The Cruelty of “Quiet Seclusion”

The right to ‘establish a home’ is an essential part of the liberty guaranteed by the Fourteenth Amendment.

Vill. of Belle Terre v. Boraas, 416 U.S. 1, 15 (1974) (Marshall, J., dissenting) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring)).

• Previously In This Series

  1 | The Right to Inherit, Purchase, Lease, Sell, Hold, and Convey a Home

  2 | The Original Meaning of the Fourteenth Amendment

  3 | The Exile of Privileges or Immunities

  4 | When Due Process Is “Fairly Debatable”

  5 | We All Deserve Equal Protection

I’m living on airbnb again. It’s cheaper than renting, and new places are interesting. Single-room occupancy (or “SRO”) rentals were common in American history, until the Supreme Court made it OK to ban them 50 years ago. The term “family,” as in “single-family zoning,” is now specially defined in most zoning ordinances, usually to outlaw more than 2–3 unrelated people per apartment.

Look it up in your local zoning ordinance. Outside of New York, New Jersey, California, Michigan—and arguably outside Colorado, Maryland, and Ohio—it’s (for now) constitutional for your local government to define who may live together as a “family.” Contra City of White Plains v. Ferraioli, 313 N.E.3d 756, 758–59 (N.Y. 1974); State v. Baker, 405 A.2d 368, 375 (N.J. 1979); City of Santa Barbara v. Adamson, 610 P.2d 436, 440–42 (Cal. 1980); Charter Twp. of Delta v. Dinolfo, 351 N.W.2d 831, 841 (Mich. 1984); but see Zavala v. City & Cnty. of Denver, 759 P.2d 664, 669 (Colo. 1988); Kirsch v. Prince George’s Cnty., 626 A.2d 372, 380–81 (Md. 1993); Yoder v. City of Bowling Green, No. 3:1 CV 2321, 2019 WL 415254, at * 5 n.7 (N.D. Ohio Feb. 1, 2019).

Group housing matters. If land-use law were abolished overnight and it were legal to build mid-rises anywhere, it would still take years for the housing shortage to end. People’s lives change faster than that. Neither is this the first housing shortage in American history—the 1920s had a housing shortage too—and “[t]he major way in which households hit by the Depression got by was doubling up.” Jacobs, Dark Age Ahead 140 (2004). What’s happened before will happen again. Let’s explore why the old new way to provide cheap housing is against the law in most of America.

JUSTICE DOUGLAS’S “FAMILY VALUES”

Recall, from our previous post, that the Supreme Court’s equal protection doctrine was shaped for the better by Justice Thurgood Marshall (1967–91), and for the worse by Justice William Douglas (1939–75).

• The Anti-Hero

  “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice…. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.” Posner, The Anti-Hero, in The New Republic (Feb. 24 2003).

Justice Douglas wrote some howlers during his career. He wrote that federal judges should make up false facts to uphold statutory classifications. See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487–88 (1955). He turned the astronomy word “penumbra” into a confusing legalism about the constitutional right to privacy. Compare Griswold, 381 U.S. at 483–85 (majority opinion), with id. at 486–99 (Goldberg, J., concurring) (better answer: the Ninth Amendment). And in his last year on the Court before a stroke forced his retirement, Justice Douglas authored SCOTUS’s stupidest NIMBY opinion.

• The Opinion Below

  It was my 2L summer roommate (2013) who taught me that to really learn a Supreme Court opinion, one should read the opinion below. But “official” PDFs of federal appellate precedents are copyrighted, or some nonsense that a better government might see fit to publish online for public access. Try your local law library, and a law librarian or a good research attorney can help you look up our non-SCOTUS citations. It’s good for your brain to read law in print format.

  With that, we commend Boraas v. Village of Belle Terre, 476 F.2d 806 (2d Cir. 1973), rev’d, 416 U.S. 1 (1974).

Belle Terre was decided at the onset of SCOTUS’s second zoning fever, in the mid-1970s (its first zoning fever, again, was in the 1920s). A group of SUNY–Stony Brook graduate students, together with their mom-and-pop landlords, were cited by the fancypants Village of Belle Terre, New York, for renting a home together. The village conceded that the housemates had all “behaved in a responsible manner, and no immoral conduct on their part [wa]s suggested.” 476 F.2d at 809. No matter, wrote Justice Douglas: according to his opinion for the Court, “family values, youth values, and the blessings of quiet seclusion” constitutionally justify local restrictions on who may live together. 416 U.S. at 9.

It’s a cruel holding. People decide to room together because there aren’t enough homes to live in, and there aren’t enough homes to live in because local government zoning restrictions make it illegal to build more. Under Belle Terre, the federal courts will neither protect people from an artificial housing shortage nor allow people to protect themselves.

JUSTICE MARSHALL’S FAMILY VALUES

The best opinion in Belle Terre was Justice Marshall’s dissent. See 416 U.S. at 12–20 (Marshall, J., dissenting).

“The choice of household companions—of whether a person’s ‘intellectual and emotional needs’ are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind of quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution.”

