An Originalist Defense of Plyler v. Doe

Authors

Steven G. Calabresi
Lena M. Barsky

Abstract

This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and Equal Protection Clauses and was protected at the time of the Fourteenth Amendment’s ratification. We thus conclude that the Fourteenth Amendment granted a free public school education to both citizens and immigrants from July 9, 1868, onward.

Rights

© 2017 Brigham Young University Law Review

Recommended Citation

Steven G. Calabresi and Lena M. Barsky, An Originalist Defense of Plyler v. Doe, 2017 BYU L. Rev. 225 (2017).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2017/iss2/4