a case about how to interpret a few lines of constitutional text, Term Limits elicited a confrontation among the Justices over the basic structural principles of the federal union: are we one people insofar as we constitute the federal government, as the majority held, or rather, as the dissent would have it, irreducibly the peoples of the several states?
136. See U.S. Term Limits, Inc., 514 U.S. at 800-01. The premise for this determination is that although the Framers intended the states to retain sovereignty, the states only retain sovereignty to the extent that the Constitution has not divested them of their original powers and transferred them to the federal government. See id. at 801.
137. Id. at 803.
138. Id. Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but the people . . . . The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. Id at 821.
139. Id. at 821.
140. Sullivan, supra note 6, at 102.
141. Id. at 103 ("To the majority, judicial intervention is needed to protect the federal government from the states; to the dissent, it is needed to protect the states from the federal government. Justice Kennedy alone would intervene to protect each side from encroachment by the other.").
142. See, e.g., id. at 102 ("We are in the midst of an antifederalist (sic) revival of uncertain scope and consequence."); see also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 665 (1999) (Stevens, J., dissenting) ("The full reach of [Seminole Tribe's] dramatic expansion of the judge-made doctrine of sovereign immunity is unpredictable; its dimensions are defined only by the present majority's perception of constitutional penumbras rather than constitutional text."); Meltzer, supra note 6, at 1012 ("In ways that the Court fails to acknowledge, its effort fails to promote any coherent conception of states' rights or state autonomy while harming legitimate national objectives."); Merico-Stephens, supra note 6, at 327 (describing the recent Supreme Court's federalism as a "mystical world" and "an abstruse and bewildering labyrinth of categorical principles discernible only to five spellbound members of our current Supreme Court").
143. See, e.g., id. at 102 ("We are in the midst of an antifederalist (sic) revival of uncertain scope and consequence."); see also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 665 (1999) (Stevens, J., dissenting) ("The full reach of [Seminole Tribe's] dramatic expansion of the judge- made doctrine of sovereign immunity is unpredictable; its dimensions are defined only by the present majority's perception of constitutional penumbras rather than constitutional text."); Meltzer, supra note 6, at 1012 ("In ways that the Court fails to acknowledge, its effort fails to promote any coherent conception of states' rights or state autonomy while harming legitimate national objectives."); Merico-Stephens, supra note 6, at 327 (describing the recent Supreme Court's federalism as a "mystical world" and "an abstruse and bewildering labyrinth of categorical principles discernible only to five spellbound members of our current Supreme Court").
144. Saenz, 526 U.S. at 501 (stating that the right to free interstate movement is a "necessary concomitant of the stronger Union the Constitution created").
145. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 630 (1969) ("'For all the great purposes for which the Federal government was formed, we are one people, with one common country.'") (quoting the Passenger Cases, 48 U.S. (7 How.) 283, 492 (1849) (Taney, C.J., dissenting)); Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 43 (1867) ("The people of these United States constitute one nation [and] . . . have a government in which all of them are deeply interested.").
146. Crandall, 73 U.S. at 35 (1867).
147. Saenz, 526 U.S. at 500 (defining the three components of the right to travel as 1) the right of a citizen to enter and leave another state; 2) the right to be treated as a "welcome visitor rather than as an unfriendly alien when temporarily present in the second State" and 3) "for those travelers who . . . become permanent residents, the right to be treated like other citizens of that State").
148. Tribe, supra note 10, at 156 (noting that states represent centers of democratic choice, and can only serve as those centers because people choose their state of residence).
149. Saenz, 526 U.S. at 504 ("That newly arrived citizens 'have two political capacities, one state and one federal,' adds special force to their claim that they have the same rights as others who share their citizenship.").
150. Id. at 506.
151. Id. at 510-11 (quoting the Citizenship Clause of the Fourteenth Amendment, U.S. CONST. amend XIV, § 1, cl. 1).
152. Saenz, 526 U.S. at 511 ("The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, 'framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.'" (citing Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935))).
153. See U.S. Term Limits, Inc., 514 U.S. at 845-926 (Thomas, J., dissenting). See also Sullivan, supra note 6, at 102.
154. U.S. Term Limits, Inc., 514 U.S. at 845. In Justice Thomas' view of the federal government, it is representative of states rather than of federal citizens, because the federal government owes its existence to the states who joined together to draft the Constitution. See id. at 846-48. This view contrasts markedly with that of the majority, who saw the federal government as representative of federal citizens, not states. See id. at 820-21.
155. See Alden v. Maine, 527 U.S. 706, 723-24, 754 (1999).
156. Id. at 729 (explaining how the Court has determined the scope of the states' immunity from suit in its recent sovereign immunity cases). See also Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 1004 (2000) (discussing the Court's recent rulings on federalism as "prohibitions that reside in the penumbra of the Eleventh Amendment, in the vague text of the Tenth, or in a more general but non-text-specific constitutional structure").
157. U.S. Term Limits, Inc., 514 U.S. at 794.
158. Id. at 820 ("[S]tate imposed qualifications . . . would undermine the second critical idea recognized in Powell [v. McCormack]: that an aspect of sovereignty is the right of the people to vote for whom they wish.").
159. Id. at 838 (Kennedy, J., concurring) (declining to discuss the "intricacy" of Qualifications Clause interpretation, he stated, "[I]t is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system.").
160. See id. at 840-41 (Kennedy, J., concurring) (The federal government is not made up of states, rather it is one of "the American people [in] one common mass." (quoting McCulloch v. Maryland, 4 Wheat. 316, 403 (1819))).
161. Id. at 842 (Kennedy, J., concurring) ("Nothing in the Constitution or The Federalist Papers, however, supports the idea of state interference with the most basic relation between the National Government and its citizens . . . .").
162. See id. at 842-43.
163. U.S. Term Limits, Inc., 514 U.S. at 842 (Kennedy, J., concurring).
164. Id. at 843 (Kennedy, J., concurring).
165. Not surprisingly, Justice Kennedy also voted with the majority in Saenz. However, he had more company in that decision, which was decided based on a comfortable 7-2 majority. Only Justices Thomas and Rehnquist dissented. See Saenz v. Roe, 526 U.S. 489 (1999).
166. Sullivan, supra note 6, at 105 (writing after Lopez but before Seminole Tribe and progeny, stating "[w]hether the Court is moving in such an antifederalist direction would appear to depend on the vote of Justice Kennedy.").
167. U.S. Term Limits, Inc., 514 U.S. at 843 (Kennedy, J., concurring) (noting that the observation of the Slaughter-House Cases Court that other federal rights "owe their existence to 'the Federal government, its National character, its Constitution, or its laws'").
168. See William E. Forbath, Caste, Class and Equal Citizenship, 98 MICH. L. REV. 1, 7-8 (1999) [hereinafter Forbath, Equal Citizenship] (arguing that the principle of "equal citizenship," which gave social meaning to the idea of citizenship aimed at caste or perpetual underclass, was at the heart of the Warren Court's jurisprudence).
169. See William E. Forbath, Caste, Class and Equal Citizenship, 98 MICH. L. REV. 1, 7-8 (1999) [hereinafter Forbath, Equal Citizenship] (arguing that the principle of "equal citizenship," which gave social meaning to the idea of citizenship aimed at caste or perpetual underclass, was at the heart of the Warren Court's jurisprudence).
170. See supra notes 131-32 and accompanying text.
171. 304 U.S. 144 (1938).
172. See JOHN HART ELY, DEMOCRACY AND DISTRUST 75-77 (1978) (arguing that the concern about the effectiveness of political process, articulated in Carolene Products footnote four, was the primary guide for the Warren Court's determination of individual rights).
173. See Carolene Products Co., 304 U.S. at 151-53.
174. Id. at 153 n.4.
175. See, e.g., ELY, supra note 147, at 75-77; Louis Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 COLUM. L. REV. 1093 (1982).
176. See, e.g., ELY, supra note 147, at 75-77; Louis Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 COLUM. L. REV. 1093 (1982).
177. J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2343 (1997) (suggesting that the Constitution requires status hierarchies to be dismantled when they deny citizens the right to vote and participate in the democratic process).
178. Romer v. Evans, 517 U.S. 620, 635-36 (1996) (striking down an amendment to the Colorado constitution, which prohibited localities from enacting ordinances prohibiting discrimination against gays); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 538 (1973) (striking down a federal statute making households with unrelated people in them ineligible for food stamps because the regulation appeared to be based on prejudice against hippies). See also Tribe, supra note 10, at 173 (noting that in Romer, the Court struck the state's constitutional amendment rendering a certain class of people ineligible for the protection of the state laws because that was fundamentally incompatible with the structure of the liberal legal order).
179. See Balkin, supra note 151, at 2316-20.
180. See supra notes 131-32 and accompanying text.
181. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996) (finding a constitutional right to petition for waiver of appellate fees in parental rights termination cases); Boddie v. Connecticut, 401 U.S. 371, 380-81 (1971) (finding a constitutional right to petition for waiver of filing fees in divorce cases); Griffin v. Illinois, 351 U.S. 12, 18-19 (1956) (finding a constitutional right to waiver of appellate fees in criminal matters when the defendant risks incarceration).
182. See infra notes 228-30 and accompanying text.
183. See Plyler v. Doe, 457 U.S. 202, 223-24, 230 (1982); LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW BY LAURENCE H. TRIBE 1444-45 (2d ed. 1988).
184. See Kaczorowksi, supra note 74, at 927 (arguing that the ruling in Brown v. Board of Education that segregated schools violate the Fourteenth Amendment is justified because, as the Court stated in Brown, education is "'the very foundation of good citizenship'" (quoting Brown v. Board of Educ., 347 U.S. 483, 493 (1954))).