Id. at 16. Marshall’s view prevailed, sort of, three years later in Moore v. City of East Cleveland, 431 U.S. 494, 498 (1977) (plurality opinion). In Moore, East Cleveland jailed a grandmother for taking in her grandson. A four-justice plurality, including Justice Marshall, limited Belle Terre so that all “blood, adoption, or marriage” relationships enjoy a constitutional right to “establish a home” together. Justice Stevens would have struck the ordinance down under Euclid and Nectow. Id. at 513-21 (Stevens, J., concurring in the judgment). Justice Brennan, joined by Marshall, would have worded the plurality opinion more strongly:

“The Constitution cannot be interpreted … to tolerate the imposition by government upon the rest of us of white suburbia’s preference in patterns of family living.”

Id. at 508 (Brennan, J., concurring). Credit to Justices Brennan and Marshall for both understanding how “brutal economic necessity” can require “compelled sharing of a household” for many more people than some rich people think. Id. Alas, two Justices aren’t five. Belle Terre turns fifty on April Fool’s Day, when tens of thousands of Americans will be sleeping in their cars.

* * *

Belle Terre was the first in a 1970s terrible triplet of SCOTUS cases about zoning. Our next post will cover the other two cases in that triplet; then, we’ll wrap up the series with three posts on the Fair Housing Act of 1968.

When Due Process Is “Fairly Debatable”

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .

U.S. Const., amend. XIV, § 1.

• Previously in This Series

  1 | The Right to Inherit, Purchase, Lease, Sell, Hold, and Convey a Home

  2 | The Original Meaning of the Fourteenth Amendment

  3 | The Exile of Privileges or Immunities

“Due process.” If you’re an American with a pulse and you’ve ever read, heard, said, or written anything about constitutional law, there’s a good chance that “due process” figured somewhere in your experience. But what does “due process” mean?

This post covers an awful lot of ground, about which entire courses are taught in law school. To revisit our last post, “due process” was originally a requirement of the Fifth Amendment, which only applied to the federal government. The Fourteenth Amendment (1868) made “due process” applicable to the States. That’s had a ton of consequences. Let’s go.

TWO KINDS OF “DUE PROCESS”

American law recognizes two kinds of “due process,” and yes, that’s confusing. There’s “procedural due process,” a redundant but honest term. Then there’s “substantive due process,” which, well…

Let’s start with “procedural” due process, “which sounds redundant.” Braley v. Pontiac, 906 F.3d 220, 228 (6th Cir. 1990) (Nelson, J., concurring). “The fundamental requirement of [procedural] due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’” before the government “deprive[s]” one of “life, liberty, or property.” U.S. Const., amend. XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Think of procedural due process as a “no shenanigans” rule. Your correspondent has helped win a few precedents against procedural shenanigans: Platt v. Moore, 15 F.4th 895 (9th Cir. 2021) (forfeiture statute violates due process); State v. Johnson (In re $39,500), 521 P.3d 621 (Ariz. Ct. App. 2022) (forfeiture judgment violates due process); City of Charlestown v. Charlestown Pleasant Ridge Neighborhood Ass’n, 111 N.E.3d 199 (Ind. Ct. App. 2018) (code enforcement must follow state statute). Procedural due process violations aren’t uncommon, and it’s often possible to get a favorable judgment when the government refuses to back down. But procedure isn’t substance, and procedural precedents aren’t the most portable.

Enter “substantive” due process, an “oxymoron” that one author memorably skewered as “sort of like ‘green pastel redness.’” Ely, Democracy & Distrust 18 (1980); Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 Mich. L. Rev. 1517, 1531 (2008). The truth is that this doctrine compensates for the exile of privileges or immunities. Having written fundamental rights out of the Fourteenth Amendment in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court had to make up for its error eventually.

SOME RIGHTS GET MORE “PROCESS” THAN OTHERS (SCOTUS SAYS)

The Bill of Rights didn’t use to apply to state and local governments—the Fourteenth Amendment (and specifically, SCOTUS says, the Due Process Clause) changed that. In Timbs v. Indiana, 586 U.S. __ (slip op.) (2019), the Notorious R.B.G. wrote for a basically unanimous Court that “the Excessive Fines Clause [of the Eighth Amendment] is … incorporated by the Due Process Clause of the Fourteenth Amendment.” Timbs was the most recent in a long line of cases outlining a doctrine called “selective incorporation.” We don’t have space to cover it all here, so to try anyway, the Court spent more than a century piecemealing the Bill of Rights into force against state and local governments. See Timbs (Eighth Amendment—excessive fines); McDonald v. City of Chicago, 561 U.S. 742 (2009) (Second Amendment—right to bear arms); Schilb v. Kuebel, 404 U.S. 357 (1971) (Eighth Amendment—excessive bail); Benton v. Maryland, 395 U.S. 784 (1969) (Fifth Amendment—double jeopardy); Duncan v. Louisiana, 391 U.S. 145 (1968) (Sixth Amendment—trial by jury in criminal cases); Washington v. Texas, 388 U.S. 14 (1967) (Sixth Amendment—compulsory process); Klopfer v. North Carolina, 386 U.S. 213 (1967) (Sixth Amendment—speedy trial); Pointer v. Texas, 380 U.S. 400 (1965) (Sixth Amendment—right to confront adverse witness); Malloy v. Hogan, 378 U.S. 1 (1964) (Fourth Amendment—warrant requirement); Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment—assistance of counsel); Robinson v. California, 370 U.S. 660 (1962) (Eighth Amendment—cruel and unusual punishment); Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment—exclusionary rule); Wolf v. Colorado, 338 U.S. 25 (1949) (Fourth Amendment—unreasonable searches and seizures); In re Oliver, 333 U.S. 257 (1948) (Sixth Amendment—right to public trial); Everson v. Bd. of Educ., 330 U.S. 1 (1947) (First Amendment—establishment of religion); Cantwell v. Connecticut, 310 U.S. 296 (1940) (First Amendment—free exercise of religion); De Jonge v. Oregon, 299 U.S. 353 (1937) (First Amendment—freedom of assembly); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) (First Amendment—free press); Gitlow v. New York, 268 U.S. 652 (1925) (First Amendment—free speech); Chi., Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897) (Fifth Amendment—just compensation for takings). 

some kind words for Clarence Thomas: he’s right about the Privileges or Immunities Clause.

