Christopher W. Schmidt

Volume 73, Issue 3, 723-772

This Article argues that to better understand the historical development of Fourteenth Amendment antidiscrimination doctrine, we should look to the Thirteenth Amendment. The Fourteenth Amendment was drafted in response to debates over the meaning of the Thirteenth Amendment; it was widely understood at the time of ratification as building upon the constitutional commitments embodied in the Thirteenth Amendment; and assumptions about liberty and equality more commonly associated with the Thirteenth Amendment have had a recurring, if underappreciated, influence on judicial interpretations of the Fourteenth Amendment.

I trace these Thirteenth Amendment influences on the Fourteenth Amendment from Reconstruction to some of the Supreme Court’s most important twentieth-century racial discrimination cases—such as Buchanan v. Warley, Shelley v. Kraemer, and Brown v. Board of Education—and through more recent decisions, including Obergefell v. Hodges, that extend constitutional antidiscrimination protections beyond race. Once we recover these recurrent, consequential, but rarely acknowledged Thirteenth Amendment echoes in Fourteenth Amendment doctrine, we can recognize the existence of a constitutional principle that operates alongside the tiers-of-scrutiny approach that dominates modern Fourteenth Amendment doctrine. This principle—which I label the principle of equality of rights—modulates the strength of the nondiscrimination requirement to account for the importance of the sphere of activity at issue. Despite its simplicity and intuitive attractiveness, and its foundations in the original understanding of the Fourteenth Amendment, the equality of rights principle has proven deeply unsettling across time, feared both for its potential to radically expand the reach of constitutional antidiscrimination norms and its potential to excessively constrain these norms. I argue that if constitutional law were to recognize and accept this principle, our Fourteenth Amendment doctrine would better reflect foundational commitments of Reconstruction, better explain the Court’s most consequential interpretations of the Equal Protection Clause, and better serve the needs of a nation still struggling to realize the emancipatory vision of the Thirteenth Amendment.