185. Tribe, supra note 10, at 113 (pointing out that Shapiro was very difficult for the Court to decide, having been argued twice before the Court reached a decision, and attributing such difficulty to an awkward fit between the Court's reasoning and an equal protection framework).
186. Even Justice Thomas, in his dissent to Saenz, noted that he maybe willing to look more carefully at the meaning of the Privileges or Immunities Clause in future decisions. Saenz, 526 U.S. at 527-28 (Thomas, J., dissenting).
187. Tribe, supra note 10, at 140 (arguing that the Saenz decision illustrates that in the current era, claims of individual rights will most likely prevail if they can be expressed through the language of "such concretely architectural features of the Constitution" as separation of powers or federalism).
188. Marbury v. Madison, 5 U.S. 137, 174 (1803).
189. See, e.g., Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071 (2000); Newsom, supra note 91; Tribe, supra note 10.
190. See, e.g., Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071 (2000); Newsom, supra note 91; Tribe, supra note 10.
191. See, e.g., Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071 (2000); Newsom, supra note 91; Tribe, supra note 10.
192. U.S. CONST. amend. XIV, § 1, cl. 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.").
193. Indeed, the Citizenship Clause has generally been neglected by courts as well as by scholars despite its potential for clarifying the federalist system and as a font of individual rights. See supra note 10 and accompanying text.
194. Saenz, 526 U.S. at 506 (stating that the fundamental nature of the right to travel "rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence").
195. U.S. Term Limits, Inc., 514 U.S. at 843 (Kennedy, J., concurring).
196. Tribe, supra note 10, at 140.
197. Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 CONST. COMMENT. 235, 276 (1984) ("One of the great achievements of the Republicans in the early reconstruction period was to establish the meaning of American citizenship."); James W. Fox, Citizenship, Poverty and Federalism, 60 U. PITT. L. REV. 421, 501-02 (1999) (Framers of the Fourteenth Amendment viewed defining national citizenship as of paramount importance.); Kaczorowski, supra note 74, at 866-67 ("The most important question for the framers was whether the national or the state governments possessed primary authority to determine and secure the status and rights of American citizens.").
198. Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 CONST. COMMENT. 235, 276 (1984) ("One of the great achievements of the Republicans in the early reconstruction period was to establish the meaning of American citizenship."); James W. Fox, Citizenship, Poverty and Federalism, 60 U. PITT. L. REV. 421, 501-02 (1999) (Framers of the Fourteenth Amendment viewed defining national citizenship as of paramount importance.); Kaczorowski, supra note 74, at 866-67 ("The most important question for the framers was whether the national or the state governments possessed primary authority to determine and secure the status and rights of American citizens.").
199. Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 CONST. COMMENT. 235, 276 (1984) ("One of the great achievements of the Republicans in the early reconstruction period was to establish the meaning of American citizenship."); James W. Fox, Citizenship, Poverty and Federalism, 60 U. PITT. L. REV. 421, 501-02 (1999) (Framers of the Fourteenth Amendment viewed defining national citizenship as of paramount importance.); Kaczorowski, supra note 74, at 866-67 ("The most important question for the framers was whether the national or the state governments possessed primary authority to determine and secure the status and rights of American citizens.").
200. U.S. CONST. amend. XIV, § 1, cl. 1.
201. Dred Scott v Sanford, 60 U.S. (19 How.) 393, 404 (1856).
202. U.S. CONST. amend. XIII. See Tribe, supra note 10, at 127. The Citizenship Clause also had the important effect of constitutionalizing birthright citizenship of children born in United States territory. See United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898). While this decision has been criticized on both legal and policy grounds, see, e.g., PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN AMERICAN POLITY 78-79 (1985), it remains the cornerstone of the American approach to national citizenship with regard to immigration law.
203. U.S. CONST. amend. XIII. See Tribe, supra note 10, at 127. The Citizenship Clause also had the important effect of constitutionalizing birthright citizenship of children born in United States territory. See United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898). While this decision has been criticized on both legal and policy grounds, see, e.g., PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN AMERICAN POLITY 78-79 (1985), it remains the cornerstone of the American approach to national citizenship with regard to immigration law.
204. Farber & Muench, supra note 169, at 277 (stating that after the Civil War, "the concept of national citizenship became triumphant"); Kaczorowski, supra note 74, at 866-67. But see Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter- House Cases, 70 CHI.-KENT L. REV. 627, 649 (1994) (arguing that the Citizenship Clause was "added to the Senate at the last moment to write into the Constitution the antislavery view that the Thirteenth Amendment granted citizenship with freedom").
205. Farber & Muench, supra note 169, at 277 (stating that after the Civil War, "the concept of national citizenship became triumphant"); Kaczorowski, supra note 74, at 866-67. But see Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter- House Cases, 70 CHI.-KENT L. REV. 627, 649 (1994) (arguing that the Citizenship Clause was "added to the Senate at the last moment to write into the Constitution the antislavery view that the Thirteenth Amendment granted citizenship with freedom").
206. Farber & Muench, supra note 169, at 277 (stating that after the Civil War, "the concept of national citizenship became triumphant"); Kaczorowski, supra note 74, at 866-67. But see Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 CHI.-KENT L. REV. 627, 649 (1994) (arguing that the Citizenship Clause was "added to the Senate at the last moment to write into the Constitution the antislavery view that the Thirteenth Amendment granted citizenship with freedom").
207. Farber & Muench, supra note 169, at 277; Kaczorowski, supra note 74, at 866-67.
208. Farber & Muench, supra note 169, at 277; Kaczorowski, supra note 74, at 866-67.
209. Kaczorowski, supra note 74, at 872. See also Farber & Muench, supra note 169, at 263 ("Both the expansion of national power and the growing significance of national allegiance became evident early in the war.").
210. Kaczorowski, supra note 74, at 872. See also Farber & Muench, supra note 169, at 263 ("Both the expansion of national power and the growing significance of national allegiance became evident early in the war.").
211. Kaczorowski, supra note 74, at 873. See also Farber & Muench, supra note 169, at 277 (asserting that after the Civil War, "the concept of national citizenship became triumphant").
212. Kaczorowski, supra note 74, at 873. See also Farber & Muench, supra note 169, at 277 (asserting that after the Civil War, "the concept of national citizenship became triumphant").
213. President Johnson and the Democratic opponents of civil rights insisted on the primacy of state citizenship, and Johnson vetoed the first Civil Rights Act on the grounds that it interfered too much with state sovereignty. See Kaczorowski, supra note 74, at 903-04. This dispute is strikingly similar to that between Justices Kennedy and Thomas in their Term Limits opinions. See U.S. Term Limits, Inc., 514 U.S. at 838-926 (Kennedy, J., concurring; Thomas, J., dissenting).
214. Douglas G. Smith, Citizenship and the Fourteenth Amendment, 34 SAN DIEGO L. REV. 681, 689 (1997) (arguing that the meaning of the Citizenship Clause was two-fold: to nationalize citizenship in the United States and to make state citizenship derivative thereof); AMAR, THE BILL OF RIGHTS 196 (bottom note) (1998) (stating that the declaration in the civil Rights Act of 1866 that blacks were citizens, later repeated in the Citizenship Clause of the Fourteenth Amendment, itself carried with it "all the privileges and immunities of national citizenship");
215. Douglas G. Smith, Citizenship and the Fourteenth Amendment, 34 SAN DIEGO L. REV. 681, 689 (1997) (arguing that the meaning of the Citizenship Clause was two-fold: to nationalize citizenship in the United States and to make state citizenship derivative thereof); AMAR, THE BILL OF RIGHTS 196 (bottom note) (1998) (stating that the declaration in the civil Rights Act of 1866 that blacks were citizens, later repeated in the Citizenship Clause of the Fourteenth Amendment, itself carried with it "all the privileges and immunities of national citizenship");
216. Amar, The Supreme Court, 1999 Term Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 105-08 (arguing that Section 5 of the Fourteenth Amendment gave Congress broad powers "to affirm that blacks were equal citizens worthy of respect and dignity" and enforce the ideal of equal citizenship for all those who have historically been denied equality).
217. Balkin, supra note 151, at 2347 ("The citizenship clause is a second Declaration of Independence, announcing that equal citizenship would henceforth be available to all regardless of race or prior condition of servitude."); Fox, supra note 169, at 425 ("The framers of Reconstruction believed that, by making a clear statement about citizenship, federalism could assume its proper role in service of the citizens."); see also Farber & Muench, supra note 169, at 236 ("The fourteenth amendment was intended to bridge the gap between positive law and higher law by empowering the national government to protect the natural rights of its citizens.").
218. Balkin, supra note 151, at 2347 ("The citizenship clause is a second Declaration of Independence, announcing that equal citizenship would henceforth be available to all regardless of race or prior condition of servitude."); Fox, supra note 169, at 425 ("The framers of Reconstruction believed that, by making a clear statement about citizenship, federalism could assume its proper role in service of the citizens."); see also Farber & Muench, supra note 169, at 236 ("The fourteenth amendment was intended to bridge the gap between positive law and higher law by empowering the national government to protect the natural rights of its citizens.").
219. Balkin, supra note 151, at 2347 ("The citizenship clause is a second Declaration of Independence, announcing that equal citizenship would henceforth be available to all regardless of race or prior condition of servitude."); Fox, supra note 169, at 425 ("The framers of Reconstruction believed that, by making a clear statement about citizenship, federalism could assume its proper role in service of the citizens."); see also Farber & Muench, supra note 169, at 236 ("The fourteenth amendment was intended to bridge the gap between positive law and higher law by empowering the national government to protect the natural rights of its citizens.").