Recall from before that in United States v. Cruikshank, 92 U.S. 542, 551 (1876), SCOTUS had held that the “right of the people peaceably to assemble,” although the literal text of the First Amendment, was “not … a right granted to the people by the Constitution” against state and local governments. (That’s bananas.) Thanks to the selective incorporation doctrine that last came up in Timbs, see supra, it’s now federal law that the First Amendment does apply everywhere within the country because of the Due Process Clause of the Fourteenth Amendment. But see also Timbs (Thomas, J., concurring in the judgment) (“I would hold that the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”).

The selective incorporation of (most of) the Bill of Rights is the main form of “substantive” due process, but it’s not the only form. Notwithstanding Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (slip op.) (2022), there really are a lot of “unenumerated” rights that don’t show up in the Constitution’s literal text—that’s the entire point of the Ninth Amendment, but we don’t have space for that here. For housing’s sake, let’s stipulate that unenumerated rights include the right to inherit, purchase, lease, sell, hold, and convey a home. Taking it all together, “substantive” due process refers to rights that the government simply shouldn’t touch: free speech, being with family, that sort of thing. And this brings us to one of the most consequential dichotomies in Supreme Court caselaw:

• FOOTNOTE FOUR, aka “TIERED SCRUTINY”

  In what many recognize as “the most important footnote in constitutional law,” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), the Supreme Court suggested that some rights should get better judicial treatment than others. This doctrine has long since congealed.

  Carolene Products upheld a ban on milk substitutes that was enacted in the Depression to drive demand for dairy. SCOTUS applied something called “rational basis” review, which is in essence a “presumption of constitutionality.” Id. at 152 & n.4. Most laws are subject to rational basis review, and the government almost always wins.

  Footnote Four intimated that the Bill of Rights, political-process rights, and the rights of “discrete and insular minorities” might merit “more searching judicial inquiry.” Id. at 152 n.4. That’s eventually what happened, and what the federal courts now call “fundamental” rights are subject to something called “strict scrutiny.” Under strict scrutiny, the government usually loses.

  Zoning, since the ‘70s, draws an especially deferential version of rational-basis review. We’re not there yet, but we’ll get there two posts forward.

The “rational basis test” is what Justice Alito used to uphold Mississippi’s abortion restriction in Dobbs (slip op. at 77–78). It’s about as old as zoning, and it was from the very beginning about sexism.

YOU’VE READ ABOUT EUCLID . . .

Before Herbert Hoover became synonymous with homeless encampments—and before he won the Presidency—he became famous on the force of his zeal for zoning. Herbert Hoover was an ambitious man. As Secretary of Commerce (whom President Calvin Coolidge would come to regret), Hoover wrote the “standard” zoning act (1922–26) to evade Buchanan v. Warley, 245 U.S. 60 (1917).

dam, Hoover—you can’t legislate 15 million acre-feet/year against nature.

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), which upheld zoning as a general (not specific) matter, came down as the “roaring ‘20s” were metastasizing. History records an economic boom that favored America, deluding its politicians with power. Country-club types began zoning as if cities could be designed like golf courses. Euclid upheld zoning, or at least the Village of Euclid’s zoning ordinance, and laid down a test that still stands today:

[I]t must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.

Euclid, 272 U.S. at 395. This is now understood as “rational basis” review, though some (state) courts are starting to recall that “substantial” means something stronger than a laugh test. In another famous passage, the Euclid Court explained its reasons for allowing a presumption of constitutionality:

A nuisance may be merely a right thing in the wrong place—like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.

Euclid, 272 U.S. at 388. The 1920s, by the way, were also the first decade that women could vote. You bet the men on SCOTUS were in their feelings.

. . . “FAIRLY DEBATABLE” WAS BORN OUT OF SEXISM . . .

Euclid’s “fairly debatable” standard is now ubiquitous. It pervades the caselaw on challenging zoning, and it gives courts permission to dismiss those challenges. What’s underappreciated is how the “fairly debatable” standard originates from a sexist opinion upholding a criminal conviction for employing a woman at night. See Radice v. New York, 264 U.S. 292, 294 (1924); Jordan, “Horror of a Woman”: Myra Bradwell, the 14th Amendment, and the Gendered Origins of Sociological Jurisprudence, 42 Akron L. Rev. 1201, 1241 n.273 (2009) (noting the Court’s “insincere[]” treatment of women’s issues in the 1920s); see also Buck v. Bell, 274 U.S. 200, 205 (1927) (upholding forced sterilization of—these were Justice Oliver Wendell Holmes’s words—“a feeble minded white woman” who’d had “an illegitimate feeble minded child”). New York really made it a crime for women to work night jobs in cities, and that’s the first law SCOTUS ever upheld—in the wake of the Nineteenth Amendment, no less—as “fairly debatable”:

Adopting the “fairly debatable” standard from Radice, the Supreme Court decided a flurry of zoning cases in the late 1920s, starting with Euclid. 272 U.S. at 388 (citing Radice); see Zahn v. Bd. of Pub. Works, 274 U.S. 325, 328 (1927) (upholding Los Angeles’s five-zone ordinance) (Dear Library of Congress: please append Zahn’s last page!); Gorieb v. Fox, 274 U.S. 603 (1927) (upholding Roanoke, Virginia’s setback requirements). All of these cases, whether upholding zoning or sexism, found that “due process” had been afforded. Gorieb, 274 U.S. at 608; Zahn, 274 U.S. at 327; Bell, 274 U.S. at 207; Euclid, 272 U.S. at 397; Radice, 264 U.S. at 293.

. . . DO YOU KNOW ABOUT NECTOW & ROBERGE?

Euclid has some silver linings. Unlike most Supreme Court cases, Euclid was argued twice. 272 U.S. at 365. Before the second argument, Justice Sutherland—who authored the eventual opinion in Euclid—“was writing an opinion for the majority” that would have “h[e]ld[] the zoning ordinance unconstitutional.” McCormack, A Law Clerk’s Recollections, 46 Colum. L. Rev. 710, 712 (1946). It was Justice Stone who convinced Sutherland to order the reargument that “changed [the Court’s] mind.” Id. If Euclid seems like canon today, it was actually a close call at the time.

Euclid also doesn’t mean what most people think it means. It does not hold that all zoning is constitutional. Sutherland’s final opinion was explicit on this point:

[W]hen … the provisions set forth in [a zoning] ordinance … come to be concretely applied to particular premises … or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable.

Euclid, 272 U.S. at 395. Translated to modern judicial parlance, Euclid simply holds that facial challenges to zoning ordinances (presumptively) shouldn’t succeed. But Euclid also invited as-applied challenges, and that’s exactly how the Court struck down a zoning ordinance two years later. See Nectow v. City of Cambridge, 277 U.S. 183 (1928). The key to Euclid is to understand Nectow. Nectow may have been forgotten, but it’s equally valid law. We hope to bring Nectow back.

The last zoning case that the Court decided in the 1920s, on the heels of Hoover’s election to the Presidency, reinforced the Court’s first YIMBY law: no ordinance shall delegate to nimbys the “authority—uncontrolled by any standard or rule prescribed by legislative action—to prevent [a landowner] from using [her] land [to develop a] home.” Washington ex rel. Seattle Title Tr. Co. v. Roberge, 278 U.S. 116, 122 (1928); see also Eubank v. City of Richmond, 226 U.S. 137, 143 (1912) (“One set of owners determine not only the extent of use but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power?”). 

SCOTUS to Seattle: make way for affordable senior housing!

Whatever else may be “fairly debatable” about due process, at least in SCOTUS’s minds, Roberge holds that zoning permits (in that case, for affordable senior housing) may not depend on the arbitrary “consent” of nearby neighbors. 278 U.S. at 117–18. As we grow, we’re noticing potential Roberge violations around the country. Local governments, you (could have) read it here first.

* * *

Our next post, continuing within Section 1 of the Fourteenth Amendment, will brief the early development of the Equal Protection Clause.

The Exile of Privileges or Immunities

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .

U.S. Const., amdt. XIV, § 1.

A home is a civil right. The modern legal system has a funny and incomplete way of guarding that right, which we’ll get to in a later post. But there’s a deeper question at play here: what even are “civil rights,” and how are courts supposed to enforce constitutional guarantees against their “abridg[ment]”? See, e.g., U.S. Const. amdt. I (“Congress shall make no law … abridging the freedom of speech … .”); id. amdt. XIV, § 1 (“No State shall … abridge the privileges or immunities of citizens of the United States … .”). This matters if you believe, as we do, that people should be allowed to build new homes or share where they live. That’s how today’s communities (almost) all came to be.

As we outlined in our last post, Section One of the Fourteenth Amendment contains three successive clauses that stand for freedom, the rule of law, and equality. Every civil rights case boils down to one (or more) of these three principles. When the Fourteenth Amendment was ratified in 1868, it was intended to settle a decades-long argument, revolving around slavery and culminating in the Civil War, as to how state and local governments were required to treat the people they governed. The Privileges or Immunities Clause was meant to enshrine the “unalienable” rights that Americans have always held to be self-evident.

This post has been difficult to write, because as any lawyer might tell you, the Privileges or Immunities Clause was rendered a dead letter in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). For 150 years, the Privileges or Immunities Clause hasn’t been worth anyone’s time, effort, expense, or uncertainty in court. Slaughter-House effectively precludes litigants from arguing the Privileges or Immunities Clause in federal district or circuit court: one would have to take a case all the way to the Supreme Court to get Slaughter-House overturned.

And yet no American would deny that civil rights are fundamental. Federal courts have evolved a legal doctrine under the Due Process Clause to protect some rights as such, and we’ll cover that doctrine in our next post. For today, we stress that the Fourteenth Amendment (and specifically the Privileges or Immunities Clause) was ratified to protect basic freedoms, above and beyond the abolition of slavery, and to guarantee those freedoms to every American citizen.

