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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(Parts 1, 2 and 3) I continue my review of Kurt Lash's excellent book with some evidence in support of the view I favor–that the Privileges or Immunities Clause requires equality in the privileges of similarly-situated citizens of the United States–which, I think, Lash does not adequately rebut. I focus on two sorts of evidence which, on Lash's principles, he should take particularly seriously: evidence from the treaty provisions like the Louisiana Cession of 1803, and evidence from the 1866 public debate. A later post will discuss subsequent-interpretation equality evidence preceding the Civil Rights Act of 1875, of which there is an enormous amount. But first let's talk about treaties and 1866.
Treaties. One of the very important contributions from Kurt Lash's scholarship on the Privileges or Immunities Clause has been his focus on provisions like the 1803 promise to Napolean to supply the "rights, advantages, and immunities of citizens of the United States" to those in the Louisiana Territory. Restrictive interpretations of this language, limiting it to rights set out in the federal Constitution, were made by Daniel Webster and his allies in rebutting the Southern-Democratic argument that it encompassed Missourians' right to legalize slavery.
I agree with Lash that the terms "privileges" and "immunities" were themselves not sharply distinguished from each other, or from terms like "rights" or "advantages," in the context of the Privileges or Immunities Clause. The restrictive phrase "of citizens of the United States" was critical in the Fourteenth Amendment, and treaties which use the same restrictive phrase were therefore a more precise textual background for the Privileges or Immunities Clause than was Article IV. (As explained in part 3, however, Article IV as glossed used the same restrictive language as the 14A.)
There was a great deal of evidence, however, which Lash does not confront, that the 1803 promise of the rights of citizens of the United States was understood as a promise of the rights of other similarly-situated citizens of the United States. It was a promise that the new citizens of the Louisiana Territory would not become second-class citizens. This interpretation fits the context of Reconstruction perfectly: it was chiefly a promise that new citizens–the freedmen–would not become second-class citizens.
Jefferson's correspondence with his Attorney General Levy Lincoln during the summer of 1803–secret at the time, but published after Jefferson's death in 1826–gives powerful support to this interpretation. The treaty with France was signed on April 30, 1803, and the Senate had not yet ratified it. Jefferson worried that the acquisition of territory required a constitutional amendment, and thought about the language which would have accomplished such acquisition in the way that the deal with France contemplated. Jefferson proposed this language:
Louisiana, as ceded by France to the United States, is made a part of the United States; its white inhabitants shall be citizens, and stand, as to their rights and obligations, on the same footing with other citizens of the United States, in analogous situations.
This was obviously Jefferson's understanding of the status of the inhabitants of Louisiana. Jefferson proposed it as a way to give proper constitutional support, in case of widespread congressional scupules, to the promises already made to (white) Louisianans; it was not a proposal to go beyond the existing treaty.
The negotiating history of the rights-advantages-and-immunities provision likewise reflects a focus on equal citizenship. Secretary of State James Madison wrote on March 2, 1803 to Robert Livingston and James Monroe, who were negotiating the treaty:
To incorporate the inhabitants of the hereby ceded territory with the citizens of the United States, on an equal footing, being a provision which cannot now be made, it is to be expected, from the character and policy of the United States, that such incorporation will take place without unnecessary delay. In the mean time, they shall be secure in their persons, and property, and in the free enjoyment of their religion.
Looking at this alongside the cession agreed to the next month, it is plain that "incorporation … with the citizens of the United States, on an equal footing" was the language which became the promise of (eventual) "rights, advantages, and immunities of citizens of the United States." Both were placed alongside temporary promises of security for property and religion until full rights of citizenship were possible.
Louisiana cases interpreting the cession applied it to the right to be a lawyer (Desbois' Case, 2 Martin 185, 1812 WL 764 (La. Super. 1812)) and statutory rights relating to alienage disabilities (US v. Laverty, 26 F. Cas. 875 (D. La. 1812)). Both contradict Webster's constitutional-rights-only construction.