220. U.S. CONST. amend. XIV, § 1, cl. 2 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .").
221. See Fox, supra note 169, at 487 n.252, 502 n.296, 515-16 n.347.
222. Id. at 490 (noting the context of Reconstruction, where "real people had been denied basic human dignity and citizenship"); Smith, supra note 178, at 793 (stating that southern states used Black Codes to make newly freed slaves into second-class citizens); see also John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1388 (1992) (maintaining that references to abridging privileges or immunities in 1866 dealt primarily with the Black Codes).
223. Id. at 490 (noting the context of Reconstruction, where "real people had been denied basic human dignity and citizenship"); Smith, supra note 178, at 793 (stating that southern states used Black Codes to make newly freed slaves into second-class citizens); see also John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1388 (1992) (maintaining that references to abridging privileges or immunities in 1866 dealt primarily with the Black Codes).
224. Prior to the ratification of the Fourteenth Amendment, Congress attempted to enforce federal civil rights through the Civil Rights Act of 1866. However, some proponents of the Act feared that they lacked constitutional authority to enforce those rights. The debate over Congress' constitutional authority to enact the Civil Rights Act led to the drafting and ratification of the Fourteenth Amendment as a sound constitutional basis for the Act. In effect, therefore, the Fourteenth Amendment constitutionalized the Civil Rights Act. See Farber & Muench, supra note 169, at 275 ("The general theory of the Civil Rights Act [of 1866] was that Congress had the same power to protect citizens at home [as abroad] . . . [and the framers] believed that the fourteenth amendment supplied the missing authority to protect basic human rights.").
225. See Amar, Intratextualism, 112 HARV. L. REV. 747, 822-23 (1999) (arguing that the Framers intended Congress to have broad power to enforce both the 13th and 14th Amendments); Steven A. Engel, Note, The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5, 109 YALE L.J. 115 (arguing that the Framers intended Congress to have enforcement powers as broad as those granted by the "Necessary and Proper" Clause (U.S. CONST. art. I, § 8, cl. 18) as interpreted by the Court in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
226. See Amar, Intratextualism, 112 HARV. L. REV. 747, 822-23 (1999) (arguing that the Framers intended Congress to have broad power to enforce both the 13th and 14th Amendments); Steven A. Engel, Note, The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5, 109 YALE L.J. 115 (arguing that the Framers intended Congress to have enforcement powers as broad as those granted by the "Necessary and Proper" Clause (U.S. CONST. art. I, § 8, cl. 18) as interpreted by the Court in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
227. A number of scholars have argued that the Privileges or Immunities Clause, which directly follows the Citizenship Clause, was intended to incorporate the Bill of Rights and make it enforceable against the States. See, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1089-95(1953); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates the Bill of Rights). But see Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. CIN. L. REV. 1 (1993) (arguing against Amar's incorporation theory); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) (arguing that the Privileges or Immunities Clause does not incorporate the Bill of Rights because it has no clear meaning); Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1033-34 (1992) ("[T]here is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would 'incorporate' the Bill of Rights, making its restrictions applicable to the states . . . ."). Prior to the Fourteenth Amendment, the Court had ruled that the Bill of Rights was not intended to limit the states in the case of Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). The better approach, however, is to focus on what the Framers understood the term "citizen" to mean, and what rights they intended to be encompassed within that concept, because the Framers explicitly linked the Privileges and Immunities Clause to the rights of citizenship. Evidence from the ratification debates and contemporaneous legal doctrine indicates that the Framers viewed the meaning of federal citizenship very broadly, and that the rights that adhered to citizenship were considerably broader than those enumerated in the Bill of Rights. The Court in Saenz followed this approach. Emphasizing the fundamental nature of the right to travel, the Court pointed out that "[t]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence." Saenz, 526 U.S. at 506.
228. A number of scholars have argued that the Privileges or Immunities Clause, which directly follows the Citizenship Clause, was intended to incorporate the Bill of Rights and make it enforceable against the States. See, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1089-95(1953); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates the Bill of Rights). But see Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. CIN. L. REV. 1 (1993) (arguing against Amar's incorporation theory); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) (arguing that the Privileges or Immunities Clause does not incorporate the Bill of Rights because it has no clear meaning); Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1033-34 (1992) ("[T]here is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would 'incorporate' the Bill of Rights, making its restrictions applicable to the states . . . ."). Prior to the Fourteenth Amendment, the Court had ruled that the Bill of Rights was not intended to limit the states in the case of Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). The better approach, however, is to focus on what the Framers understood the term "citizen" to mean, and what rights they intended to be encompassed within that concept, because the Framers explicitly linked the Privileges and Immunities Clause to the rights of citizenship. Evidence from the ratification debates and contemporaneous legal doctrine indicates that the Framers viewed the meaning of federal citizenship very broadly, and that the rights that adhered to citizenship were considerably broader than those enumerated in the Bill of Rights. The Court in Saenz followed this approach. Emphasizing the fundamental nature of the right to travel, the Court pointed out that "[t]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence." Saenz, 526 U.S. at 506.
229. A number of scholars have argued that the Privileges or Immunities Clause, which directly follows the Citizenship Clause, was intended to incorporate the Bill of Rights and make it enforceable against the States. See, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1089-95(1953); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates the Bill of Rights). But see Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. CIN. L. REV. 1 (1993) (arguing against Amar's incorporation theory); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) (arguing that the Privileges or Immunities Clause does not incorporate the Bill of Rights because it has no clear meaning); Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1033-34 (1992) ("[T]here is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would 'incorporate' the Bill of Rights, making its restrictions applicable to the states . . . ."). Prior to the Fourteenth Amendment, the Court had ruled that the Bill of Rights was not intended to limit the states in the case of Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). The better approach, however, is to focus on what the Framers understood the term "citizen" to mean, and what rights they intended to be encompassed within that concept, because the Framers explicitly linked the Privileges and Immunities Clause to the rights of citizenship. Evidence from the ratification debates and contemporaneous legal doctrine indicates that the Framers viewed the meaning of federal citizenship very broadly, and that the rights that adhered to citizenship were considerably broader than those enumerated in the Bill of Rights. The Court in Saenz followed this approach. Emphasizing the fundamental nature of the right to travel, the Court pointed out that "[t]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence." Saenz, 526 U.S. at 506.
230. A number of scholars have argued that the Privileges or Immunities Clause, which directly follows the Citizenship Clause, was intended to incorporate the Bill of Rights and make it enforceable against the States. See, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1089-95(1953); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates the Bill of Rights). But see Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. CIN. L. REV. 1 (1993) (arguing against Amar's incorporation theory); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) (arguing that the Privileges or Immunities Clause does not incorporate the Bill of Rights because it has no clear meaning); Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1033-34 (1992) ("[T]here is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would 'incorporate' the Bill of Rights, making its restrictions applicable to the states . . . ."). Prior to the Fourteenth Amendment, the Court had ruled that the Bill of Rights was not intended to limit the states in the case of Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). The better approach, however, is to focus on what the Framers understood the term "citizen" to mean, and what rights they intended to be encompassed within that concept, because the Framers explicitly linked the Privileges and Immunities Clause to the rights of citizenship. Evidence from the ratification debates and contemporaneous legal doctrine indicates that the Framers viewed the meaning of federal citizenship very broadly, and that the rights that adhered to citizenship were considerably broader than those enumerated in the Bill of Rights. The Court in Saenz followed this approach. Emphasizing the fundamental nature of the right to travel, the Court pointed out that "[t]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence." Saenz, 526 U.S. at 506.
231. A number of scholars have argued that the Privileges or Immunities Clause, which directly follows the Citizenship Clause, was intended to incorporate the Bill of Rights and make it enforceable against the States. See, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1089-95(1953); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates the Bill of Rights). But see Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. CIN. L. REV. 1 (1993) (arguing against Amar's incorporation theory); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) (arguing that the Privileges or Immunities Clause does not incorporate the Bill of Rights because it has no clear meaning); Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1033-34 (1992) ("[T]here is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would 'incorporate' the Bill of Rights, making its restrictions applicable to the states . . . ."). Prior to the Fourteenth Amendment, the Court had ruled that the Bill of Rights was not intended to limit the states in the case of Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). The better approach, however, is to focus on what the Framers understood the term "citizen" to mean, and what rights they intended to be encompassed within that concept, because the Framers explicitly linked the Privileges and Immunities Clause to the rights of citizenship. Evidence from the ratification debates and contemporaneous legal doctrine indicates that the Framers viewed the meaning of federal citizenship very broadly, and that the rights that adhered to citizenship were considerably broader than those enumerated in the Bill of Rights. The Court in Saenz followed this approach. Emphasizing the fundamental nature of the right to travel, the Court pointed out that "[t]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence." Saenz, 526 U.S. at 506.
232. A number of scholars have argued that the Privileges or Immunities Clause, which directly follows the Citizenship Clause, was intended to incorporate the Bill of Rights and make it enforceable against the States. See, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1089-95(1953); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates the Bill of Rights). But see Raoul Berger, Incorporation of the Bill of Rights: Akhil Amar's Wishing Well, 62 U. CIN. L. REV. 1 (1993) (arguing against Amar's incorporation theory); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) (arguing that the Privileges or Immunities Clause does not incorporate the Bill of Rights because it has no clear meaning); Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1033-34 (1992) ("[T]here is very little basis for the implausible proposition that the states that ratified the Fourteenth Amendment understood that it would 'incorporate' the Bill of Rights, making its restrictions applicable to the states . . . ."). Prior to the Fourteenth Amendment, the Court had ruled that the Bill of Rights was not intended to limit the states in the case of Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). The better approach, however, is to focus on what the Framers understood the term "citizen" to mean, and what rights they intended to be encompassed within that concept, because the Framers explicitly linked the Privileges and Immunities Clause to the rights of citizenship. Evidence from the ratification debates and contemporaneous legal doctrine indicates that the Framers viewed the meaning of federal citizenship very broadly, and that the rights that adhered to citizenship were considerably broader than those enumerated in the Bill of Rights. The Court in Saenz followed this approach. Emphasizing the fundamental nature of the right to travel, the Court pointed out that "[t]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence." Saenz, 526 U.S. at 506.
