UPDATE: The arguments in this post have been incorporated into an essay forthcoming in 24 William & Mary Bill of Rights Journal (2015). Please refer to the essay version, available here.
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(1, 2, 3, 4, 5) I close my review of Kurt Lash's thoroughly-worth-reading book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, with a few comments on subsequent-interpretation evidence.
Is Subsequent-Interpretation Evidence Worth Canvassing? Lash has disparaged such evidence in general, calling it "questionable help," p. 230, and "historically perilous." What really matters, Lash and I agree, is what a reasonable person participating in the actual act of adopting the Fourteenth Amendment would have understood it to express. I agree with Lash that the 1866 evidence is thus considerably more important than later evidence. Given the quantity and clarity of subsequent-interpretation evidence, however–particularly the thoroughness of its textual reasoning–I find it extremely valuable as well. We should apply a discount rate, so that the further we get from 1866, the less valuable evidence becomes. This decay may be quite rapid; I would be happy to concede that, pound for pound, equally-well-reasoned and equally-numerous evidence from the period from 1872 to 1875 would be worth only, say, 5% of the value of evidence from 1866. However, because subsequent-interpretation evidence is much more abundant and much better textually reasoned, its relevance approaches the approximate order of magnitude of the 1866 evidence. As I explained in part 4, Lash's book actually led me to find a much greater store of equality-based evidence from 1866 than I had known earlier; given the obvious priority of pre-enactment evidence, perhaps the pre-CRA1875 evidence is not as important as this 1866 cache. But it is close.
Lash's book itself presents some subsequent-interpretation evidence in support of ITINBI (my shorthand for the incorporation, total incorporation, and nothing but incorporation reading of the privileges of citizens of the United States) from John Bingham's incorporation-focused March 1871 speech and from the Ohio Supreme Court's decision in Garnes from May 1872, as well as a creative ITINBI-friendly reading of Slaughterhouse and a tour through several other pieces of subsequent-interpretation evidence, such as Bingham's very confusing and difficult-to-harmonize January 1871 report against women voting and the failed Blaine Amendment of August 1876. Evidence like the March 1871 speech, Lash notes, bolsters the idea that Bingham had a consistent view about nationalizing the Bill of Rights from 1866 to 1871–it "illustrates the continuity in hs thinking from 1866 to 1871," p. 252. I agree than consistency over time is important, but it is important both for Bingham and for other interpreters as well. Part 3 of this review discussed Jacob Howard's 1869 discussion of voting rights under the Fourteenth Amendment. It is striking that in Lash's chapter on subsequent-interpretation evidence, he notes that "in the end we are left with Jacob Howard's public explanation of the Clause as protecting the constitutionally enumerated rights of citizens of the United States as the most likely original meaning of the text," p. 232, but without commenting on subsequent-interpretation evidence from Howard himself.
Of course, neither John Bingham nor Jacob Howard nor Schuyler Colfax were the authors, constitutionally speaking, of the Fourteenth Amendment. The actual author was a collection of people in Congress and ratifying conventions who acted collectively only through the text of the Amendment itself. To the extent that a Reconstructor attached idiosyncratic meanings to that text, he was on a frolic of his own, not acting on behalf of the actual constitutional author. In assessing the weight appropriate for explanations of meaning and assessments of constitutional application, it therefore seems reasonable to use the factors pertinent to Skidmore deference: "The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Consistency between 1866 and 1871 (or 1869 or 1872 or 1875), as well as the relative cogency and thoroughness of textual reasoning, are interpretively quite important.
If nothing else, the large number of equality-based explanations of the Privileges or Immunities Clause prior to the CRA1875 can bolster equality-based explanations of the clause given in 1866. The situation might be different if equality interpretations were completely unknown in 1866 and popped into existence full-blown from the brow of Charles Sumner in January 1872. But they did not.
