Blood, Soil, Creed—and the Immunities of American Citizenship

Though scholarship surrounding the Constitution’s 14th Amendment has generated much controversy, it has nonetheless established one stable point of consensus. Since its adoption, virtually all authorities have agreed that its first section bars state laws that impose a racially defined fiscal or regulatory burden on American citizens. The states cannot, for instance, establish any “black code” or “white tax.”

At the same time, there has been remarkable dissensus as to three closely related matters. First, precisely what provision of that amendment—whether the Privileges or Immunities, Due Process, or Equal Protection Clauses—establishes this prohibition? Second, what other discriminations besides race are forbidden? And third, does the ban on discriminatory burdens extend to benefits, such that the 14th Amendment bars discriminatory public expenditures (educational segregation, affirmative action, etc.) as well as discriminatory taxes?

The In-munia of American Citizenship

As to the first question, the conventional answer—the Equal Protection Clause—is simply not persuasive. As many have pointed out, by its text and original understanding, that provision does not bar unequal laws but unequal enforcement—the discriminatory refusal to provide one legal benefit: the protection of the laws: no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The evil to be redressed was the lawless violence resulting from the systemic refusal of Southern white officials to protect freedmen, unionists, and Northerners against such crimes as murder, arson, theft, etc.

Rather, from an originalist standpoint, the answer is almost certainly the Privileges or Immunities Clause. That provision bars the states from making certain “laws” that abridge certain “immunities” (from the Latin in + munia) and consequently bars laws that impose certain munia (taxes, burdens).