The Futility of the Fourteenth: When Classification and Imprecision Combine
Justice Holmes’ majority opinion in Buck v. Bell[1] justified the sterilization of inmates at public mental health institutions as constitutional. It is unmistakable to any modern-day audience that such a verdict runs contrary to the tenets of liberty, equality, and protection from governmental abuse upon which our country’s democratic system was founded. And yet, due to the ambiguity of the language within the Fourteenth Amendment, Holmes was able to distort its meaning to first categorize citizens into two hierarchical groups that the Court found either more or less worthy of constitutional rights, and second, to actually bestow that different level of legal protection onto each of those groups. Although not cited as precedent in the decision itself, the unexplained assumptions made in Bell that different groups of citizens can have different rights and that the definition of a legal protection can be malleable is an extrapolation of the logic established in an earlier decision in Minor v. Happersett [2], which designated women as citizens but denied them the right to vote. These cases display that the 14th Amendment is not a sufficient remedy to protect unenumerated rights.
The basis for the decisions in Happersett and Bell is the relationship between the “privileges and immunities” and “equal protection” clauses of the 14th Amendment, which articulate that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [...] nor deny to any person within its jurisdiction the equal protection of the laws.”[3] My argument will first discuss the courts’ manipulation of the “equal protection” clause and then of the “privileges and immunities” clause. We begin with the notion of “equating” the rights of various citizens entrenched within the “equal protection” clause, the language of which allows the court to categorize citizens into groups that are not required to have the same rights as long as as the rights they do have are deemed to be “equal.” An important distinction to make here is that “equal protection” does not necessarily guarantee identical treatment within the courtroom leading to the same verdict, but only that the way in which each group is treated in the courtroom is interpreted by the jury as protecting their enumerated rights to an equal extent. By equating two things, you must first generate the distinctions needed to categorize people into those two separate groups. Such groups are not created on the initial basis of a distinction in the rights of each: rather, the groups can be distinguished based on the court’s judgment of their respective “worth,” and once that distinction is made, constitutional rights can be ascribed differently to each. In Happersett, the court is thus able to consider a distinction between how the Constitution applies to different groups of citizens by questioning whether the right to suffrage is guaranteed for all citizens; and in Bell, the court takes this same concept of grouping of citizens to the extreme by overtly labeling one of these two groups as being superior to the other as a way to justify applying the law differently to each group. Once it is established that the rights of citizens can differ based on some defining characteristic, the “privileges and immunities” clause, which does not specify what exact privileges and immunities all citizens are entitled to, is used in Happersett to contend that the Fourteenth Amendment did not grant any new rights to historically oppressed groups such as women because, unlike with explicitly enumerated rights like the right from a bill of attainder (or a form of legislation imposing punishment upon a person or group without a a trial), the “privileges and immunities” it granted are not clearly enough defined as to include suffrage. Extending this vagueness to justify an infringement of rights without even needing to cite a historical trend of such infringement, the court in Bell argued that even a harmful procedure can be viewed as a benefit or a “privilege.” Analyzing the decision in Bell through the lens offered by the majority opinion in Minor v. Happersett illuminates that because the language of the Fourteenth Amendment generates the possibility for making distinctions between groups of citizens without defining the “privileges” and “immunities” granted to all, not only are its protections able to be ignored, but they can be manipulated by any court with the motive to do so into justifying a diminishment of rights.
An unintended consequence of the concept of equality in the “equal protection” clause is that it generates the possibility of having different classes of citizens. The groundwork for differentiating citizens into groups that are afforded different rights was formulated in a question propounded in the Happersett decision, in which Justice Waite views the guarantees of the “privileges and immunities” and “equal protection” clauses as a gradient of rights that may apply selectively to some citizens and not others. He wrote, “If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters.”[4] In questioning whether a Missouri law restricting suffrage to men is constitutional, the court moves beyond inquiring whether or not suffrage falls within the scope of the “privileges and immunities” clause and thus whether or not all citizens have the right to suffrage or no citizens do. Instead, the justices set out to determine if “all citizens are necessarily voters,” categorically indicating that all citizens may not be equal under the Constitution and can be separated into groups of voters and nonvoters. This possibility of classifying citizens into categories that have different rights can be traced back to the notion of “equality” inherent in the Equal Protection Clause. The Happersett court is thus able to set up the train of reasoning that if suffrage is not protected “under the law” as “one of the necessary privileges of a citizen,” then its allocation to all citizens must not necessarily be equal, something they would not have been able to assert so seamlessly if the FourteenthAmendment has not allowed for the possibility of distinction between citizens.
