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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The first 4 parts of this review (1, 2, 3, 4) of Kurt Lash's very important book on the Privileges or Immunities Clause consider the differences between 1791 and 1868, the Bill of Rights's inherent unabridgeability, evidence that the IV/2/1 comity clause and the 14A were more closely related than Lash allows, and evidence that the guarantees of the privileges of citizens of the United States were understood as equality guarantees, i.e., entitlements to enjoy the same rights as similarly-situated fellow citizens of the United States.
The theory that the privileges of citizens of the United States are only those set out elsewhere in the Constitution, which I call ITINBI–incorporation, total incorporation, and nothing but incorporation–also has trouble with three very-prominent aspects of the 1866 debate over the Privileges or Immunities Clause: (a) the association of the Privileges or Immunities Clause with the Civil Rights Act of 1866, which included rights like the freedom of contract, the right to testify, and the right to own land, not enumerated expressly in the Constitution; (b) Republican non-ITINBI explanations of the lack of voting rights, and (c) Republican failure to invoke ITINBI to rebut Democratic charges of indeterminacy.
CRA1866. To his credit, Lash at 196 n.76 quotes at length Speaker of the House Schuyler Colfax's August 7 explanation of the Privileges or Immunities Clause (available in the fantastic Cincinnati Commercial collection):
We passed a bill on the ninth of April last year, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease, and sell property, and be subject to like punishments. That is the last law upon the subject.
Colfax's examples of the rights of citizens of the United States were, of course, not rights in the Bill of Rights. As Lash notes, the Cincinnati Commercial collection contained "many similar examples." Lyman Trumbull argued the same way on August 2, and Zachariah Chandler on October 22; Thaddeus Stevens on September 4 noted his agreement with Colfax. Bond quotes a similar statement from the Old North State of October 6. McPherson quotes the American Gazette on September 28 and the Baltimore Gazette on February 3, 1867. Similar statements also were made by General John A. Logan in the Butler County, Pennsylvania American Citizen of September 5 and in a South Carolina Republican platform reported by the Charleston Daily News for July 28, 1870.
Prior to the framing of the Fourteenth Amendment itself, the discussion of the Civil Rights Act itself was conducted in terms of the privileges of citizens of the United States. The two sponsors, the chairmen of the House and Senate Judiciary Committees–James Falconer Wilson and Lyman Trumbull–were very explicit. Wilson said on March 9, "[T]his bill refers to those rights which belong to men as citizens of the United States and none other…" At the time, the CRA1866 draft included references to "civil rights and immunities," but also named several non-constitutionally-enumerated rights explicitly.
In addition to his important new focus on the Louisiana Cession evidence, Kurt Lash has been a pioneer in highlighting the role of Andrew Johnson's veto of the Civil Rights Act in focusing attention on the "privileges and immunities of citizens of the United States" concept. Napolean and Andrew Johnson were thus co-authors of the Privileges or Immunities Clause with John Bingham. Johnson complained about the freedmen on March 27,
Four millions of them have just emerged from slavery into freedom. Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States?
Republicans answered with an emphatic yes, and the Privileges or Immunities Clause–which Bingham proposed to the Joint Committee on Reconstruction on April 21–was of course their chief vehicle for doing so. But so was the CRA1866. Lyman Trumbull's April 4 response to Johnson equated the privileges of citizens of the United States with the sorts of rights in CRA1866:
[W]hat rights do citizens of the United States have? To be a citizen of the United States carries with it some rights; and what are they? They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights in this bill, and they belong to them in all the States of the Union. The right of American citizenship means something.
Bond quotes the Raleigh Sentinel's April 12 characterization of the Civil Rights Act as containing "[o]nly those privileges and immunities peculiar to United States citizenship and necessary to civil freedom.”