233. Fox, supra note 169, at 504 (noting that Congress enacted the Freedman's Bureau legislation based on the theory that the federal government should reward the good citizenship of those who were loyal to the Union during the Civil War); Kaczorowski, supra note 74, at 878 (stating that Republicans felt "a general obligation to secure the rights of Americans because they believed that in return for an allegiance to government, citizens were entitled to the protection of the government").
234. Fox, supra note 169, at 504 (noting that Congress enacted the Freedman's Bureau legislation based on the theory that the federal government should reward the good citizenship of those who were loyal to the Union during the Civil War); Kaczorowski, supra note 74, at 878 (stating that Republicans felt "a general obligation to secure the rights of Americans because they believed that in return for an allegiance to government, citizens were entitled to the protection of the government").
235. Smith, supra note 178, at 695.
236. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 654 (Thomas M. Cooley ed., 4th ed. 1873).
237. Dred Scott, 60 U.S. (19 How.) at 403 (stating that the question to be determined by the Court is "[c]an a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?"); id. at 404-05 (stating that freed slaves are not "constituent members of this sovereignty" and "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States"); Smith, supra note 178, at 757-58.
238. The Citizenship Clause of the Fourteenth Amendment constitutionalized the proclamation of the Civil Rights Act of 1866 that blacks were citizens of the United States. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27 (1866). This proclamation itself was intended to carry with it all of the privileges and immunities of national citizenship. See AKHIL REED AMAR, THE BILL OF RIGHTS 195-96 (note) (1988). See CONG. GLOBE, 39th Cong. 1st Sess. 1088, 1193, 1153, 1266, 1757, 1832-33 (1866) (Remarks of Reps. Frederick E. Woodbridge, Russell Thayer and Henry Raymond, Sen. Lyman Trumbull and Rep. William Lawrence).
239. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 119 (1873) (Bradley, J., dissenting) ("It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens. . . . Their very citizenship conferred these privileges, if they did not possess them before.").
240. Farber & Muench, supra note 169, at 251 (describing how the Framers were heavily influenced by vision of equality).
241. It should be noted that the Citizenship Clause had not yet been added to the Fourteenth Amendment a the time that Senator Howard made his proclamation, though it had been proposed as an amendment to the Amendment. CONG. GLOBE, 39th Sess. 2560 (1866). Howard's emphasis on equality of rights pervades the Fourteenth Amendment and extends to the Citizenship Clause, which was later adopted with his support.
242. Farber & Muench, supra note 169, at 277 (stating that the difficult part about interpreting the Fourteenth Amendment is determining which fundamental rights the Framers intended to protect).
243. At the ratification debates, Representative William Lawrence of Ohio stated that "[t]here are certain absolute rights which pertain to every citizen, which are inherent, and of which a State cannot constitutionally deprive him . . . the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property." CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866).
244. Farber & Muench, supra note 169, at 252.
245. Fox, supra note 169, at 503-04 ("For Republicans, fundamental human rights and American citizenship were closely linked, since America was founded on fundamental human rights.").
246. 6 F. Cas. 546 (E.D. Pa. 1823). See CONG. GLOBE, 39th Cong., 1st Sess. 2462, 2765-66 (1866); Farber & Muench, supra note 169, at 272.
247. Corfield, 6 F. Cas. at 551-52.
248. Smith, supra note 178, at 730; see also Farber & Muench, supra note 169, at 236 (discussing the influence of natural law theory on the Framers of the Fourteenth Amendment).
249. Smith, supra note 178, at 730; see also Farber & Muench, supra note 169, at 236 (discussing the influence of natural law theory on the Framers of the Fourteenth Amendment).
250. CONG. GLOBE, 39th Cong., 1st Sess. 1757 (1866).
251. The most recent example of this determination is the Court's opinion in Saenz v. Roe, 526 U.S. 489 (1999).
252. Fox, supra note 169, at 531 (explaining that the Framers saw education as enabling the self-support that was necessary for citizenship); id. at 576 (discussing the importance of education in the Freedman's Bureaus and arguing that the Congress that ratified the Fourteenth Amendment viewed property and education as the foundation of good citizenship); Kaczorowski, supra note 74, at 926 (explaining that right of access to public schools was in the gray area of rights that may have been intended by the Framers); see also Denise C. Morgan, Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. CHI. LEGAL F. 381, 448-53 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see AMY GUTMANN, DEMOCRATIC EDUCATION (1987).
253. Fox, supra note 169, at 531 (explaining that the Framers saw education as enabling the self- support that was necessary for citizenship); id. at 576 (discussing the importance of education in the Freedman's Bureaus and arguing that the Congress that ratified the Fourteenth Amendment viewed property and education as the foundation of good citizenship); Kaczorowski, supra note 74, at 926 (explaining that right of access to public schools was in the gray area of rights that may have been intended by the Framers); see also Denise C. Morgan, Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. CHI. LEGAL F. 381, 448-53 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see AMY GUTMANN, DEMOCRATIC EDUCATION (1987).
254. Fox, supra note 169, at 531 (explaining that the Framers saw education as enabling the self- support that was necessary for citizenship); id. at 576 (discussing the importance of education in the Freedman's Bureaus and arguing that the Congress that ratified the Fourteenth Amendment viewed property and education as the foundation of good citizenship); Kaczorowski, supra note 74, at 926 (explaining that right of access to public schools was in the gray area of rights that may have been intended by the Framers); see also Denise C. Morgan, Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. CHI. LEGAL F. 381, 448-53 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see AMY GUTMANN, DEMOCRATIC EDUCATION (1987).
255. Fox, supra note 169, at 531 (explaining that the Framers saw education as enabling the self- support that was necessary for citizenship); id. at 576 (discussing the importance of education in the Freedman's Bureaus and arguing that the Congress that ratified the Fourteenth Amendment viewed property and education as the foundation of good citizenship); Kaczorowski, supra note 74, at 926 (explaining that right of access to public schools was in the gray area of rights that may have been intended by the Framers); see also Denise C. Morgan, Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. CHI. LEGAL F. 381, 448-53 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see AMY GUTMANN, DEMOCRATIC EDUCATION (1987).
256. Tribe, supra note 10, at 122 (explaining that there is no constitutional right to vote, just to equal access to the vote); AMAR, supra note 190, at 260-61. See also Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (right of suffrage not a Section 1 privilege or immunity).
257. Tribe, supra note 10, at 122 (explaining that there is no constitutional right to vote, just to equal access to the vote); AMAR, supra note 190, at 260-61. See also Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (right of suffrage not a Section 1 privilege or immunity).
258. Kaczorowski, supra note 74, at 931; Smith, supra note 178, at 691. The right to vote was clearly not inherent to one's citizenship, as women did not have the right to vote at the time of the framing of the Fourteenth Amendment, although they were considered citizens by the Framers. Only upon ratification of the Nineteenth Amendment in 1920 did women achieve this right. Further evidence that federal citizenship did not include the right to vote is the fact that former slaves were expressly given the right to vote in a separate constitutional amendment, the Fifteenth Amendment.
259. Kaczorowski, supra note 74, at 931; Smith, supra note 178, at 691. The right to vote was clearly not inherent to one's citizenship, as women did not have the right to vote at the time of the framing of the Fourteenth Amendment, although they were considered citizens by the Framers. Only upon ratification of the Nineteenth Amendment in 1920 did women achieve this right. Further evidence that federal citizenship did not include the right to vote is the fact that former slaves were expressly given the right to vote in a separate constitutional amendment, the Fifteenth Amendment.
260. See AMAR, supra note 190, at 260-61. As Amar explains, the rights of citizenship that the Framers of the Citizenship Clause had in mind were those civil rights that were enjoyed by most white women at the time. These white women were unquestionably considered to be citizens even though they lacked political rights such as the right to vote. Amar points out, "Although these women could not vote, hold office, sit on juries, or serve in militias, they could worship, speak, print, assemble, petition, sue, contract, own property and bring diversity cases in federal courts." Adopting the civil rights model as the model for citizenship rights made it possible for the Framers to avoid granting all the women the right to vote, either through the Fourteenth Amendment, which expressly granted freed (male) slaves the right to vote. Id. at 260-61 (bottom note). Not surprisingly, early women's suffragists were "outraged by Section 2 of the Fourteenth Amendment, which excluded women from the presumptive electorate and, for the first time, put the word male into the Constitution. Id. at 261 (bottom note). Their attempt to argue that the right to vote was a privilege or immunity of citizenship, guaranteed by the Fourteenth Amendment, was rejected by the Court in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).
