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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Mike Ramsey has rightly called Kurt Lash's book from last spring, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, an "early contender for most important originalist book of 2014." Lash argues that the Fourteenth Amendment's "privileges or immunities of citizens of the United States" are those personal rights textually enumerated elsewhere in the Constitution, mostly in the Bill of Rights, but some elsewhere, like the habeas rights of Article I section 9 clause 2 (I/9/2) or the comity rights of IV/2/1. Because "incorporation" has become the shorthand term for the use of the Fourteenth Amendment to apply rights like those in the Bill of Rights against the states–though the term itself is not the most perspicuous–I will abbreviate Lash's view of the Privileges or Immunities Clause as ITINBI: incorporation, total incorporation, and nothing but incorporation.
Scholars devoted a great deal of attention to ITINBI following Justice Black's adoption of the view in his dissents in Adamson and Griswold and his concurrence in Duncan. However, Lash makes clear that the debate is far, far from exhausted; neither Black nor his opponents were able to consider nearly as much data as Lash has been able to consider with the aid of modern searchable databases.
Lash's version of ITINBI attaches a great deal of importance to 1868, when the Fourteenth Amendment was ratified (on the standard view, though see here for my contrarian 1867 view). On Lash's reading, 1868 is critical, however, not just for states, but for Congress as well. The Privileges or Immunities Clause functions, on Lash's reading, as a sort of rebooting of the entire Bill of Rights, so that we should interpret the words "freedom of speech," either as a restriction on Congress or as a restriction on states, based on what those words expressed in 1868, not 1791.
I should disclose that I am not a neutral observer of the Privileges or Immunities Clause: my own book on the Clause will come out next March (draft here). For what it is worth, I read the Clause to forbid states to shorten the rights of citizens of the United States relative to similarly-situated fellow citizens, either in the same state or in other states. The same-state component would reproduce much current equality law (allowing the Equal Protection Clause to focus on literal "protection of the laws," as I advocate here and here), while the other-states component would guard fundamental rights against outliers from the American tradition of civil liberty, producing incorporation of most privileges in the Bill of Rights in virtue of their prevalence in that tradition, but not necessarily in the precise form they bind Congress.
Despite our disagreements, Lash and I have a great deal in common. We both seek what the constitutional text expressed to reasonable observers at its enactment, and we both advocate the reinvigoration of the Privileges or Immunties Clause to do the work accomplished today by substantive due process. We agree that the restrictive language of the text–"of citizens of the United States"–is far more important to the Privileges or Immunities Clause than are the mere terms "privileges" and "immunities," and thus that provisions like the Louisiana Cession's promise of the "rights, advantages, and immunities of citizens of the United States" are closer to the Privileges or Immunities Clause than is the text of IV/2/1. We agree that the Privileges or Immunities Clause goes beyond comity, but does not go so far as to constitutionalize natural rights as such.
After the jump, I'll summarize the several fields of evidence that Lash's book surveys. In upcoming posts, I'll consider several categories of difficulties with either the ITINBI thesis or Lash's arguments for it.
Lash’s argument defies easy summary; his case is cumulative. Lash commendably does not claim that he can reconcile all the relevant evidence to support his thesis, but seeks only the most prevalent patterns of usage. Much evidence he unearths is new; his creative readings of old evidence are generally able at least to dislodge some of my prior confidence in contrary readings. He hits many controversies:
1. The close relation of “privileges” and “immunities” to concepts like “rights” or "advantages." Lash is therefore right to focus on the precise restrictive language used, i.e., “of citizens of the United States.”
2. The history of IV/2/1: “The citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States.” IV/2/1 variously inspired abolitionists and others with influence on the Republican Party, but it used different language from the 14A. Lash creatively reads Howard’s 14A-introducing speech not (as most read Howard) to make Corfield’s 1825 list of IV/2/1 rights into absolutely-protected national rights, but only as taking IV/2/1 itself, i.e., comity, as a privilege of citizens of the US.
3. Treaty provisions, such as the Louisiana Cession's promise of the “rights, advantages, and immunities of citizens of the United States,” which Daniel Webster and others limited to textually-enumerated constitutional rights during the Missouri debates of 1819 and 1820.
4. Bingham’s IV/2/1-language-tracking February 1866 proposal, equated by Bingham with enforcement of the “Bill of Rights.”
5. The Civil Rights Act of 1866 (CRA1866), especially Andrew Johnson’s veto message and responses to it. Johnson used the language of the privileges and immunities of citizens of the United States; in response, both Lyman Trumbull and William Lawrence invoked treaties such as the Louisiana Cession.
6. Public discussion of the Fourteenth Amendment, especially discussion of the speech and assembly-and-petition rights grossly violated in New Orleans in July 1866 and seen as paradigmatic Fourteenth-Amendment privileges.
7. Subsequent interpretation of the Fourteenth Amendment, such as Bingham’s incorporation-focused speech of March 1871. Lash works heroically to explain difficult Bingham evidence from his January 1871 Judiciary Committee report on women’s voting.
Lash’s book is an extremely impressive scholarly achievement, but I see several areas in which both ITINBI and Lash’s arguments for it face severe difficulties. To my mind, these difficulties are insurmountable, though your mileage may vary. I'll run through these in five subsequent posts:
(a) the gulf between the contexts of 1791 (and 1787) and 1868, making the Bill of Rights an ill fit as a catalogue of the most essential rights of new citizens of the United States during Reconstruction;
(b) textual details regarding "abridge" in the 14A and the possibly-adverbial "in the several States" in IV/2/1, and 1867 and 1869 evidence from Bingham and Howard linking 14A with IV/2/1,
(c) equality-focused interpretations of the Lousiana Cession language and of the Privileges or Immunities Clause itself,
(d) several very prominent features of the 1866 public debate, particularly CRA1866 constitutionalization, disputes over application to voting, and disputes over P/I indefiniteness, all of which ITINBI accommodates poorly, and
(e) subsequent-interpretation evidence, especially that preceding the CRA1875.
Posted at 4:00 AM