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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(Part 1, Part 2). I continue with my series on Kurt Lash's book on the Privileges or Immunities Clause; Lash defends what I call ITINBI: incorporation, total incorporation, and nothing but incorporation. This post highlights one 14A textual problem for ITINBI, one IV/2/1 textual complexity for Lash's argument for ITINBI, and two very important pieces of evidence in favor of a close relationship between IV/2/1 as understood and the 14A.
First, the "which shall abridge" language of the Privileges or Immunities Clause is in tension with ITINBI, because the set of rights set out in the federal constitution is not susceptible of abridgement by state action. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." If “abridge” means simply “shorten,” which 1868 dictionaries suggest it did, then the “privileges or immunities of citizens of the United States” set must be something states can in principle shorten. But states cannot shorten the Bill of Rights itself (or the set including other textually-enumerated rights).
Second, Lash distinguishes too sharply between “privileges or immunities of citizens of the United States” and Article IV’s “privileges and immunities of citizens in the several States,” a phrase Lash uses many times in isolation. But “in the several states” can refer adverbially to the manner in which privileges are to be enjoyed by visitors, rather than adjectivally to the set of privileges.
Recall the text of the comity clause: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Reading “in the several states” adverbially–that is, as modifying "shall be entitled," rather than adjectivally as modifying "privileges and immunities" or "citizens"–makes IV/2/1 a general guarantee of the “privileges and immunities of citizens,” a formulation of which 14A P/I is a precisification. "In the several States" says, on this reading, where the citizens of each State are to have their entitlement, not where citizens or privileges are located.
Both IV/2/1 and the 14A concern the privileges and immunties of citizens. The 14A is more specific–the privileges and immunities of citizens of the United States–but if we assign "in the several States" to "shall be entitled," the set of privileges covered by the 14A language and that of IV/2/1 can be made consistent.
The way to make the sets of covered privileges in IV/2/1 and the 14A identical would be to construe the general phrase "privileges and immunities of citizens" in IV/2/1 to have an implicit restriction like "of the United States." Indeed, as Lash notes, many, many Republicans (and others) made exactly this interpolation as they interpreted IV/2/1; it was called the "ellipsis theory" of IV/2/1.
Thus, while Lash is right that the 14A text is more analogous to treaty provisions using “of citizens of the United States” explicitly than is the bare text of IV/2/1, more than the bare text of IV/2/1 was in view at the time the 14A was adopted. IV/2/1 construed with the ellipsis and an adverbial rather than adjectival "in the several States" replicates the restrictive “of citizens of the United States” which Lash rightly sees as central to the meaning expressed by the Privileges or Immunities Clause.
Moreover, 2 very strong pieces of evidence link IV/2/1 with 14A P/I, one of which Lash explains inadequately and one of which Lash neglects entirely.
Lash’s explanation of John Bingham’s January 1867 reiteration of the “ellipsis theory” of IV/2/1, applying the phrase “privileges and immunities of citizens of the United States” to rates of taxation, falls short. Discussing the admission of Nebraska, Bingham explained why congressional restrictions on new states were generally inappropriate, despite some contrary precedents. These precedents, Bingham explained, merely enforced IV/2/1:
It is urged also that States have been admitted upon the condition that non-resident citizens of the United States should be subject to no other or higher rate of tax than resident citizens or be denied the immunities or privileges of citizens therein. But this is simply a carrying out of that provision of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens" [of the United States] (supplying the ellipsis) "in the several States."
Lash (after admirably setting out this quotation in full) says at 167-68 n.399 that Bingham's use of the ellipsis theory here simply stated that respecting interstate comity would make citizens of different states also citizens of the United States. But the importance is much greater: during the key ratification moment of the 14A–the month in which most of the North would ratify–Bingham used the phrase “privileges and immunities of citizens of the United States” to refer to rights clearly outside the Bill of Rights (or elsewhere in the constitution). Bingham cannot in this context be using the phrase "privileges and immunities of citizens of the United States" to refer to IV/2/1 rights themselves, because that would make the provision into a fractal. Rather, on Bingham's reading, state law which subjected its citizens to certain rates of taxation, and thus privileged them against any higher rates, had to apply to citizens of other states as well under IV/2/1; these underlying tax rates, and not merely the comity requirement, were encompassed within the phrase "privileges and immunities of citizens of the United States" for Bingham.
Further, Lash ignores Jacob Howard’s 1869 explanation for the lack of voting rights under 14A P/I in terms of the lack of voting rights under the IV/2/1. Howard explained:
The occasion for introducing the first section of the fourteenth article of amendment into that amendment grew out of the fact that there was nothing in the whole Constitution to secure absolutely the citizens of the United States in the various States against an infringement of their rights and privileges under the second section of the fourth article of the old Constitution. That section declares that–"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
There it was plainly written down. Now, sir, it seems to me, that unless the Senator from Vermont and the Senator from Massachusetts can derive the right of voting from this ancient second section of the fourth article upon the ground that the citizens of each State are entitled to all the privileges and immunities of citizens of the several States, they must give up their argument; and I assert here with confidence that no such construction was ever given to the second section of the fourth article of the Constitution.
This gives powerful evidence in support of the usual reading of Howard’s quotation of Corfield in 1866—that Howard thought that Corfield rights, previously protected only against interstate discrimination, were now protected more generally for all citizens of the United States, even those staying home. Lash reads the 1866 passage differently, understanding Howard to be referring merely to textually-enumerated comity rights, alongside textually-enumerated rights in the Bill of Rights, rather than the Corfield list of fundamental rights considered absolutely. But in 1869 Howard made his non-ITINBI attitude toward the IV/2/1-14A relationship crystal clear.
For what it's worth, in Howard's other work on a variety of issues during Reconstruction, such as 14A legitimacy and presidential power, Howard gives every impression of being a straight shooter and clear thinker. He certainly explains himself more adequately than Bingham generally does, for instance. The 14A itself was sometimes known as the "Howard Amendment." Lash himself relies heavily on Howard's 1866 introduction. Howard's 1869 IV/2/1-based construction of the Privileges or Immunities Clause, on an occasion where no ulterior motive suggests itself, is thus extremely important.
Next up: equality.
Posted at 4:00 AM