Here’s an abridged history of the Privileges or Immunities Clause, from 1787 through Slaughter-House’s aftermath.

ANTEBELLUM: 1787–1833

The Constitution was written in 1787 by white men who enslaved Black people taken by force from their own homes in Africa. These white men thought little of Indigenous genocide, and hardly at all of women’s suffrage. Freedom was a foundational principle, but the founders were hypocrites. They coded some of their hypocrisies into Article IV.

Section Two of Article IV still stands for one good idea, but at the time it also stood for an awful idea. The first sentence, which is still in force, holds that “[t]he citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States.” This is known as the Comity Clause, and it stands for the right to move freely about the country. See Saenz v. Roe, 526 U.S. 489, 500–04 (1999). The catch was its reservation for “citizens,” which didn’t then include Black people. Equal rights were incompatible with a nation divided around slavery, and Article IV’s Fugitive Slave Clause banned free states from protecting anyone who escaped there. There was persistent litigation around this issue before the Civil War. (The Fugitive Slave Clause was repealed by the Thirteenth Amendment, and the catch in the Comity Clause was rectified by birthright citizenship in the Fourteenth Amendment.)

Bushrod Washington, author of the Corfield opinion

As for what “Privileges and Immunities” were, the white men who litigated and judged cases back then didn’t bring or decide many cases to specify. The leading interpretation was from dicta in Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823), which described privileges and immunities as those rights “which are, in their nature, fundamental …. [w]hat these fundamental principles are, it would perhaps be more tedious than difficult to enumerate.” The idea was expansive and intuitive: basic Declaration of Independence, natural-rights-type stuff. It included, to be sure, “the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” Id. Corfield remains important because Senator Jacob Howard quoted it “verbatim and at length” when introducing the Fourteenth Amendment for passage by the Senate. Barnett & Bernick, The Original Meaning of the Fourteenth Amendment 61–62 (2021). But the underlying case was a snoozer about New Jersey’s ban on dredging for (as opposed to gathering) oysters; the court ultimately dismissed for what we would today call lack of standing. Corfield, 6 F. Cas. at 555.

Meanwhile, what we now call the Bill of Rights did not apply to state or local governments. This is a surprising fact that few people learn about the Constitution. The First Amendment, which was originally proposed as the third in a series of twelve amendments, applied only to “Congress”; its Establishment Clause was intended in part to protect states, such as New Hampshire, Massachusetts, Connecticut, Maryland, South Carolina, and Georgia, that had established religions at the time. See Amar, Some Notes on the Establishment Clause, 2 Roger Williams U. L. Rev. 1 (1996). Writing for the Court about the Fifth Amendment’s Takings Clause, John Marshall declared that it was simply “not applicable to the legislation of the states.” Barron ex rel. Tiernan v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243, 251 (1833). States had (and still have) their own constitutions and declarations of rights, whereas the antebellum Federal Constitution was almost all about the federal government.

ABOLITION: 1808–1865

Slavery was contentious until its final and deserved demise. The Constitution, which took effect in 1789, wouldn’t let the federal government ban the importation of slaves until 1808, and the federal government did so on January 1 of that year. The political issue of the antebellum decades was slavery. Free-staters invoked Article IV’s “Privileges and Immunities” against the expansion of slavery (without success) as early as the Missouri Compromise of 1820. Barnett & Bernick, supra, at 66–69. Abolitionists debated themselves over whether to rely on the Constitution at all. The abolitionist William Lloyd Garrison held that the Constitution was illegitimate for tolerating slavery, versus the abolitionist Lysander Spooner who argued that constitutional principles, taken seriously, forbade slavery as freedom’s opposite. Id. at 90–102. Frederick Douglass, the Black voice who reached the most white ears, initially followed Garrison, but by 1851 was agreeing with Spooner. Id. (We can’t speak for Frederick Douglass, of course; you should read his work for yourself.) The movements of Black people, and of the racists who enslaved them, were often litigated until the Supreme Court decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (consensus worst decision in Supreme Court history).

Frederick Douglass

The abolitionist Republican Party came into being and displaced the Whigs. Abraham Lincoln was elected President in 1860, eleven southern states seceded, and America fought its Civil War.

AMENDMENT: 1865–1870

Martin Luther King, Jr., praised “the magnificent words of the Constitution and the Declaration of Independence” in his most famous speech, citing the “unalienable rights of life, liberty, and the pursuit of happiness.” King, Jr., I Have a Dream (1963); accord The Declaration of Independence (U.S. 1776). King said that

“if America is to be a great nation, this must become true.”

The Constitution was amended three times in direct response to the Civil War. The Thirteenth, Fourteenth, and Fifteenth Amendments are collectively known as the “Reconstruction Amendments,” and each of them built on the last.

The Thirteenth Amendment was ratified in 1865 to abolish slavery, and authorize Congress to legislate against slavery’s badges and incidents. This is the enforcement power that the Supreme Court much later upheld, by way of overruling The Civil Rights Cases, 109 U.S. 3 (1883), in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Jones, as you’ll recall from our first post in this series, applied the Civil Rights Act of 1866 to outlaw a simple instance of private racial housing discrimination.