261. This analysis of the Court's interpretations of citizenship rights is limited to the its determinations of the rights of people who are citizens of the United States. Determining the rights of immigrants, and their eligibility for citizenship, is beyond the scope of this article. But see Linda Bosniak, Universal Citizenship and the Problem of Alienage, 94 NW. U. L. REV. 963 (2000) (criticizing "citizenship" scholars for disregarding issues of immigration law). The author is mindful of the exclusionary effect potentially resulting from the Court's reliance on citizenship as a source of rights. Although aliens are considered to be "persons" protected by the Fourteenth Amendment as a whole, see Yick Wo v. Hopkins, 118 U.S. 356, 368-69 (1886), a court could find that they are excluded from the protection of the Citizenship Clause. See Linda S. Bosniak, Membership, Equality and the Difference that Alienage Makes, 69 N.Y.U.L. REV. 1047, 1087 (1994) (pointing out that the United States laws regarding the protection of the rights of aliens in the United States is "striking in its apparent capriciousness"). The Court has been willing, however, to blur the lines between citizens and non-citizens even in finding individual rights where citizenship was an important factor. For example, the Court emphasized the connection between education and citizenship in the case of Plyler v. Doe, 457 U.S. 202, 230 (1982), even as it ruled in favor of the non-citizen plaintiffs and found that they had a right to state funding of their public education. The Court's ruling in Plyler indicates that citizenship-based rights need not be exclusionary in scope.
262. This analysis of the Court's interpretations of citizenship rights is limited to the its determinations of the rights of people who are citizens of the United States. Determining the rights of immigrants, and their eligibility for citizenship, is beyond the scope of this article. But see Linda Bosniak, Universal Citizenship and the Problem of Alienage, 94 NW. U. L. REV. 963 (2000) (criticizing "citizenship" scholars for disregarding issues of immigration law). The author is mindful of the exclusionary effect potentially resulting from the Court's reliance on citizenship as a source of rights. Although aliens are considered to be "persons" protected by the Fourteenth Amendment as a whole, see Yick Wo v. Hopkins, 118 U.S. 356, 368-69 (1886), a court could find that they are excluded from the protection of the Citizenship Clause. See Linda S. Bosniak, Membership, Equality and the Difference that Alienage Makes, 69 N.Y.U.L. REV. 1047, 1087 (1994) (pointing out that the United States laws regarding the protection of the rights of aliens in the United States is "striking in its apparent capriciousness"). The Court has been willing, however, to blur the lines between citizens and non-citizens even in finding individual rights where citizenship was an important factor. For example, the Court emphasized the connection between education and citizenship in the case of Plyler v. Doe, 457 U.S. 202, 230 (1982), even as it ruled in favor of the non-citizen plaintiffs and found that they had a right to state funding of their public education. The Court's ruling in Plyler indicates that citizenship-based rights need not be exclusionary in scope.
263. See, e.g., Hague v. Committee for Indus. Org., 307 U.S. 496, 513 (1939) (right to discuss national legislation and benefits to accrue therefrom); Terral v. Burke Constr. Co., 257 U.S. 529, 532 (1922) (right to resort to the federal courts in other states); Ex parte Yarbrough, 110 U.S. 651, 662 (1884) (right to vote in congressional election); United States v. Cruikshank, 92 U.S. 542, 552 (1875) (right to petition Congress).
264. Moreover, in three cases the Supreme Court upheld suits against private individuals who interfered with the rights of citizens to participate. See United States v. Guest, 383 U.S. 745, 760 (1966) (sustaining an indictment against private individuals for conspiring to deprive Negro citizens of the right to travel and the right to use public facilities and roads); United States v. Classic, 313 U.S. 299, 323-24 (1941) (stating that the right to choose congressional representatives is secured against actions of individuals and states, because that constitutional right is without restriction or limitations); Yarbrough, 110 U.S. at 662 (upholding an indictment against individual defendants who denied a person the right to vote in a congressional election due to his race).
265. See, e.g., Saenz v. Roe, 526 U.S. 489 (1999); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
266. See, e.g., Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 43 (1867) (explaining that the right to travel stems from the necessity of interstate travel if federal citizens are called to federal service).
267. 26 F. Cas. 79 (S.D. Ala. 1871) (No. 15, 282).
268. See id. at 81-82.
269. Id. at 81.
270. 83 U.S. (16 Wall.) 36 (1872).
271. Id. at 76 (The privileges or immunities of state citizens "embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are . . . those rights [that are] fundamental . . . [and] they have always been held to be the class of rights which the State governments were created to establish and secure.").
272. See supra Part III.A.
273. Aynes, supra note 173, at 627 ("'[E]veryone' agrees [that] the Court [in Slaughter-House] incorrectly interpreted the Privileges or Immunities Clause . . . .").
274. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-10 (1997); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1320-31 (3d ed. 1999); Richard J. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996); see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN CONSTITUTIONAL HISTORY 64, 69 (1972) (describing the Slaughter-House Cases as "one of the most tragically wrong opinions ever given by the Court").
275. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-10 (1997); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1320-31 (3d ed. 1999); Richard J. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996); see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN CONSTITUTIONAL HISTORY 64, 69 (1972) (describing the Slaughter-House Cases as "one of the most tragically wrong opinions ever given by the Court").
276. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-10 (1997); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1320-31 (3d ed. 1999); Richard J. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996); see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN CONSTITUTIONAL HISTORY 64, 69 (1972) (describing the Slaughter-House Cases as "one of the most tragically wrong opinions ever given by the Court").
277. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-10 (1997); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1320-31 (3d ed. 1999); Richard J. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996); see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN CONSTITUTIONAL HISTORY 64, 69 (1972) (describing the Slaughter-House Cases as "one of the most tragically wrong opinions ever given by the Court").
278. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-10 (1997); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1320-31 (3d ed. 1999); Richard J. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996); see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN CONSTITUTIONAL HISTORY 64, 69 (1972) (describing the Slaughter-House Cases as "one of the most tragically wrong opinions ever given by the Court").
279. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 5-10 (1997); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HISTORY, THEORY AND LAW OF THE RECONSTRUCTION AMENDMENTS 216 (1993); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1320-31 (3d ed. 1999); Richard J. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 102-05 (1996); see also Leonard W. Levy, The Fourteenth Amendment and the Bill of Rights, in JUDGMENTS: ESSAYS ON AMERICAN CONSTITUTIONAL HISTORY 64, 69 (1972) (describing the Slaughter-House Cases as "one of the most tragically wrong opinions ever given by the Court").
280. Newsom, supra note 91, at 659.
281. Id. at 661.
282. Id. at 666; see also id. at 699 (maintaining that Justice Miller's opinion was really a rejection of the plaintiffs' attempt to federalize common law claims, not of incorporation of federal rights).
283. Slaughter-House Cases, 83 U.S. 36, 79 (1872).
284. Id. at 79-80 (citing Crandall v. Nevada, 73 U.S. (6 Wall.) 36 (1867)).
285. Significantly, the Court in Saenz cited both the majority and dissenting opinions in the Slaughter-House Cases to support its ruling. Saenz, 526 U.S. at 503-04.
286. The best known such case is Twining v. New Jersey, 211 U.S. 78, 97 (1908), listing as national privileges and immunities the right to travel from state to state, to petition Congress, to vote for national officers, to enter the public lands, the right to be "protected against violence while in the lawful custody of a United States marshal," and "the right to inform the United States authorities of violation of its laws."
287. At times, that protection requires some service by the citizen in return. The Supreme Court, moreover, has long held that the power to raise and support armies is broad and sweeping. Selective Draft Law Cases, 245 U.S. 366 (1918). The Court has further held that the power to classify and conscript manpower for military service is beyond question, and it has ruled that the Constitution makes clear some obligations of citizenship, which include serving the country in time of war and national emergency. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963). In that case, however, the Court overturned the expatriation of two naturalized citizens who refused to report for military service, finding that revoking citizenship was too harsh a penalty even for the failure to perform one's duties as a citizen. Id. at 184-85.
288. See Minor v. Happersett, 88 U.S. 162, 177-78 (1874) (rejecting a woman's attempt to vote in the state of Missouri because state law forbade women from voting and federal citizenship did not include the right to vote); see also Spencer v. Board of Registration, 8 D.C. (1 MacArth.) 169, 177-78 (1873) (denying women the right to vote in D.C. elections and finding that elective franchise is not a natural right); Gougar v. Timberlake, 148 Ind. 38, 46 N.E.
289. U.S. Term Limits, Inc., 514 U.S. at 837 (striking down state-imposed term limits on federal representatives due in part to the fact that those term limits restricted the right of federal citizens to vote for their federal representatives); United States v. Classic, 313 U.S. 299, 329 (1941) (upholding the indictment of state officials and private individuals for conspiring to deprive United States citizens of the right to vote in congressional elections); Ex parte Yarbrough, 110 U.S. 651, 667 (1884) (upholding the constitutionality of an indictment against individuals who had conspired to deprive a person of African descent from voting in Congressional elections).
290. U.S. Term Limits, Inc., 514 U.S. at 842; Classic, 313 U.S. at 314.
291. 83 U.S. (16 Wall.) 130, 139 (1872).
292. Id.
293. Terral v. Burke Constr. Co., 257 U.S. 529, 532 (1922) (finding that "a state may not, in imposing conditions upon the privilege of a . . . corporation's doing business in the state, exact from it a waiver of the exercise of its constitutional right to resort to the federal courts" because that condition violated the constitutional right of citizens of one state to resort to the federal courts in another).
294. See, e.g., Hague v. Committee for Indus. Org., 307 U.S. 496, 513 (1939) (the right to assemble to discuss national legislation and the rights and benefits to accrue to citizens therefrom); United States v. Cruikshank, 92 U.S. 542, 552 (1875) (the right to petition Congress).
295. See, e.g., Saenz, 526 U.S. at 503-04 (citing the Privileges or Immunities Clause as a basis for the right to travel); Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (declining to "ascribe the source of this right to travel interstate to a particular constitutional provision"); Edwards v. California, 314 U.S. 160 (1941) (striking down a California statute that criminalized the entrance of a pauper into the state as violating the right to travel).