Webster's argument was one of those made in defense of congressional power to impose restrictions on new states. However, there were others who construed the cession as a guarantee of equality with other citizens of the United States, but defended restrictions as evenhanded. They also argued that the promise was limited to those Louisiana in 1803, or to areas inhabited in 1803, or that Congress could override treaties.
For instance, this is Senator James Burrill's 1820 defense of restrictions on Missouri:
The true meaning of this clause must be, that the inhabitants shall be put on the same footing as other citizens of the United States, to their political rights, and to the same extent as if native-born, and the provision only extends to those who were inhabitants, and is the common provision when territory is ceded after a conquest, or otherwise; and cannot refer to persons already citizens of the United States who buy land and remove thither; such require no aid from the treaty.
John Marshall's opinion for the Court in New Orleans v. De Armas in 1835, shortly before Marshall's death, interpreted the Louisiana cession promise to be fulfilled when Louisiana residents exercised self-government through, inter alia, their court systems: "The inhabitants of Louisiana enjoy all the advantages of American citizens, in common with their brethren in their sister states, when their titles are decided by the tribunals of the state." The "advantages of American citizens" were not, for Marshall, limited to the advantages set out textually in the Constitution, but were the advantages enjoyed in common with citizens of the United States elsewhere in the Union.
The Treaty of Guadalupe Hidalgo's similar provision was said in 1849 to put "the Mexicans upon an equality with the citizens of the United States according to the principles of the Constitution." The Louisiana, Florida, and Mexican provisions, all of which included many Catholics, were invoked against anti-Catholic discrimination in 1855.
President Franklin Pierce's December 1856 message to Congress described the Louisiana Cession as "a right to pass into the condition of States on a footing of perfect equality with the original States."
Justice Curtis's 1857 dissent in Dred Scott echoed Marshall's construction of the rights of American citizens in New Orleans v. De Armas. Moreover, Justice Catron's concurrence argued against the Missouri Compromise on the basis of the Louisiana Cession; in response, Curtis and McLean's dissents relied on the arguments that the cession was limited to those in Louisiana in 1803 and that Congress could override a treaty, but without making Webster's arguments. It is true that Catron relied chiefly on the interim provisions regarding the preservation of property until statehood, but slaveowners' rights to participate equally in constitution making in Kansas and Nebraska, even before statehood, were taken by President Pierce and his fellow-travelers as covered by the "rights, advantages, and immunities of citizens of the United States" language. There was no sharp line between the maintenance-of-liberty-property-and-religion phase of territorial life under the cession and the rights-advantages-and-immunities phase. Webster's argument, if it were current, would have been a propos. But McLean and Curtis did not make it.
Finally on the treaty issue, one 1866 observer noted shortly after the proposal of the Privileges or Immunities Clause its (and the CRA1866's) similarity to the analogous Florida provision, which gave some Creoles in the Mobile area American citizenship–and continued equal citizenship–in 1819. John Forsyth of the Mobile Advertiser wrote,
These people, although of African and mixed blood, were citizens under the Spanish government, on an equal footing, in all respects, with other citizens. The treaty of 1819, by which this portion of Alabama (with Florida) was ceded to the United States, expressly guaranteed to them a continuance of the privilege of citizenship. They have actually been citizens of Alabama and Florida for nearly half a century.
1866 Public Discussion of the Privileges or Immunities Clause. Turning to 1866 public discussion of the Privileges or Immunities Clause, a great deal of it described the Clause in terms of equality.
One of the sources which Lash cites repeatedly, the Cincinnati Commercial's collection, Speeches from the Campaign of 1866, includes many, many examples in which the Privileges or Immunities Clause was described in terms of equality: Lyman Trumbull did so on August 2, Robert Schenck on August 18, James Garfied on August 22, Benjamin Butler on August 25, Columbus Delano on August 28, William Dickson on September 1, Thaddeus Stevens on September 4, Robert Ingersol on September 10, Benjamin Wade on September 11, Benjamin Butler again on October 2, Clement Vallandingham on October 4, William Dennison on October 6, Nathaniel Banks on September 27, Lyman Trumbull again on August 31, and Zachariah Chandler on October 22. I stress that these are all descriptions of the Privileges or Immunities Clause, not merely Section One as a whole, in terms of equality. The Cincinnati Commercial collection can serve as an excellent time machine for those wishing to get a first-hand feel for the public discussions during 1866. Truth be told, I had not encountered it before reading Lash's book, but reading the collection carefully greatly bolstered my confidence in an equality-based reading of the Privileges or Immunities Clause.
