UPDATE: The arguments in this post have been incorporated into an essay forthcoming in 24 William and Mary Bill of Rights Journal (2015). Please refer to the essay version, available here.
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In part 1, I ran through the sorts of evidence in Kurt Lash's book, which defends a form of what I call the "incorporation, total incorporation, and nothing but incorporation" (ITINBI) theory of the Privileges or Immunities Clause. Here, I suggest one big problem for rooting 14A privileges in the enumerations elsewhere in the constitution, and particularly in the list of personal rights in the Bill of Rights: these rights were crafted in a very different context from the one confronting Congress and the freedmen in 1868.
Someone once said that a handsaw is a good thing, but not to shave with. Using a Bill of Rights designed only to confirm and supplement limited federal power as the chief means of greatly expanding federal power by shielding new citizens of the United States from oppressive states poses a shaving-with-a-handsaw difficulty.
The contexts of 1787 and 1791 were very different from that of 1868. The Bill of Rights (and other rights set out in the federal-constitutional text, like I/9/2) were intended to safeguard citizens against the new federal government of limited powers, and this is distinct from providing a catalogue of the rights most important against government generally. The 9A is a strong hint that the privileges of citizens of the United States are not set out exclusively in the constitutional text.
Senator John Sherman made exactly this point on February 6, 1872, the same day that his rhyming fellow Ohio Senator, Allen Turman, first deployed ITINBI against the civil-rights proposals that became the CRA1875.
Sherman argued,
It was made one of the of the great objections to this Constitution, by the Anti-Federalists of the school of Patrick Henry, that this Constitution was a constitution of powers and not of rights; that it secured no rights of citizens. The answer of the Federalists was that the rights of the citizens were amply secured by giving to the citizen of one State the rights and privileges of the citizens of any other State; but this was not satisfactory to the Anti-Federalists, and they insisted upon the old amendments to the Constitution which bristle all over with the word "rights," and which do secure to the American citizen certain important rights.
But these amendments to the Constitution do not define all the rights of American citizens. They define some of them. The Constitution itself amply secures some of the rights of American citizens, but the ninth amendment expressly provides that–"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
There are certain rights enumerated in these articles of Amendment, but they are not all the rights of the American citizen; very far from it. Where do we find the record of those rights? The fourteenth amendment coming in says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
What are these privileges and immunities? Are they only those defined in the Constitution, the rights secured by those amendments? Not at all. The great fountain-head, the great reservoir of the rights of an American citizen is in the common law, the old charters that were wrenched by our ancestors five hundred years ago and two hundred years ago from English kings. Our rights are not limited to those given in the Constitution. What are those rights? Sir, they are as innumerable as the sands of the sea. You must go to the common law for them, the source from which my friend can draw the inspiration of genius and eloquence.
Federalists warned during ratification that a Bill of Rights seen as a comprehensive list of important rights would provoke a negative inference for other rights and for federal power; the 9A was a reminder that there are other rights just as important as, or even more important than, those that were textually enumerated. A later constitutional author could, of course, say in terms “No State shall interfere with any rights hitherto binding only the federal government,” but the 9A makes it a priori unlikely.
This is not to suggest, of course, that the 9A is itself incorporated against states via the 14A. That would press the 9A beyond its original function. Rather, the 9A confirms the special situation of the founding; the textual enumeration of rights in the Constitution should not be pressed beyond its original function.
Lash’s excellent earlier 9A scholarship, arguing that the 9A was chiefly a clarification of the special role of the Bill of Rights in our scheme of limited federal power, confirms the wide gulf between the roles of statements of rights in 1791 and 1868. Because states possess a general legislative power, protection of the rights of freedmen against state oppression required a more-all-encompassing provision than was required against an enumerated-rights-only federal government.
Now, for Lash's particular version of ITINBI, there is a smaller gulf between the Bill of Rights and the constitutional rights seen as most important during Reconstruction, because he would update the content of constitutional rights based on their understanding at the time. The selection of rights would thus be made based on the composition of text in 1791, but the content of those rights would be specified in 1868. Congress and the states would, moreover, still be bound by the same rules, because this updating would also apply to Congress. Rather than requiring states anachronistically to party like it's 1791, Lash applies a party-like-it's-1868 rule to both federal and state action.
This tremendously important aspect of Lash's version of ITINBI is set out only at the end of Lash's book, at pages 294-95. Here is the key explanation:
The Fourteenth Amendment did not simply address the relationship between citizens and the states; it also established one's relationship to the federal government. The opening sentence of the Amendment declares that all persons born or naturalized are citizens of the United States. It then asserts that no state shall abridge the privileges or immunities of citizens of the United States. This is, and was understood as, a declaration that the current rights of citizens of the United States shall not be abridged by the States. If we follow the anti-incorporationist reading of this sentence, there is nothing to apply against the states because the current enumerated rights int he Bill of Rights are not rights that constrain state action. We have already concluded, however, that this does not reflect the original meaning of the Privileges or Immunties Clause. If, then, the amendment properly understood includes the enumerated rights of the first eight amendments as now binding the states, this amounts to a new communication of the Bill of Rights, this time as an announcement of the Privileges or Immunities of citizens of the United States. In this way, the passage of the Fourteenth Amendment amounts to a second adoption of the Bill of Rights. That being the case, the privileges and immunities that bind the federal government are the same privileges or immunities that bind the states.
Lash is not entirely alone in this view; Akhil Amar briefly suggested such a view in his 1992 article and 1998 book on the Bill of Rights, though not as explicitly as Lash; Amar noted (book at 243, article at 1281) that "the Fourteenth Amendment has a doctrinal 'feedback effect' against the federal government, despite the amendment's clear textual limitation to state action."
While this move alleviates the gulf between the contexts of the Fourteenth Amendment and that of the original Constitution, Lash’s view of 1868 as a rebooting of the Bill of Rights is both devoid of historical support during Reconstruction and destructive of originalism with respect to the Bill of Rights.
It would perhaps be odd to bind states to 1791 understandings of free speech, the right to keep and bear arms, and so on, but this is simply the result of adding ITINBI to originalism about the original Bill of Rights. Lash's solution, however, abandons Bill-of-Rights originalism in the name of 14A originalism.
This is a Bill-of-Rights non-originalism, moreover, of a very odd sort; we are to understand text like “the freedom of speech” neither by what those words expressed in 1791 (as most originalists), nor by what they express today (as, e.g., Meiklejohn), nor by what they correspond to in moral reality (as, e.g., Dworkin), nor by what they express throughout history (as, e.g., Rubenfeld). I know of no one in 1868 who thought that the 14A reauthored the Bill of Rights as a restriction on Congress. This does not, of course, necessarily mean the view is wrong, but the complete lack of historical support, in a book executed with such admirable attention to historical detail, is striking.
Next up: "abridge," "in," and some important evidence from John Bingham and Jacob Howard.
Posted at 4:00 AM