The Civil Rights Act of 1866 was passed after the Thirteenth Amendment but before the Fourteenth. The timing here is important. As Jones belatedly recognized in 1968, this Act was intended by Congress to make use of its new power to enforce the Thirteenth Amendment. 392 U.S. at 438–44. The Republican abolitionists who controlled Congress wanted to ensure that Black people would equally enjoy the same rights as “white citizens,” and that’s what the Act did with regard to contract and property rights. 42 U.S.C. §§ 1981, 1982. But it wasn’t clear in 1866 that the courts would uphold the Act, or that a future Congress wouldn’t repeal it. Former confederates were vying to regain power, and President Andrew Johnson (a southern Democrat) vetoed the Act, inducing Congress to override his veto. This all happened while Congress was debating what became the Fourteenth Amendment. The Congressional record is clear: the Fourteenth Amendment was designed to guarantee that the Civil Rights Act of 1866 would forever remain “the supreme Law of the Land.” U.S. Const., art. VI.

Of course the Fourteenth Amendment went on to be ratified in 1868. Section One specified that “[a]ll persons born or naturalized in the United States” were “citizens,” superseding Dred Scott and affirming that Black people, too, enjoyed fundamental “privileges or immunities” as such. U.S. Const., amdt. XIV, § 1. The Due Process Clause superseded Barron’s reading of the Fifth Amendment by expressly requiring states to provide a legal process before “depriv[ing] any person of life, liberty, or property.” Id. The Equal Protection Clause (at last) legislated the Declaration’s claim that all are created equal, and required the states to fashion their laws accordingly. And Section Five, mirroring the Thirteenth Amendment, gave Congress the power to enforce all of the Fourteenth Amendment’s provisions.

The Fourteenth Amendment completely remade the pre-Civil War federal structure of government. It is the reason that constitutional rights—freedom of speech, security in the home, due process, equal protection, etc.—are enforceable against state and local governments at all. And the Fourteenth Amendment expressly enables Congress to legislate in favor of those rights, in case state and local governments (or even private actors) fail to respect them.

The Fifteenth Amendment, ratified in 1870, closed a loophole in the Thirteenth and Fourteenth Amendments regarding the right to vote. This is a historical curiosity today, but there was an “overwhelming consensus” in the late 1860s (among white men, anyway) that “the right to vote was not a privilege of citizenship.” Barnett & Bernick, supra, at 244. The Fifteenth Amendment extended voting rights to all men regardless of race, just as the Nineteenth Amendment (1920) did for all adults regardless of gender. Because voting rights aren’t as relevant to the modern housing debate as Fourteenth Amendment rights, we’ll move on.

SLAUGHTER: 1873–1883

Trouble happens in America when white voices crowd out Black voices. White people have rights too—and it feels trite to say so—but it could well be easier for the Court to tune out when white litigants, with relatively more of the resources to get there, are the first to approach the Court with abolition-related legal questions. We can’t prove this, but it could explain the result in The Slaughter-House Cases (1873).

Slaughter-House nullified the Privileges or Immunities Clause when it was only five years old. The case is today regarded as an obsession among legal libertarians like this coauthor, whereas most lawyers simply learn as 1Ls that Slaughter-House was decided, and that was that. But Slaughter-House was important. And besides, two Justices have mused that Slaughter-House may have been wrongly decided. See, e.g., Timbs v. Indiana, 586 U.S. __ (2019) (slip op.) (Gorsuch, J., concurring; Thomas, J., concurring in the judgment).

Slaughter-House was a legal challenge by New Orleans butchers to a Louisiana law that created a corporation with a monopoly on the right to rent space for butchering. There was, to be sure, a health and safety concern at play: the Mississippi River in New Orleans was polluted at low tide by the offal and other runoff from upstream slaughterhouses, and the corporate monopoly was meant in part to ensure that all butchering would take place downstream from New Orleans. See 83 U.S. at 62. But the (presumably white) butchers didn’t argue with that. As Justice Field wrote in dissent, “the sanitary purposes of the act [could have been] accomplished” without creating a corporate monopoly, and that—requiring butchers to pay franchise fees to a specific corporation in order to do their jobs—abridged the butchers’ “right to pursue a lawful and necessary calling,” which was among the “privileges or immunities” supposed to be guaranteed by the Fourteenth Amendment. Id. at 87–89 (Field, J., dissenting). In the majority’s view, however, the Reconstruction Amendments were aimed at abolishing “African slavery,” and Louisiana’s slaughterhouse monopoly just wasn’t that. Id. at 68–72 (majority opinion). The monopoly scheme was upheld, and the Privileges or Immunities Clause defined downward to mean no more than what the antebellum Constitution had already guaranteed. See id. at 74–80. But as we saw above, that really wasn’t much.

The Colfax massacre, April 13, 1873

Slaughter-House had immediate and lasting consequences. The day before Slaughter-House was decided, some 60–160 Black freedmen (estimates vary) were murdered by the Ku Klux Klan at a Louisiana parish courthouse in a Klan riot challenging the 1872 gubernatorial election, which a Republican reconstructionist had won. This insurrection came to be known as the Colfax massacre. Several of the Klan insurrectionists were indicted and convicted under the Civil Rights Act of 1870, which made it a federal crime to conspire against anyone’s “free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States.” United States v. Cruikshank, 92 U.S. 542, 548 (1876). These criminal cases made their way to the Supreme Court which, after citing Slaughter-House, held that the Black freedmen’s “right and privilege to peaceably assemble” at the courthouse was not “a right granted to the people by the Constitution.” Cruikshank, 92 U.S. at 549, 551. No matter that the First Amendment explicitly protects that right: the Court ruled that the First Amendment “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone.” Id. at 552 (citing Barron). The Court added that “[t]he [F]ourteenth [A]mendment … adds nothing to the right of one citizen [the Black freedmen] as against another [the Klan insurrectionists].” Id. at 554.