Subsequent-Interpretation Equality Evidence. I devote a substantial appendix in my forthcoming book (draft here) to a collection of the many bits of evidence explaining the Privileges-or-Immunities-Clause basis for the Civil Rights Act of 1875. The serious stream of such evidence began in January 1872, when Charles Sumner began attempting to attach a civil rights provision to 14A/3 amnesty legislation. Republicans explained over and over–and over, and over–that under the Privileges or Immunities Clause, all similarly-situated U.S. citizens must receive the same privileges; common-carrier, schooling, and jury rights were rights of citizens of the United States that states could not grant in a racially discriminatory manner.
Here, I will simply list the Republicans offering such interpretations most clearly, with a link to a representative speech for each:
• framing Senators George Boutwell, John Conness, George Edmunds, Timothy Howe, James Nye, John Sherman, William Sprague, Charles Sumner, and Henry Wilson,
• non-framing Senators James Alcorn, Matthew Carpenter, Cornelius Cole, Henry Corbett, Frederick Frelinghuysen, James Harlan, Henry Pease, John Pool, Daniel Pratt, Thomas Robertson, Frederick Sawyer, and John Scott,
• framing Representatives Thomas D. Eliot, James Garfield, William Lawrence, and Samuel Shellabarger, and
• non-framing Representatives Julius Burrows, Benjamin Butler, Richard Cain, Chester Darrall, Robert Elliott, E.R. Hoar, Stephen Kellogg, David Mellish, James Monroe, William Phillips, William Purman, Joseph Rainey, Alonzo Ransier, James Rapier, Ellis H. Roberts, William Stowell, Lyman Tremain, Josiah Walls and Alexander White.
ITINBI and CRA1875. Because common-carrier and schooling rights are outside the Bill of Rights, ITINBI undermines the dominant argument for Republican proposals for the desegregation of schools and common carriers in (drafts of) the CRA1875. Indeed, Democrat Allen Thurman adopted ITINBI on February 6, 1872 for precisely this purpose. We can date Thurman's adoption of ITINBI with some precision–and, I think, significantly undermine his credibility–because on January 23, just over 2 weeks before, Thurman held that the Privileges or Immunities Clause applied to the textually-unenumerated right to testify. Democrats like James Beck, Eppa Hunton, Roger Mills, Milton Southard, and Thomas Norwood echoed Thurman's ITINBI interpretation of the Privileges or Immunities Clause for the same anti-CRA1875 purpose.
In turning away a constitutional challenge to segregated schools–the same constitutional claim underlying versions of the CRA1875 covering education–the Ohio Supreme Court (of which Thurman had years earlier been the chief justice) also followed Thurman's interpretation, though with some hesitation, in May 1872 in Garnes. The date is important; Lash lists the case as decided in 1871, matching the December 1871 term of court, but newspaper accounts from May 8, 1872 refer to the case as decided the previous day. The causal arrow runs from Thurman to Garnes, not the other way.
Lash quotes Garnes quite prominently, making it exhibit A of early judicial decisions at p. 232. (See also here and here.) It is worth stressing, however, that Garnes did not quite adopt ITINBI, but only noted "strong reasons for believing" such an interpretation. As a fallback position, the court adopted a separate-but-equal theory to rebut the hypothetical Privileges or Immunities Clause grant of "equality of rights to the citizens of a State, as one of the privileges of citizens of the United States"; Garnes took an equal-citizenship requirement as the chief competitor to ITINBI.
Other things being equal, one would of course think that the Republican Party's interpretations of the Privileges or Immunities Clause in attacking school segregation would be worth far more than the Democratic Party's interpretations defending it. Democratic opposition to the CRA1875 and to school integration stood in "apostolic succession," in Charles Black's phrase, to their opposition to the Fourteenth Amendment itself. A case like Garnes, cited favorably in Plessy (as "State v. McCann"–the plaintiff Garnes was a relator), is a better candidate for the anti-canon than the canon. While Lash at 232 n.3 immediately follows up his acknowledgment of Garnes's separate-but-equal holding with a citation to Michael McConnell's piece on the originalist foundations of Brown, the Thurman/Garnes ITINBI position was designed precisely to undermine those foundations.