296. Guest, 383 U.S. at 760 (sustaining an indictment against private individuals for conspiring to deprive Negro citizens of the right to travel and the right to use public facilities and roads).
297. United States v. Classic, 313 U.S. 299, 329 (1941) (upholding the indictment of state officials and private individuals for conspiring to deprive United States citizens of the right to vote in congressional elections); Ex parte Yarbrough, 110 U.S. 651, 667 (1884) (upholding the constitutionality of an indictment against individuals who had conspired to deprive a person of African descent from voting in congressional elections).
298. See Saenz, 526 U.S. at 504-05.
299. See U.S. Term Limits, Inc., 514 U.S. at 820-21.
300. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self-governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
301. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
302. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
303. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
304. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
305. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
306. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
307. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
308. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
309. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
310. Recently, many constitutional law scholars have considered the role of citizenship to constitutional interpretation. See, e.g., Balkin, supra note 151, at 2343 ("Hierarchies of social status . . . have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self- governance."); Forbath, Equal Citizenship, supra note 144, at 1. The primary focus of these scholars is the Constitution's promise of equal citizenship and the divisions between citizens that prevent the fulfillment of that promise. To break down those divisions, these scholars tend to favor an activist government that intervenes in the status quo to enforce equality norms. The ideal of equal citizenship, which these scholars see as a fundamental principle of our constitutional structure, exists to enable all citizens to participate effectively. Under this principle, every individual is entitled to be treated by organized society as a respected, responsible and participating member. Kenneth L. Karst, The Supreme Court 1976 Term, 91 HARV. L. REV. 1 (1977). These "citizenship" scholars vary in their suggestions of how to address divisions that impede the exercise of citizenship rights. Some scholars advocate the government playing a more active role in dismantling hierarchies when they impede the ability of citizens to participate in the government. For example, Jack Balkin suggests that the democratic ideals behind the Constitution require the dismantling of social hierarchies when the hierarchies contribute to denying citizens the right to vote and participate in the political process. Balkin, supra note 151, at 2343. Others advocate the government proactively creating conditions of equality, including some form of economic security. For example, Kenneth Karst has argued that the disenfranchisement of the under-class due to a combination of race and poverty has effectively denied them their citizenship rights. See Karst, supra, at 18. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) [hereinafter KARST, BELONGING TO AMERICA]. Like Karst, William Forbath believes that some economic equality is necessary for a strong democratic republic. However, Forbath maintains that the subsistence level of income, advocated by Karst and others, is simply not enough to enable citizens to carry out their civic obligations. Forbath, Equal Citizenship, supra note 144, at 12 (arguing that a welfare check alone is not enough to take care of oneself and that social citizenship entails the opportunity to earn a livelihood). According to Forbath, equal citizenship requires more than freedom from desperate conditions; it implicates the right to work and earn a decent living. Id. See also William E. Forbath, Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1790 (1994) [hereinafter Forbath, Rights Talk] (stating that a decent livelihood is necessary "to ensure the material security people need to participate in civic life"). Enforcing the approaches towards citizenship rights that these scholars advocate would require the Court to take a considerably more activist role than the current Court has been willing to play up until now. However, the focus of these scholars on participation and belonging is consistent with both the intent of the Framers of the Citizenship Clause and the Court's approach to citizenship rights in general. Thus, at least on the margins, this jurisprudence of citizenship could impact the Court's future determinations of citizenship rights.
311. See supra Part I.B.
312. See supra notes 44-52 and accompanying text.
313. The Citizenship Clause is enforceable by means of Section 5 of the Fourteenth Amendment, which provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST. amend. XIV, § 5.
314. Kaczorowski, supra note 74, at 867.
315. See supra note 173 and accompanying text.
316. Note, Membership Has Its Privileges and Immunities: Congressional Power to Define and Enforce the Rights of National Citizenship, 102 HARV. L. REV. 1925, 1933 (1989) [hereinafter Note, Membership] (arguing that national citizenship, as a source of non-textual rights, does not have a state action limitation). Even the Slaughter-House Cases, a ruling known for its limited view of federal citizenship, did not limit the rights of federal citizenship to those explicitly listed in the Constitution, but noted that they include rights "which owe their existence to the Federal government, its National character, its Constitution, or its Laws." Slaughter-House Cases, 83 U.S. 36, 79 (1872).
317. Kaczorowski, supra note 74, at 869. See supra Part III.A.
318. Bureau of National Business Affairs, The Civil Rights Act of 1964: Text, Analysis, Legislative History: What It Means to Employers, Businessmen, Unions, Employees, Minority Groups 80 (Wash. 1964); The Civil Rights Cases, 109 U.S. 3 (1883).
319. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-39 (1968) (upholding the constitutionality of 42 U.S.C. § 1982).
320. See Amar, supra note 184, See also Amar, supra note 178, at 103 ("Congress has broad power to affirm the rights of equal citizens against social structures and forces, even private ones, that threaten a regime of equal citizenship.").
321. See Amar, supra note 184, See also Amar, supra note 178, at 103 ("Congress has broad power to affirm the rights of equal citizens against social structures and forces, even private ones, that threaten a regime of equal citizenship.").
322. Id. at 440.
323. Runyon v. McCrary, 427 U.S. 160 (1976) (upholding the constitutionality of 42 U.S.C. § 1981 as applied to a private, non-sectarian school).
324. Based on similar reasoning, Professor Lawrence Sager has argued that the application of § 13 981 to private activity is a constitutional remedy for the history of "state-sponsored disablement and injustice" towards women in our society that is analogous to the badges and incidents of slavery suffered by slaves and their descendants. See Lawrence G. Sager, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. REV. 150, 153 (2000).
325. See, e.g., Kaczorowski, supra note 74, at 912 (arguing that the Fourteenth Amendment "was an affirmative exercise of constitutional authority, and its framers understood it to be a self-executing guarantee of civil rights").
326. See supra notes 77-78 and accompanying text.
327. Morrison, 120 S. Ct. at 1756 (emphasis added).
328. Amar, supra note 178, at 105 (noting that "the first sentence of the Fourteenth Amendment has no explicit state action enforcement").
329. Kaczorowski, supra note 74, at 912-13.
330. Note, Membership, supra note 246, at 1940; see also Amar, supra note 178, at 103 (arguing that Congress has power to protect the rights of equal citizenship against infringement by private parties). Justice Harlan expressed this view of the Citizenship Clause in his dissent to The Civil Rights Cases, 109 U.S. 3, 47-48 (arguing that the Citizenship Clause "is of a distinctly affirmative character," Harlan opined that the power of Congress to protect the rights of federal citizenship "is not restricted to te enforcement of prohibitions upon state laws or state action").
331. See supra notes 210-23 and accompanying text.
332. Guest, 383 U.S. at 760 (finding that Congress may protect the right to travel against interference by private parties). See also Note, Membership, supra note 246, at 1940. Because of the structural principles implicated by federal citizenship, to determine the enforceability of those rights, it is appropriate to examine the Constitution as a whole, applying Professor Amar's "texturalism, broadly defined" theory to determine the overarching themes of the document. See Amar, supra note 178, at 26, 28-30. See generally Amar, supra note 184, at 748.
333. Guest, 383 U.S. at 760 (finding that Congress may protect the right to travel against interference by private parties). See also Note, Membership, supra note 246, at 1940. Because of the structural principles implicated by federal citizenship, to determine the enforceability of those rights, it is appropriate to examine the Constitution as a whole, applying Professor Amar's "texturalism, broadly defined" theory to determine the overarching themes of the document. See Amar, supra note 178, at 26, 28-30. See generally Amar, supra note 184, at 748.
334. Note, Membership, supra note 246, at 1940.
335. 17 U.S. (4 Wheat.) 316 (1819).
336. Id. at 421 ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
337. Amar, supra note 184, at 825 n.299. See also Engel, supra note 184, at 115, 121.
338. Amar, supra note 184, at 825 n.299. See also Engel, supra note 184, at 115, 121.
339. Prigg v. Pennsylvania, 41 U.S. (16 Pet.). 539, 615 (1842). See Amar, supra note 178, at 69. Congress later enacted the more broadly sweeping Fugitive Slave Act of 1850, upheld by the Court in Ablemon v. Booth, 21 How. 526. Congress relied on Prigg when enacting the later, more comprehensive, law. Amar, supra note 178, at 26, 70.
340. Prigg v. Pennsylvania, 41 U.S. (16 Pet.). 539, 615 (1842). See Amar, supra note 178, at 69. Congress later enacted the more broadly sweeping Fugitive Slave Act of 1850, upheld by the Court in Ablemon v. Booth, 21 How. 526. Congress relied on Prigg when enacting the later, more comprehensive, law. Amar, supra note 178, at 26, 70.
341. Prigg, 41 U.S. at 615 ("If needed, the Constitution guarantees the right . . . the natural inference certainly is, that the national government is clothed with the appropriate authority and function to enforce it.").
342. Engel, supra note 184, at 139.
343. Amar, supra note 178, at 70.
344. 109 U.S. 3 (1883).
345. Id. at 53.
346. Id. ("The national legislature may, without transcending the limits of the constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this Court, for the protection of slavery and the rights of masters of freed slaves.").
347. Amar, supra note 178, at 71.
348. The Civil Rights Cases, 109 U.S. at 46 (Harlan, J., dissenting).
349. Id. at 3, 13.
350. Guest, 383 U.S. at 760; Ex parte Yarbrough, 110 U.S. at 667.
351. Ex parte Yarbrough, 110 U.S. at 667.
352. 383 U.S. 745, 760 (1966). But see Morrison, 529 U.S. at 679-80 (distinguishing Guest on the grounds that some state official was involved in the private activity at issue in Guest).