What does Lash make of this evidence? At 131, Lash quotes the statement from Wilson, but at 136, he sees this argument as problematic because rights like the right to contract, give evidence, and own land were not actually privileges of citizens of the United States: "This was not a theory without problems. Whether Congress had power to confer the rights of national citizenship on persons in the states was not at all clear. Nor was it clear that the rights listed in the Act actually were rights of national citizenship." Wilson's view of CRA1866 rights as rights of citizens of the United States is clearly in tension with ITINBI, but that is a bigger problem for ITINBI than for Wilson.
At 142-43, Lash insists, however, on claiming Wilson and Trumbull as allies: "In seeking to secure the needed votes, proponents like Trumbull and Wilson narrowed their definition of the rights of American citizenship to rights expressly enumerated in the Bill of Rights." Reviewing these two speeches, this interpretation does not seem right. Lash reads Trumbull as invoking on this page "the Fifth Amendment as a textual hook for the Act," 141 n.306, and Wilson as making a "similar move." However, Trumbull does not mention the 5A explicitly in his response to Johnson's veto. Wilson for his part mentions the 5A, but the context seems too far-removed from his reference to the privileges of citizens of the United States to make it fit with an ITINBI view of the privileges of citizens of the United States. Readers, however, can mull Wilson and Trumbull's speeches for themselves.
These explanations of the CRA1866 used the language of the privileges of citizens of the United States, rather than the equal protection of the laws. Lash notes at 171 n.402 and 260 n.111 my protection-based view of the Equal Protection Clause (see here and here), leaving its merits open. This is important because on my view, the "protection of the laws," to which the Equal Protection Clause is limited, cannot cover all of the rights in the Civil Rights Act; it clearly did not encompass the right to own land, uncontroversially denied to aliens. Unless Lash adopts a contrary view of the Equal Protection Clause, he must not only disagree with Colfax, Trumbull, Stevens, Wilson, and many others who explicitly explained the Civil Rights Act in terms of the rights of citizens of the United States, but also do without CRA1866 constitutionalization at all. It is, of course, quite enough for one book to focus on the Privileges or Immunities Clause, but if Lash is presupposing a contrary view of the Equal Protection Clause, he is doing so without adequate explanation or defense.
The Lack of Voting Rights. The Democrats’ most common objection to the Privileges or Immunities Clause was that it would confer voting rights; Republicans insisted over and over that children and women were citizens yet not voters, and thus that “privileges or immunities of citizens of the United States” did not include voting rights.
A trip in the Cincinnati Commercial, Bond, and McPherson time machines will make this very clear. Among Cincinnati Commercial evidence, the Democratic voting-rights charge was made byThomas Hendricks on August 8, by a "Dr. Snow" on August 25, and by Thomas Bartley on September 29. Bond quotes the charge by the Wilmington Daily Dispatch on May 16, by the Montgomery Daily Mail on June 15, by the Clarke County Journal on June 28, by the Montgomery Daily Mail on September 27, by the Selma Daily Messenger on September 29, by the Raleigh Sentinel on September 29, by the People’s Press on October 11, by the Arkansas Daily Gazette on November 11, by the Florida House Committee on Federal Relations on November 23, by the Fayetteville News on February 12, 1867, and by the Vicksburg Daily Herald on July 24, 1868. McPherson includes clippings making the charge titled "The Radicial Platform as it is," two separate articles titled "The Constitutional Amendment," and another titled "The 14th Amendment in Kentucky," as well as the Philadelphia Daily News in separate pieces on July 31, 1868 and August 22, 1868.
The Republican rebuttal generally invoked the fact that women and children could not vote, yet were citizens of the United States. Voting was thus not a privilege of citizens of the United States. The Cincinnati Commercial reported such arguments by Oliver Morton on July 27, Schuyler Colfax on August 7, John Hannah on August 25, John P.C. Shanks on August 25, Columbus Delano on August 28, Thomas Ewing on September 19, Thaddeus Stevens on September 4, Robert Ingersol on September 10, Oliver Morton on September 22, Colonel Noyes on September 29, Robert Schenck on October 3, and Zachariah Chandler on October 22. Bond quotes such an argument by William W. Holden on September 20. McPherson quotes such arguments by the Raleigh, N.C. Tri-Weekly Standard on May 3, by the American and Gazette on September 28, by the the New Orleans Picayune on October 21, and an article from the Philadelphia American titled "Reconstruction: The Amendment Alone."