Cruikshank thus held that Congress’s power to enforce the Fourteenth Amendment, U.S. Const. amdt. XIV, § 5, did not authorize federal legislation criminalizing the “private” actions murders perpetrated by the Ku Klux Klan. 92 U.S. at 554. Cruikshank, in tandem with The Civil Rights Cases (1883), eviscerated the post-Civil War order that the Reconstruction Amendments were intended to create. As for the Civil Rights Act of 1866, the Cruikshank Court denied that the Klan’s mass murder of Black freedmen was at all “on account of their race or color.” Id. at 555. The Klan members’ convictions were thrown out. Rest in peace, anonymous freedmen, we hardly knew ye.

***

There it is: the original meaning and premature exile of the Privileges or Immunities Clause. The passage of 150 years has not wholly repaired the Fourteenth Amendment’s intended recognition of fundamental rights. Racial discrimination ran legally unchecked for a century after the Civil War, and the Bill of Rights would not be enforced against state and local governments until the 1920s. Racial redlining, which took place after that, has been formally discontinued, but never honestly dismantled by the courts.

When the Bill of Rights finally did start getting enforced, it was done (as it is today) under the aegis of the Due Process Clause. That clause, and its particular application to zoning as announced in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), will be the subject of our next post.

The Original Meaning of the Fourteenth Amendment

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

Civil Rights Act of 1866, 42 U.S.C. § 1982. It’s true: this is (part of) the original meaning of the Fourteenth Amendment.

Now, in a series about Supreme Court jurisprudence, I’d better disclose my receipt of a gift: in 2021, some conservative think tank—I think AEI, but I really don’t recall—offered me, then an attorney at the libertarian Institute for Justice, a free copy of The Original Meaning of the Fourteenth Amendment by Profs. Randy Barnett and Evan Bernick. Randy Barnett wrote the study guide that got me an A- in contracts at Michigan Law, and I worked with Evan at the Institute for Justice in the mid-2010s. Both were, and are, inspiringly smart guys. I accepted.

• How to Legally Organize a Judiciary

  The Federalist Society is a nonpartisan 501(c)(3) nonprofit whose co-chairman, Leonard Leo, also “assisted with the Gorsuch and Kavanaugh Supreme Court selection and confirmation process” and “organized the outside coalition efforts in support of the Roberts and Alito U.S. Supreme Court nominations,” per his official Federalist Society bio (accessed Aug. 30, 2023). Your correspondent was a card-carrying member of the Federalist Society from 2011–17 or so, and appreciates its work—“parts, anyway. I didn’t like seeing Donny go” sneak his enablers a Court seat, as if public opinion matters only when one stands to win rather than lose the power to nominate. “I guess that’s the way the whole durned human comedy keeps perpetuatin’ itself, down through the generations, westward the wagons, across the sands of time until we—ah, look at me. I’m ramblin’ again.” The Stranger, The Big Lebowski (1998).

  For some 40 years now, the Federalist Society has connected lawyers, judges, law students, and policy experts around the idea that the Constitution should be interpreted according to its “original meaning,” which some say courts once neglected to do. This author finds the notion of controversy here a bit stale: federal courts routinely (if imperfectly) strive to give constitutional provisions their intended effect, and I’m aware of no precedent that consciously holds otherwise.

It’s well worth learning the original meaning of the Fourteenth Amendment. The funny thing about some (not all) self-styled “originalists” is that they’re often the same ones attacking “woke” strawmen, years too late for the term’s pop-culture zenith in 2016. It’s funny because, as an original matter, the Fourteenth Amendment is antiracist. I recommend Barnett & Bernick’s book, yet there are plenty of other places one could start.

John Bingham, the Ohio congressman who wrote the Fourteenth Amendment.

The Fourteenth Amendment is the most American part of the U.S. Constitution. Federalism: the Swiss. Separation of powers: Montesquieu. Freedom: time immemorial, or at worst the state of nature. Equal protection of the laws: this is America. (Definitely not ancient Athens.) We the People say so.

Now, the Fourteenth Amendment stands for a lot of things. It’s where birthright citizenship comes from, and it’s also what disqualifies insurrectionists from office. See Baude & Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024). But we’ll spend the next three posts exploring just the second sentence of Section One, which does much—maybe most—of the constitutional work you’ve ever read or heard about:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 

nor shall any State deprive any person of life, liberty, or property, without due process of law; 

nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const., amdt. XIV, § 1 (line breaks added). These three clauses stand, respectively, for freedom, the rule of law, and equality. Each clause has a name: the Privileges or Immunities Clause; the Due Process Clause;  and the Equal Protection Clause. The United States Reports tell their story.

The original meaning of the Fourteenth Amendment was, in part, to constitutionalize the Civil Rights Act of 1866. See, e.g., Barnett & Bernick, supra. That’s the federal statute, still in force today, that the Supreme Court upheld (as enforcing the Thirteenth Amendment) in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437–44 (1968). The upshot is that, even if Congress repealed the Civil Rights Act of 1866—and it certainly has not—the Fourteenth Amendment would still mandate equal protection for the right to “inherit, purchase, lease, sell, hold, and convey” a home. 42 U.S.C. § 1982.