353. Note, Membership, supra note 246, at 1927; Guest, 383 U.S. at 781-84 (Brennan, J., joined by Warren, C.J., and Douglas, J., concurring in part and dissenting in part); id. at 762 (Clark, J., joined by Black & Fortas, JJ., concurring).
354. See 529 U.S. at 679-80 (rejecting plaintiff's argument that United States v. Guest had overruled the requirement of state action to enforce the Equal Protection Clause and distinguishing Guest on the ground that the complaint in Guest contained express allegations of the involvement of state officials).
355. Guest, 383 U.S. at 757.
356. Id. at 759 n.17.
357. Id.
358. Note, Membership, supra note 246, at 1940.
359. See supra note 29 and accompanying text.
360. See supra notes 184-85 and accompanying text.
361. See MacKinnon, supra note 87, at 152-53 (arguing that § 13981 was an appropriate measure for protecting women, as citizens, from sex discrimination in the form of violence against women).
362. Schafran, supra note 32, at 28 (cited in S. REP. No. 102-197, at 43-44 (1991)).
363. See supra note 204 and accompanying text.
364. These findings were supported by the Attorneys General of a large number of states, who ironically supported the constitutionality of § 13981. See Amicus Brief of States' Attorneys General in Support of Respondent, United States v. Morrison, 120 S. Ct. 1740 (2000) (Nos. 99-5 & 99-29).
365. See supra note 164 and accompanying text.
366. Amar, supra note 178, at 104 (arguing that § 13981 symbolically affirms the concept of "equal national citizenship of all," one of the Constitution's most profound precepts), 108 (arguing that Congress may enact § 13981 pursuant to its powers to enforce the Fourteenth Amendment because it is an "expressive law [ ] affirming women's equal status and citizenship").
367. See Dickerson v. United States, No. 99-5525 (June 26, 2000) (reiterating its ruling in Miranda and emphasizing that Congress cannot overturn a constitutional holding of the Court through legislation); City of Boerne v. Flores, 521 U.S. 507 (1997).
368. See Donald H. Zeigler, The New Activist Court, 45 AM. U.L.REV. 1367 (1996); see also Lopez, 514 U.S. at 567-68 ("To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated . . . and that there never will be a distinction between what is truly national and what is truly local . . . . This we are unwilling to do.") (citations omitted); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311 (1981) ("[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.") (Rehnquist, J., concurring). Moreover, from the time that the Violence Against Women Act was proposed in Congress, Chief Justice Rehnquist, the author of the Court's opinion in Morrison, was outspoken in his opposition to the civil rights provision at issue in Morrison. Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction and the Federal Courts, 66 N.Y.U.L. REV. 1682, 1688 (1991). Thus, it is highly unlikely that he would change his mind.
369. See Donald H. Zeigler, The New Activist Court, 45 AM. U.L.REV. 1367 (1996); see also Lopez, 514 U.S. at 567-68 ("To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated . . . and that there never will be a distinction between what is truly national and what is truly local . . . . This we are unwilling to do.") (citations omitted); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311 (1981) ("[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.") (Rehnquist, J., concurring). Moreover, from the time that the Violence Against Women Act was proposed in Congress, Chief Justice Rehnquist, the author of the Court's opinion in Morrison, was outspoken in his opposition to the civil rights provision at issue in Morrison. Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction and the Federal Courts, 66 N.Y.U.L. REV. 1682, 1688 (1991). Thus, it is highly unlikely that he would change his mind.
370. Other civil rights provisions recently enacted by Congress may also fit into the citizenship model. For example, the Americans with Disabilities Act, 42 U.S.C. § 12112 (1994), enacted by Congress in 1990, requires private parties to provide access to public facilities and employment opportunities to people with disabilities, enabling them to participate as active citizens. Because access to government facilities is central to the rights of federal citizenship, the provisions of the act requiring access to state facilities should be enforceable against the states. The Court will decide this issue next year in University of Ala. Bd. of Trustees v. Garrett, 99-1240, cert.granted, 120 S. Ct. 1669 (Apr. 17, 2000).
371. See supra notes 102-04 and accompanying text.
372. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996). The Act intended to give flexibility to the states in enforcing the new welfare program, known as Transitional Assistance to Needy Families ("TANF"). The rhetoric of federalism was often cited in support of the Act. See Sheryll D. Cashin, Federalism, Welfare Reform, and the Minority Poor: Accounting for the Tyranny of State Majorities, 99 COLUM. L. REV. 552, 553 (1999). Some states, including Ohio and California, have gone even further with localizing control over benefits, and have given county governments discretion over such issues as whether to grant exceptions. States are still required to meet minimal guidelines, including the five-year cap, but can choose to impose a lifetime cap of shorter than five years. Many states and localities have so chosen. See 42 U.S.C. § 608(a)(7)(C) (2000). For example, the states of California and Idaho have imposed a two-year lifetime limit and the states of Ohio and Utah have imposed a three-year lifetime limit on the receipt of TANF benefits. See Office of Family Assistance Home Page (Nov. 6, 2000), available at http://www.acf.dhhs. gov/programs/ofa/ (last modified Nov. 1, 2000).
373. The federal government appears to have accepted the responsibility of insuring the survival of its citizens statutorily in the area of providing medical care. The Federal Medicaid program covers the expense of emergency medical service for all eligible patients, regardless of whether they were Medicaid recipients at the time that they sought the emergency assistance. Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2000). There are minimally mandated federal health care provisions such as The Emergency Medical Treatment and Active Labor Act (EMTALA). This statute was enhanced in response to widespread patient dumping. Id. § 1395dd. It required that any hospital that accepts Medicare payments and that operates an emergency room undertake "an appropriate medical screening examination" of individuals who present themselves to the hospital's emergency room to determine whether that individual has an emergency medical condition. Id. § 1395dd. If so, the hospital is required to stabilize the individual before effectuating a transfer. Id. § 1395dd.
374. KARST, BELONGING TO AMERICA, supra note 240, at 18. But see Forbath, Equal Citizenship, supra note 144, at 18 (arguing that subsistence benefits are not sufficient to enable citizens to participate effectively in the polity). This argument is particularly timely today, as inequalities of wealth are widening. A core group of the chronic underclass that is increasingly disenfranchised from society at large is more pronounced, threatening the integrity of the "common political destiny that, in constitutional principle, binds Americans together." See Forbath, Rights Talk, supra note 240, at 1784 (maintaining that now is a time of crisis and flux); KARST, BELONGING TO AMERICA, supra note 240, at 4-6 (noting that the poor are increasingly physically concentrated in the poorest urban neighborhoods and excluded from the suburbs); id. at 15 ("The ghetto has become the site of a new culture of isolation, not just isolation of blacks from whites, but the isolation of middle class blacks from the poorest and most dependent blacks."); id. at 17 (explaining that poverty causes marginalization and highlighting the danger of a 'virtually permanent membership in a marginalized group defined by race"); see also Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 8-12 (1987) (arguing that although the level of poverty in general in this country is lower than in the past, the level of chronic poverty has increased and has become increasingly concentrated).
375. KARST, BELONGING TO AMERICA, supra note 240, at 18. But see Forbath, Equal Citizenship, supra note 144, at 18 (arguing that subsistence benefits are not sufficient to enable citizens to participate effectively in the polity). This argument is particularly timely today, as inequalities of wealth are widening. A core group of the chronic underclass that is increasingly disenfranchised from society at large is more pronounced, threatening the integrity of the "common political destiny that, in constitutional principle, binds Americans together." See Forbath, Rights Talk, supra note 240, at 1784 (maintaining that now is a time of crisis and flux); KARST, BELONGING TO AMERICA, supra note 240, at 4-6 (noting that the poor are increasingly physically concentrated in the poorest urban neighborhoods and excluded from the suburbs); id. at 15 ("The ghetto has become the site of a new culture of isolation, not just isolation of blacks from whites, but the isolation of middle class blacks from the poorest and most dependent blacks."); id. at 17 (explaining that poverty causes marginalization and highlighting the danger of a 'virtually permanent membership in a marginalized group defined by race"); see also Peter B. Edelman, The Next Century of Our
376. KARST, BELONGING TO AMERICA, supra note 240, at 18. But see Forbath, Equal Citizenship, supra note 144, at 18 (arguing that subsistence benefits are not sufficient to enable citizens to participate effectively in the polity). This argument is particularly timely today, as inequalities of wealth are widening. A core group of the chronic underclass that is increasingly disenfranchised from society at large is more pronounced, threatening the integrity of the "common political destiny that, in constitutional principle, binds Americans together." See Forbath, Rights Talk, supra note 240, at 1784 (maintaining that now is a time of crisis and flux); KARST, BELONGING TO AMERICA, supra note 240, at 4-6 (noting that the poor are increasingly physically concentrated in the poorest urban neighborhoods and excluded from the suburbs); id. at 15 ("The ghetto has become the site of a new culture of isolation, not just isolation of blacks from whites, but the isolation of middle class blacks from the poorest and most dependent blacks."); id. at 17 (explaining that poverty causes marginalization and highlighting the danger of a 'virtually permanent membership in a marginalized group defined by race"); see also Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 8-12 (1987) (arguing that although the level of poverty in general in this country is lower than in the past, the level of chronic poverty has increased and has become increasingly concentrated).