This debate–which consumed the largest share of the public discussions of the Privileges or Immunities Clause–makes no sense under ITINBI. Under ITINBI, Republicans should instead have simply noted the absence of voting rights in the Bill of Rights or elsewhere in the Constitution. ITINBI was never offered during 1866 as an explanation why the Fourteenth Amendment did not apply to voting.
The Simplicity of ITINBI. ITINBI’s very simplicity and clarity contradicts the Republican response to the second-most-common Democratic objection to P/I in 1866: that it was indefinite. Bond quotes the Cleveland Banner of July 14, the Southern Herald of October 10,and the North Carolina Joint Select Committee of December 12 making this argument. McPherson includes clippings from a letter to the Evening Post of September 17, a letter by W.E. Sharkey of September 17, a Report of the Texas legislature by Ashbel Smith, the chairman of its Committee on Federal Relations, and an article titled "The Amendment in Arkansas." Reverdy Johnson's objection to the Privileges or Immunities Clause just before proposal of the 14A–"I do not understand what will be the effect of that"–struck the same theme.
Republicans did not deny that the Privileges or Immunities Clause had fuzzy edges, though the most explicit endorsements of vague boundaries came later, rather than in the 1866 campaign itself. Jacob Howard noted in his May 1866 introduction that the set of privileges covered by IV/2/1 "are not and cannot be fully defined in their entire extent and precise nature," though of course Lash interprets Howard as sharply distinguishing the IV/2/1 set of privileges from its 14A P/I counterpart. George Boutwell noted years later that the "euphony and indefiniteness of meaning" of the Privileges or Immunities Clause "were a charm to" Bingham when he proposed it. John Pool noted in 1871, “The full scope of the rights incident to citizenship may not be easy to define.” John Sherman noted in 1872, "There may be sometimes great dispute and doubt as to what is the right, immunity, or privilege conferred upon a citizen of the United States.” George Edmunds noted in 1875, in the last speech before the Senate's passage of the CRA1875, that "it may be you cannot make a precise definition,” though “what belongs to a man in his character as a citizen has been long in a great many respects well understood.”
ITINBI contradicts these concessions of Privileges-or-Immunities-Clause fuzziness, because it provides a perfectly clear, sharp criterion for the clause. ITINBI was never offered during 1866 as an explanation why the Fourteenth Amendment had precise boundaries. As Aristotle noted, it is the mark of an educated man not to seek an explanation more precise than a subject matter will bear.
Lash's 1866 evidence. Before leaving 1866, very brief comments are in order on two other pieces of evidence from 1866 on which Lash relies heavily.
First, Lash is right–and here too his work unearths too-long-ignored evidence–that freedoms of speech and assembly were taken as paradigmatic privileges of citizens of the United States by many in 1866. However, this data point can be an instance of many different categories: natural rights, rights expressed in the Constitution, rights prevalent among United States citizens historically, or (my view) rights prevalent among United States citizens today. We must not, like Euthyphro, mistake examples for definitions.
Second, Lash relies on Bingham’s statement that his Fourteenth Amendment precursor did not go beyond enforcement of “the Bill of Rights,” but concedes at 94 that Bingham used “Bill of Rights” idiosyncratically broadly (i.e., as including the comity clause rights of IV/2/1) at the time. Lash’s concluding reiteration of Bingham's February 1866 evidence at 301 without mentioning this complexity is likely to mislead.
Next and finally: subsequent-interpretation evidence.
Posted at 4:00 AM