In Bell, Holmes extrapolates the logic of Happersett by weaponizing the notion of equality to establish distinction among different classes of superior and inferior citizens and argue that the “privileges and immunities” of these two groups of citizens are different in a way that does not afford this lower group the right to reproduce. Holmes even more conspicuously groups citizens into hierarchies and assigns those groups different degrees of rights by writing in his decision by writing that, “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.”[5] By differentiating some citizens as being the “best” and labeling others as “those who already sap the strength of the State,” the court uses the logic of Happersett that different groups of citizens may have different constitutional rights to more explicitly assert that there are two categories of citizens in this case — those who are considered mentally competent and those deemed “feeble-minded” — that are respectively more and less deserving of legal protections. They further postulate that these hierarchies and their respective discrepancies in constitutional rights are not only justifiable but ingrained in the Constitution, as the justices argue that “it would be strange” and thus not aligned with constitutional values and precedent for inferior citizens to not be required to “sacrifice” certain rights for the common good. In this way, the Court is able to regulate the rights and responsibilities of each of these two groups differently based upon these assigned characteristics rather than their shared citizenship. Regardless of whether citizens are grouped based on gender as in Happersett or based on whether they are considered “feeble-minded” as in Bell, when there is a class of citizens being put forward as superior, it seems consistently to be the case that the rights of those citizens are stripped.
This distinction between which citizens have which rights as created by the concept of equating two groups inherent in the “equal protection clause” combines in a dangerous way with the lack of precision with which the “privileges and immunities” of all citizens are defined through interpreting the 14th amendment to protect implicit rights like suffrage that aren’t enumerated elsewhere, making way for the reasoning that if a specific right of citizens is not enumerated, then not all citizens are assumed to have that right, regardless of how essential it is to the nation’s democratic system. Thus, the court weaponizes the coupled forces of classification of citizens and ambiguity of their rights to maintain inequalities in citizens that have already been historically entrenched (such as the lack of women’s suffrage). The Court explains that if the guarantee of a right to suffrage as protected by the constitution had been “equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change.” The comparison to a bill of attainder is an important one — the right against a bill of attainder is a specific protection enumerated in the Constitution, and so it is one that the Happersett court admits that it cannot exclude certain citizens from.
When the language that defines the “privileges and immunities” of citizens is that imprecise, it can be manipulated by the court into a divergent interpretation supporting even the most egregious outcome, going a step beyond Happersett by creating vague, imprecise concepts of “benefits” that would constitute “privileges and immunities” within the language of the decision. This allows the court to justify a new definition of what a “privilege” of citizenship may be without having to cite decades worth of historical precedent as the basis for their decision. In Bell, the court wrote that “sterilization may be effected [...] without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety and become selfsupporting with benefit to themselves and to society.” The unclear gradation of intensity within the words “serious” and “substantial,” and the undefined vagueness of what it means for “safety” or “benefit” to be attained is unnerving in this context, because it is being left to the justices on this court rather than the citizen at stake to determine what level of pain or danger to life should be deemed acceptable, or what circumstances would benefit that citizen’s life. Because it is so vague and unclear what “equal protection under the law” entails, the court was able to reinterpret the act of sterilization as a “protection” because it would allow for the subcategory of citizens designated as “feeble-minded” to have the right to leave their homes and live more independently. Using the logic of Happersett that there are no set rights of citizens except for those expressly enumerated, the court is able to selectively choose which rights and protections it deems to be valid, completely ignoring the vast denial of rights under this system of forcing individuals to live in a mental institution in the first place and to now no longer be able to reproduce or parent a child and focusing in solely on the right to live independently that sterilization bestows upon them. Where the Happersett decision only denied some citizens new rights and relied back on historic precedent of already entrenched discrimination, Bell went a step further and justified a novel elimination of rights through the grouping of citizens allowed by the “equal protections” clause and a twisted redefinition of what it meant to have “privileges and immunities” without having to rely upon any past history of sterilization in order to justify the decision.
If the privileges and immunities and equal protection clauses of the Constitution bear no set meaning and can be manipulated by a court to justify the removal of rights not expressly enumerated from a certain subcategory of citizens, then our principles of republicanism and democracy, and our other vaguely worded protections such what defines “cruel and unusual punishment,” what constitutes a “speedy” trial, or what steps “due process” of law must follow garner less protection upon us than we may assume. Such a realization can be frightening when applied to the context of the modern day — while the right to vote is not currently in question, the foundation of our right to privacy is overwhelmingly fragile. The term “privacy” is not mentioned anywhere in the Constitution, instead found to exist only in penumbras of rights created by the First, Third, Fourth, and Ninth amendments, as argued in the 1965 majority decision in Griswold v Connecticut. While public fear of a real-life 1984-esque “Big Brother” is unlikely to become a reality because of its glaringly undemocratic nature, more subtle violations of privacy for only some groups of citizens could easily be made possible through wielding the fourteenth amendment to distinguish between categories of citizens and determine that some inferior group does not deserve the unenumerated right to privacy. Rather than attempting to reconstruct or reinterpret the Fourteenth Amendment as a stand-alone, one-size-fits-all solution to our nation’s unequally protected basic human rights, we must acknowledge that a single amendment that attempts to protect all possible unstated human rights will always prove to be too vague. Instead, we must work to expressly enumerate all of these most essential protections into the language of the Constitution itself.
Bibliography
Buck v. Bell, 274 U.S. 200 (1927)
Minor v. Happersett, 88 U.S. 162 (1874)
U.S. Const. amend. XIV, § 2
88 U.S. 162 (1874)
274 U.S. 200 (1927)