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