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VOLUME
102
JUNE
1989
NUMBER 8
HARVARD
LAW
REVIEW
IN MEMORIAM: PAUL
M.
BATOR
David
L.
ShapiroCharles FriedStephen Breyer
ARTICLES.
RACIALCRITIQUESOFLEGAL
ACADEMIA
Randall
L.
Kennedy
LIMITING
CONTRACTUAL FREEDOM
IN
CORPORATE
LAW:
THE
DESIRABLE CONSTRAINTS
ON
CHARTER AMENDMENTS
Lucian A.Bebchuk
NOTES
The Luck
of the
Law
:Allusions to Fortuity in Legal DiscourseIncorporating the Republic:
The
Corporation in AntebellumPolitical Culture
The Content
Distinction in Free Speech Analysis After
Renton
Membership
Has
Its
Privileges
and
Immunities:Congressional PowerTo Define
and
Enforce the Rights of National CitizenshipOver-Protective Jurisdiction?:A State Sovereignty
Theory
of FederalQuestions
Major
Operational Decisions
and
Free Collective Bargaining:Eliminating the
Mandatory/
Permissive Distinction
The
Anti-Discrimination Principle in the Common
Law
BOOK
REVIEW
WHAT
CAN
A
LAWYER LEARN
FROM
LITERATURE?
RECENT CASES
James
Boyd
White
Copyright
©
1989
by
THE
HARVARD
LAW
REVIEW
ASSOCIATION
\
 
MEMBERSHIP
HAS
ITS
PRIVILEGES AND
IMMUNITIES
:CONGRESSIONAL POWER
TO
DEFINE
AND
ENFORCE
THE
RIGHTS
OF
NATIONAL
CITIZENSHIP
The
belief
that
certain rights are necessary
attributes
of an
individual's
membership in
a political
community
is deeply rooted
in our
political tradition.
"The
power
of
citizenship as a shield
against
oppression
was
widely
known
from the example
of
Paul's
Roman
citizenship,
which
sent
the centurion scurrying
to his higher-ups
withthe
message:
'Take
heed
what
thou
doest: for this
man
is a
Roman.
"'1
Judges
and
scholars
have
long
asked whether
individual rights, be
yond
those
enumerated
within
the text
of
the Constitution
and
infederal
statutory
law,
can
be inferred from a person's
status
as acitizen
of
the
national
political
community
.
The
question
of the
existence
of
such rights of citizenship
bears
on
the continuing
controversy over
the
limits
of
Congress'
power
to pro
tect
certain
individual
activities from
nongovernmental discriminatory
conduct.
The
Supreme Court's
recent decision
2
to reconsider the holding
of
Runyon
v.
McCrary,3
which extended
the coverage
of
42
V.S
.
c.
§ 1981
to
private
racially
discriminatory
acts in
the making
of
contracts,
4
has
instilled in scholars foreboding
toward
the Court's
future
treatment of
civil rights enforcement.
More
fundamentally, the wholeaffair highlights a basic question
of
constitutional ordering: is
the
goal
of individual
freedom
advanced
if
private
actors
can
exercise coercive
power
to
frustrate the
very
liberties
that
government
itself is forbiddento infringe?
Although
Congress
can now
regulate
private conduct
obliquely
through
the
commerce clause,
current
constitutional doctrineplaces
barriers
on congressional
power
to directly protect rights from
private
infringement.
This
Note
proposes
that
the
path out
of
this
quandary
lies
in the
rediscovery
of
a source
of
legislative
power based
on the
inherent
structural
framework
of
the
Constitution
and
organized
around
the concept of national
citizenship.
Future
legislativeefforts
should
rely on this conception
of
rights to reach categories
ofprivateconduct
beyond
the
current
constitutional reach
of
the
national
government.
Such
a
strategy would
also
lead
to a reinvigoration in
our
ideals
and
aspirations
of
citizenship.
5
1
Edwards
v.California,
314
U.S.
160, 182(1941)
(Jackson,
].
,concurring)(quoting
Acts
22
:
26
(King James)).
2
See
Patterson v.McLean Credit Union,
108
S.
Ct
.
1419(1988).
3427
U.S.
160 (1976).
4
See
id
.
at
168-75
.
5
The
analysis in this Note, which
is
concerned with normative questions of constitutionalinterpretation, parallels in some respects the work of a group of historianswho argue
that
thefourteenth
amendment and
other legislative
landmarks
of the Reconstruction reflected a nationalistic political theory embodied by the Republican majorityin Congress
that
sought to bring
 
HARVARD
LAW
REVIEW
[Vol.
102:192$
Part
I briefly surveys the doctrinal limits
of
constitutional authorization to legislate against private discriminatory conduct.
Part
II
traces the notion in American political thought
that
an
individual'sstatus as a member of a political community carries with it certaininherent rights,
and
shows
how
the Supreme
Court
has given concreteexpression to this
idea by
recognizing certain classes of unenumeratedindividual rights.
PartIII
suggests
how
a modernized conception
of
citizenship rights can serve as authority for a program of legislationdesigned to reach classes
of
private discriminatory action
that
currently lie beyond the accepted constitutional limits of congressionalpower.
1.
THE
CONSTITUTIONAL
SAFE
HARBOR
FOR
PRIVATEDISCRIMINATORYCONDUCT
Current
constitutional doctrine authorizes Congress to enact legislation to protect individual rights against private discriminatory con
duct under
several different heads
of
constitutional authorization.
Each of
these doctrinal sources of legislative power, however, is restricted by its own inherent limits,
and
no single source can providea coherent
and
consistent constitutional foundation for congressionalaction to reach the myriad forms
of
unacceptable private discriminatory conduct.
A. Thirteenth Amendment
In
Jones v. Alfred H. Mayer Co.,6
the Supreme
Court
expansivelyinterpreted the enabling section of the thirteenth
amendment
to authorize legislation directed
at
private racially discriminatory conductenacted
under
Congress' discretion "rationally to determine
what
are
most civil rights under the protection of the national government.
See, e.g.,
H.
GRAHAM,
EVERYMAN'S
CONSTITUTION
152-241, 298-336
(1968);
H.
HYMAN
&
W.
WIECEK,
EQUAL
JUS-
TICE
UNDER
LAW
(1982);
J.
TENBROEK,EQUAL
UNDER
LAW
(1965); Kaczorowski,
Revolution-ary Constitutionalism
in
the Era
of
the Civil War and Reconstruction,
6
IN.
Y.
U. L. REv. 863(1986).Although the claims presented here rely partly on this body of work, this Note
is
notintended to be
an
argument about historical interpretation.Such an approach
is
vulnerabletoother legitimate perspectives on the historical record.
See, e.g.,
Maltz,
Reconstruction WithoutRevolution: Republican Civil Rights Theory in the Era
of
the Fourteenth Amendment,
24
Hous.
L.
REv.
221
(1987)(arguing
that
conservative elements within the Republican party preventedit from completely nationalizing the protection of civil rights).
As
the
war
waged by scholarsover the historical legitimacy of the incorporation doctrine illustrates, the task of divining theintent of the framers of the fourteenth amendment is particularly difficult and muddied; inshort,
it
is "an argument no one can win."
J.
ELY,
DEMOCRACY
AND
DISTRUST
25
(1980).
6
392
U.S.
409
(19
68
).
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