Hall. In addition to the failure to canvass congressional subsequent-interpretation evidence fully, Lash is selective in early court cases. He quotes Garnes prominently, for instance, but omits future-Justice Woods's discussion of the incorporation issue a year earlier in United States v. Hall in May 1871. Woods agreed with total incorporation, but clearly rejected the nothing-but-incorporation aspect of ITINBI. Woods saw the Corfield standard adapted from IV/2/1 as definitional, but its application encompassed all of the rights in the Bill of Rights:
What are the privileges and immunities of citizens of the United States here referred to? They are undoubtedly those which may be denominated fundamental; which belong of right to the citizens of all free states, and which have at all times been enjoyed by the citizens of the several states which compose this Union from the time of their becoming free, independent and sovereign. Corfield v. Coryell [Case No. 3,230]. Among these we are safe in including those which in the constitution are expressly secured to the people, either as against the action of the federal or state governments. Included in these are the right of freedom of speech, and the right peaceably to assemble.
Bingham in March 1871. Finally, I note a key bit of waffling from John Bingham's March 1871 speech. He says that the privileges of citizens of the United States were "chiefly defined" in the Bill of Rights, which he then read, and were distinct from IV/2/1 privileges. Lash never considers possible meanings for "chiefly." The freedom of speech was a paradigmatic privilege of citizens of the United States, to be sure, and the rest of the rights in the Bill of Rights were all rights of great prestige in the Anglo-American tradition of civil liberty; that was how they got into the Bill in the first place. But were they privileges of citizens of the United States in virtue of their placement in the Constitution as such, or (as Hall, quoted just above, suggests) in virtue of their antecedent place in the tradition? Bingham's "chiefly" leaves the matter imperfectly clear.
It is also noteworthy that Bingham's March 1871 speech was never cited by ITINBI Democrats opposing the CRA875, though they were happy to cite his January 1871 Judiciary Committee report against women's voting. Bingham himself voted four times in favor of procedural motions to allow precursors of the CRA1875 to be considered in the House in May 1872 (see here, here, here, and here), but the House itself did not debate the issues until 1874, after Bingham had left Congress to become ambassador to Japan. It is possible that Thurman and his ilk were afraid of the "chiefly," or were afraid Bingham might contradict them, or both.
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Finally, despite all of these critical comments, I want to express my great appreciation again to Kurt Lash for his dogged persistence in researching the Privileges or Immunities Clause. I have not devoted much space in this review to my many areas of agreement. In several large chunks of his book, such as his explanation of terms like "privileges" and "immunities," his careful history of comity-clause interpretations, and his refutation of comity-only interpretations of the 14A, his arguments are quite compelling indeed. His work on treaties promising the rights of citizens of the United States and on Andrew Johnson's use of the concept of the privileges and immunities of citizens of the United States in his CRA1866 veto has completely transformed my own understanding of the context of the Privileges or Immunities Clause, though working through this material has brought me back to an equal-citizenship-focused reading of the Clause. Lash's amazing energy in unearthing important, hitherto-neglected material makes him the perfect choice for the University of Chicago's Reconstruction sequel to the Founder's Constitution, which has done such an excellent job of making materials in our constitutional history available to a wider scholarly and public audience. He would, I think, be the first to encourage others to look carefully into the evidence he has uncovered and to consider the merits of competing accounts of it. In conversation he has compared himself to the discoverer of vast new territory of which he can only explore a small part, and that metaphor seems exactly right. I offer my own take, here and in my own book, on the material, but it should be obvious that energetic controversy over the Privileges or Immunities Clause will not be over anytime soon. More explorers are obviously needed. By all means read his book and explore this territory yourself!
Posted at 4:00 AM