Lash quotes several of these descriptions at pages 194 and 195, particularly Benjamin Butler's insistence that "every citizen of the United States should have equal rights with every other citizen of the United States, in every State." Lash notes at 195 that "a promise of 'equal rights' was a common theme." Indeed it was.
Another excellent collection of evidence appears in James Bond's No Easy Walk to Freedom. Though Bond is not particularly focused on the Privileges or Immunities Clause, he quotes many discussions of the clause at length, several of which center on equality: the Nashville Republican Banner for July 6, 1866, the Southern Herald for August 25, 1866, the Arkansas Daily Gazette for November 11, 1866, and a petition of the Colored Citizens of South Carolina from February 16, 1867. A third resource is Edward McPherson's 1868 collection of newspaper clippings, Proposed Fourteenth Amendment to the Constitution of the United States, housed at the Library of Congress. It is not easy to tell where all of these clippings come from, but many of them describe the Privileges or Immunities Clause in terms of equality: an article titled The Radicial Platform as it is, another titled The Proposed Constitutional Amendment: Why No State Can Ratify It, and another titled The 14th Amendment in Kentucky, as well as articles from from the Newbern Times of North Carolina, the Philadelphia Daily News, and the Vicksburg Republican.
Other interpretations of the Privileges or Immunities Clause in terms of equality appear in the Danville Plaindealer for May 10, 1866, the Ashtabula Weekly Telegraph, May 12, 1866, the Nashville Daily Press-Times or July 7, 1866, the Texas House Committee on Federal Relations report of October 13, 1866, and the Charleston Daily News of July 28, 1870. I am sure there are many, many others.
How does viewing the Privileges or Immunities Clause as a guarantee of equality fit with ITINBI (Lash's incorporation, total-incorporation, and nonthing-but-incorporation view)? Lash explains his reaction to such evidence at page 194:
A number of Republicans expressly tied Section One of the Fourteenth Amendment to the Civil Rights Act of 1866, a reference rendered ambiguous in light of President Johnson's objection that, by conferring the status of citizenship on freedmen, the Act has not only granted certain equal rights, but had also necessarily conferred all the substanticve rights of citizens of the United States. The same was true of speeches that described the Clause as guaranteeing equal rights of citizens in the states, since both nationalizing the Bill of Rights and enforcing the Comity Clause would have had that effect.
I find these comments opaque. Why exactly would nationalizing the Bill of Rights guarantee equal rights for all citizens? The sort of equality at stake in the Civil Rights Act of 1866 was clear: it was equality with respect to rights, like the right to contract, which were both (a) outside the Bill of Rights, and (b) to be enjoyed even by citizens staying home, unconcerned with comity. Lash's explanation here is mysterious. Lash's later summary at page 221–"there is nothing in the historical record that contradicts Jacob Howard's description of the Privileges or Immunities Clause as protecting constitutionally enumerated rights"–conflicts with the evidence he presents himself earlier in the chapter, at least if this sentence means to refer to Lash's reading of Howard as contending that the Privileges or Immunities Clause covers only rights enumerated elsewhere. Perhaps Lash means only that there is no evidence that specifically said that an enumerated right was excluded. I will concede that, but Lash himself produces a great deal of evidence that the Privileges or Immunities Clause goes beyond rights enumerated in the Constitution.
Finally, when Lash assesses other views of the Privileges or Immunities Clause in his conclusion, he does not devote any argumentative space to the rebuttal of an equal-citizenship view. At 280 n.2, he lumps John Harrison’s equal-citizenship and Philip Hamburger’s comity readings without answering Harrison’s much stronger view. Lash's arguments against Hamburger are, to my mind, quite compelling, but he makes no arguments specifically against Harrison.
Next up: three prominent features of the 1866 debate inconsistent with ITINBI.
Posted at 4:00 AM