377. KARST, BELONGING TO AMERICA, supra note 240, at 18. But see Forbath, Equal Citizenship, supra note 144, at 18 (arguing that subsistence benefits are not sufficient to enable citizens to participate effectively in the polity). This argument is particularly timely today, as inequalities of wealth are widening. A core group of the chronic underclass that is increasingly disenfranchised from society at large is more pronounced, threatening the integrity of the "common political destiny that, in constitutional principle, binds Americans together." See Forbath, Rights Talk, supra note 240, at 1784 (maintaining that now is a time of crisis and flux); KARST, BELONGING TO AMERICA, supra note 240, at 4-6 (noting that the poor are increasingly physically concentrated in the poorest urban neighborhoods and excluded from the suburbs); id. at 15 ("The ghetto has become the site of a new culture of isolation, not just isolation of blacks from whites, but the isolation of middle class blacks from the poorest and most dependent blacks."); id. at 17 (explaining that poverty causes marginalization and highlighting the danger of a 'virtually permanent membership in a marginalized group defined by race"); see also Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 8-12 (1987) (arguing that although the level of poverty in general in this country is lower than in the past, the level of chronic poverty has increased and has become increasingly concentrated).
378. KARST, BELONGING TO AMERICA, supra note 240, at 18. But see Forbath, Equal Citizenship, supra note 144, at 18 (arguing that subsistence benefits are not sufficient to enable citizens to participate effectively in the polity). This argument is particularly timely today, as inequalities of wealth are widening. A core group of the chronic underclass that is increasingly disenfranchised from society at large is more pronounced, threatening the integrity of the "common political destiny that, in constitutional principle, binds Americans together." See Forbath, Rights Talk, supra note 240, at 1784 (maintaining that now is a time of crisis and flux); KARST, BELONGING TO AMERICA, supra note 240, at 4-6 (noting that the poor are increasingly physically concentrated in the poorest urban neighborhoods and excluded from the suburbs); id. at 15 ("The ghetto has become the site of a new culture of isolation, not just isolation of blacks from whites, but the isolation of middle class blacks from the poorest and most dependent blacks."); id. at 17 (explaining that poverty causes marginalization and highlighting the danger of a 'virtually permanent membership in a marginalized group defined by race"); see also Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 8-12 (1987) (arguing that although the level of poverty in general in this country is lower than in the past, the level of chronic poverty has increased and has become increasingly concentrated).
379. Many scholars have sought to identify a constitutional right to education. See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550, 579-626 (1992); Betsy Levin, The Courts, Congress and Educational Adequacy: The Equal Protection Predicament, 39 MD. L. REV. 187, 253-63 (1979); Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 50 (1969); Denise C. Morgan, What Is Left to Argue in Desegregation Law?: The Right to Minimally Adequate Education, 8 HARV. BLACKLETTER L.J. 99, 124-26 (1991); Penelope A. Preovolos, Rodriguez Revisited: Federalism, Meaningful Access and the Right to Adequate Education, 20 SANTA CLARA L. REV. 75, 120 (1980).
380. Many scholars have sought to identify a constitutional right to education. See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550, 579-626 (1992); Betsy Levin, The Courts, Congress and Educational Adequacy: The Equal Protection Predicament, 39 MD. L. REV. 187, 253-63 (1979); Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 50 (1969); Denise C. Morgan, What Is Left to Argue in Desegregation Law?: The Right to Minimally Adequate Education, 8 HARV. BLACKLETTER L.J. 99, 124-26 (1991); Penelope A. Preovolos, Rodriguez Revisited: Federalism, Meaningful Access and the Right to Adequate Education, 20 SANTA CLARA L. REV. 75, 120 (1980).
381. Many scholars have sought to identify a constitutional right to education. See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550, 579-626 (1992); Betsy Levin, The Courts, Congress and Educational Adequacy: The Equal Protection Predicament, 39 MD. L. REV. 187, 253-63 (1979); Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 50 (1969); Denise C. Morgan, What Is Left to Argue in Desegregation Law?: The Right to Minimally Adequate Education, 8 HARV. BLACKLETTER L.J. 99, 124-26 (1991); Penelope A. Preovolos, Rodriguez Revisited: Federalism, Meaningful Access and the Right to Adequate Education, 20 SANTA CLARA L. REV. 75, 120 (1980).
382. Many scholars have sought to identify a constitutional right to education. See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550, 579-626 (1992); Betsy Levin, The Courts, Congress and Educational Adequacy: The Equal Protection Predicament, 39 MD. L. REV. 187, 253-63 (1979); Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 50 (1969); Denise C. Morgan, What Is Left to Argue in Desegregation Law?: The Right to Minimally Adequate Education, 8 HARV. BLACKLETTER L.J. 99, 124-26 (1991); Penelope A. Preovolos, Rodriguez Revisited: Federalism, Meaningful Access and the Right to Adequate Education, 20 SANTA CLARA L. REV. 75, 120 (1980).
383. Many scholars have sought to identify a constitutional right to education. See, e.g., Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550, 579-626 (1992); Betsy Levin, The Courts, Congress and Educational Adequacy: The Equal Protection Predicament, 39 MD. L. REV. 187, 253-63 (1979); Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 50 (1969); Denise C. Morgan, What Is Left to Argue in Desegregation Law?: The Right to Minimally Adequate Education, 8 HARV. BLACKLETTER L.J. 99, 124-26 (1991); Penelope A. Preovolos, Rodriguez Revisited: Federalism, Meaningful Access and the Right to Adequate Education, 20 SANTA CLARA L. REV. 75, 120 (1980).
384. Fora list of such cases, see Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307 (1991); Michael A. Rebell, Fiscal Equity in Education: Deconstructing the Reigning Myths and Facing Reality, 21 N.Y.U. REV. L. & SOC. CHANGE 691 (1994).
385. Fora list of such cases, see Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307 (1991); Michael A. Rebell, Fiscal Equity in Education: Deconstructing the Reigning Myths and Facing Reality, 21 N.Y.U. REV. L. & SOC. CHANGE 691 (1994).
386. See, e.g., Serrano v. Priest, 5 Cal. 3d 584 (Cal. 1971).
387. Fox, supra note 169, at 576 (explaining that the Framers saw education as enabling the self-support that was necessary for citizenship); see also Morgan, supra note 203 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see GUTMANN, supra note 203. Although public education was not the norm at the time of Reconstruction, the right of equal access to public school when it was provided was in the gray area of rights intended by the Framers because of its link to citizenship. See Kaczorowski, supra note 74, at 926.
388. Fox, supra note 169, at 576 (explaining that the Framers saw education as enabling the self- support that was necessary for citizenship); see also Morgan, supra note 203 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see GUTMANN, supra note 203. Although public education was not the norm at the time of Reconstruction, the right of equal access to public school when it was provided was in the gray area of rights intended by the Framers because of its link to citizenship. See Kaczorowski, supra note 74, at 926.
389. Fox, supra note 169, at 576 (explaining that the Framers saw education as enabling the self- support that was necessary for citizenship); see also Morgan, supra note 203 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see GUTMANN, supra note 203. Although public education was not the norm at the time of Reconstruction, the right of equal access to public school when it was provided was in the gray area of rights intended by the Framers because of its link to citizenship. See Kaczorowski, supra note 74, at 926.
390. Fox, supra note 169, at 576 (explaining that the Framers saw education as enabling the self- support that was necessary for citizenship); see also Morgan, supra note 203 (discussing the traditional link between equality and democratic education). For a good general discussion of the democratizing role of public education, see GUTMANN, supra note 203. Although public education was not the norm at the time of Reconstruction, the right of equal access to public school when it was provided was in the gray area of rights intended by the Framers because of its link to citizenship. See Kaczorowski, supra note 74, at 926.
391. See Morgan, supra note 300, at 276-78.
392. Dandridge v. Williams, 397 U.S. 471, 487 (1970); see also Wyman v. James, 400 U.S. 309, 319 (1971) (analogizing welfare benefits to private charity in holding that welfare recipients had no right to refuse access to case workers investigating their homes unless they forfeited their benefits).
393. The strongest argument that subsistence benefits fit into the structural nature of citizenship is that benefits are necessary to enable recipients to participate in the political realm because their energies are otherwise concentrated on survival. This argument is problematic in that poor people are already allowed to vote and are in fact encouraged to vote by the recent federal "motor-voter" act, which allows for voter registration in welfare offices. National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-3, 5(2) (West 1994) (designating driver's license bureaus and welfare offices as voter registration sites).
394. 411 U.S. 1, 35 (1973).
395. Papasan v. Allain, 478 U.S. 265, 284 (1986) (describing Rodriguez as reserving the question of whether "there is a constitutional right to a minimal level of free public education"); Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 1332 (1980) (same).
396. 347 U.S. 483 (1954).
397. In Brown, the Court pointed out that education is "the very foundation of good citizenship." 347 U.S. at 493. See also Kaczorowski supra note 74, at 927 (arguing that the Court's ruling in Brown, which found the segregation of public schools to violate the Equal Protection Clause, is justified because of the importance of education to citizenship). Indeed, the Plyler Court cited the Brown Court's emphasis on education as "the very foundation of good citizenship" as essential to its ruling that the state of Texas could not refuse to fund the education of children of illegal immigrants. Plyler v. Doe, 457 U.S. 202, 223 (1982). The Court stated, [t]oday, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Id. at 222-23 (citingBrown v. Bd. of Educ., 347 U.S. at 493).
398. The Court's ruling in Plyler indicates that, despite Rodriguez, the Court might be favorably disposed to a citizenship-based claim for equity in school funding.
399. See Senator Trumbull, CONG. GLOBE, 39th Cong., 1st Sess. 1757 (1866) (emphasis added).