Think about that.

The Right to Inherit, Purchase, Lease, Sell, Hold, and Convey a Home

We need to talk about the Constitution. Enough with California and its mixed bag of housing elements, at least for a while. This post will begin a series of discussions about federal law and how housing prohibition came to be—and what we can do about it.

I’d like to keep this simple, but there’s just too much legal history. One hard lesson of this job has been that even dyed-in-the-wool housing activists don’t always believe the Constitution has any relevance to housing, and don’t always know that the concept of “equal protection” comes from the Fourteenth Amendment. Housers might have heard of the Fair Housing Act, but may not understand what it covers or how it’s enforced, let alone why it was thought to be an improvement when it passed in 1968.

We’ll get to the Fair Housing Act in the future. Today, though, let’s start where Richard Rothstein starts in The Color of Law, with an underheralded case called Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The case, which remains good law, is a big deal because it affirms a broad reading of the Thirteenth Amendment—the one that abolished slavery—en route to upholding an important federal statute called the Civil Rights Act of 1866.

WHAT’S JONES GOT TO DO WITH IT?

Jones is one of those Supreme Court cases that seems like such an easy call that it’s hard to comprehend its significance: the defendants refused to sell Joseph Jones a home “for the sole reason” that Jones was Black, 392 U.S. at 412, and the Supreme Court held that properly gave rise to a housing-discrimination case. Duh, right?

That was certainly the feeling of the Reconstruction Congress when it enacted the Civil Rights Act of 1866. Also known as “Section 1982,” this landmark statute is still part of today’s U.S. Code. Section 1982 provides that:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

42 U.S.C. § 1982; see Jones, 392 U.S. at 412. The Fair Housing Act didn’t yet exist in the mid-’60s, when the Mayer Company refused to sell Jones his home, so he challenged their refusal by bringing a federal action under Section 1982. 

Jones’s lawsuit confronted the federal courts with some sticky questions about Congress’s power to enact the Civil Rights Act of 1866, and what that meant for Jones. Under the Constitution, Congress’s powers are enumerated, which is legalese for “Congress can’t pass a law unless the Constitution gives Congress the authority.” Congress can’t, for example, incorporate a new town in Arkansas—the Constitution doesn’t give it the authority; that’s a job for the State of Arkansas. In practice, most federal statutes today are justified under the Commerce Clause in Article I, which is a story you can read about elsewhere. In Jones, the issue was whether Section 1982 was justified under Congress’s authority to enforce the Thirteenth Amendment. Jones held that it was. 392 U.S. at 437–44.

This matters because the Supreme Court has bungled the Constitution on occasion. Jones corrected a bad chapter in the Thirteenth Amendment’s story.

After the Thirteenth Amendment formally ended slavery in 1865, the country spent decades—still is—grappling with what it means to have abolished its original sin. The Thirteenth Amendment enables Congress to enforce abolition “by appropriate legislation,” and between 1866–75, Congress enacted not one, but several Civil Rights Acts. These acts did not take a narrow view of abolition. Beyond prohibiting the most overt forms of slavery as had been practiced on the most abusive plantations, Congress intended to outlaw the subtler “badges and incidents” of slavery as well. But in The Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court invalidated the Civil Rights Acts’ various bans on private racial discrimination, undoing Reconstruction and heralding the rise of Jim Crow. This is why, more than a decade after public-school segregation was struck down in Brown v. Board of Education, 347 U.S. 483 (1954), a simple housing-discrimination case still had to be appealed all the way up to the Supreme Court. Jones overruled the Civil Rights Cases, upholding Section 1982—the Civil Rights Act of 1866—as a valid exercise of Congress’s power to root out the “badges and incidents of slavery” pursuant to the Thirteenth Amendment. 392 U.S. at 409 & n.78.

SECTION 1982, THEN AND NOW

While Jones was being argued in the spring of 1968, Congress was debating what would become the Fair Housing Act. Both Congress and the Supreme Court were aware of each others’ deliberations, and the decision was handed down shortly after the FHA became law. See id. at 413–17. Neither Jones nor the FHA limit each others’ scope, or that of Section 1982. Id. Yet after the FHA was passed, litigants mostly stopped litigating Section 1982. The caselaw simply trails off.

Fifty-five years after Jones and the FHA, America’s housing crisis has gotten worse. Although private housing discrimination is still with us, it’s clearly not the only culprit. We can’t solve today’s housing crisis without tackling the ubiquitous public housing discrimination—segregating the apartments from the plantation homes—that the FHA, a product of its time, wasn’t originally meant to address.

Still, federal law expressly protects the right to inherit, purchase, lease, sell, hold, and convey a home. 42 U.S.C. § 1982. Jones holds that Section 1982 “bars all racial discrimination, private as well as public.” 392 U.S. at 413. Good. The Reconstruction Congress that enacted it would never have approved of federal and local bureaucrats colluding to segregate neighborhoods by race, as happened in redlining’s heyday between the 1930s and the 1960s. As The Color of Law shows, the badges and incidents of redlining live on in today’s zoning codes. They invite action under Section 1982. 

***

Jones is a Thirteenth Amendment case, but it could have just as well been a Fourteenth Amendment case. Id. at n.5. The Fourteenth is the most important amendment in the Constitution, and we’ll start exploring it in our next post.