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Saturday, September 12, 2009

Slaughterhouse and the Privileges or Immunities Clause

Historical accounts of the Privileges or Immunities Clause of the Fourteenth Amendment generally assume that the author of the text, John Bingham, based the Clause on Article IV of the original Constitution.  This view assumes that Bingham and the other Republican members of the Thirty-Ninth Congress embraced Justice Bushrod Washington’s opinion in Corfield v. Coryell as the authoritative statement on the meaning of Article IV.  Since Justice Washington read Article IV as protecting all “fundamental” privileges and immunities, these scholars assume that Bingham and the Republicans must have understood Section One as somehow federalizing a broad category of fundamental common law rights originally protected under Article IV.  According to this view, the Supreme Court in The Slaughterhouse Cases wrongly ignored the Framers’ intent by distinguishing Article IV privileges and immunities from Fourteenth Amendment privileges or immunities.


Historical evidence, however, suggests that almost every aspect of this commonly presented historical account is incorrect. 

John Bingham did not base the final version of the Fourteenth Amendment on Article IV, he never relied on Corfield during the framing debates, and he went out of his way to distinguish the rights protected under Section One from the rights protected under Article IV.  Here, for example, is John  Bingham describing Section One in a 1871 speech to the House:


Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges or immunities of citizens of the United States, as contradistinguished from the citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.  . . .


Mr. Speaker, that decision in the fourth of Washington’s Circuit Reports [Corfield], to which my learned colleague has referred is only a construction of the second section, fourth article of the original Constitution, to wit, ‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.’ In that case, the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own. . . .


Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?


Bingham could not have been clearer: “[O]ther and different privileges and immunities” were protected by Section One than had been protected under Article IV. 


In a new paper to be published by the Georgetown Law Journal, I explore historical evidence which suggests that John Bingham, as well as Justice Miller in Slaughterhouse, correctly identified an antebellum distinction between the privileges and immunities of citizens in the United States (Article IV) and the privileges or immunities of citizens of the United States (Section One).  Justice Miller’s reading of the Privileges and Immunities Clause in Slaughterhouse not only mirrored the views of the man who drafted Section One, it also followed a well established strain of antebellum anti-slavery Republican thought.


Although there have been numerous historical investigations of the history of the Fourteenth Amendment, some of the most influential works were published at a time when original intentions originalism dominated the field of constitutional history.  For example, the famous debates between Charles Fairman, William Crosskey, and Raoul Berger generally focused on the intentions of the members of the Thirty-Ninth Congress.  As I have discussed in prior posts, most originalists today look for the original public meaning of constitutional texts.  This effort looks not to the particular intentions of individual Framers, but to the likely public understanding of words and phrases—the semantic content of words in the context in which they were adopted.  The members of the Thirty-Ninth Congress did not make up phrases like “privileges or immunities of citizens of the United States”—these words had a history in antebellum law. 


I will turn to that history in my next post.

Posted by Kurt Lash on September 12, 2009 at 11:24 AM | Permalink


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Another thing I just noticed about Bingham's March 1871 speech is that he says of the 14A P/I clause, "It embraces all and more than did the February propositions." But, as Bingham noted, his February 1866 proposal, like Article IV, spoke of "the privileges and immunities of citizens in the several States." So distinguishing sharply between "privileges and immunities of citizens of the United States" and "privileges and immunities of citizens in the several States" is problematic, even if we're just talking about Bingham's March 1871 speech.

Of course, all this notwithstanding, I'm still not sure how to deal with the Louisiana Purchase/Missouri Compromise evidence.

Posted by: Chris | Sep 13, 2009 5:36:51 PM

In this context, there doesn't seem to be a difference between original framer intent and original understanding intent. I'll be interested to read your piece though.

Posted by: anon holla back boy | Sep 13, 2009 11:46:24 AM

If the key is historic public textually-expressed meaning, though, the committee's view seems more important for interpreting the 14A, even if it doesn't represent Bingham's personal view. (FWIW, the Bingham report seems to have been favorably cited by Senator John Sherman in February 1872, arguing in favor of what became the Civil Rights Act of 1875 and advocating at length a common-law-based definition for 14A privileges and immunities, but conceding that political rights were not included.) Because both the January report and the March speech use exactly the same quotations from Webster's Primrose argument and Story's commentary, however, it seems likely that they were both Bingham's work.

One way to try to reconcile the two statements would be to say that Article IV and the 14A protect the same underlying privileges, but supply a different entitlement with respect to them--Article IV bans discrimination against out-of-staters with respect to basic privileges, while the 14A protects such privileges more generically, both by forbidding second-class citizenship and by safeguarding fundamental aspects of the American tradition of civil liberty. On that view, there's a sense in which the privileges are the same, and a sense in which the privileges are different. But I agree that it's mysterious.

Posted by: Chris | Sep 12, 2009 10:39:02 PM

These are all important and insightful comments--a testament to the quality of reader at Prawfsblawg. They all deserve comment. But as I have pointed out in previous posts, a focus on the words and intentions of the framers of the Fourteenth Amendment follows the approach of original intentions originalism--an earlier and now out-of-date approach to originalism. We we are seeking is the likely public understanding of the text which was presented for ratification.

This is why my current paper starts with antebellum usage of the terms "privileges and immunities of citizens in the several states" (and its equivalents) and "privileges and immunities of citizens of the United States" (and its equivalents). The members of the 39th congress did not make these terms up--understanding how these terms and phrases were used in the debates and, more importantly, how they were likely understood by the public, requires an initial inquiry into antebellum law. For that reason, I must temporarily postpone an in-depth discussion of the 39th congress.

That said, readers should be aware that Chris is quite right--John Bingham delivered a report on behalf of a committee majority in 1871 which he then completely contradicted two months later in a speech before the House. Because my project involves the likely public understanding of the text, Bingham's particular views--whether those in January or in March--cannot be conclusive. Nevertheless, it does present something of a mystery: Why the contradicting views? Does one represent Bingham's personal views and not the other? And, if so, which more likely reflects Bingham's personal views? A report expressing "the opinion of the committee" or a speech in which Bingham describes in detail his role in the drafting of the first and second drafts of the Fourteenth Amendment and explaining his understanding of both?

Whatever our conclusions, they seem to require (at the very least) a close look at all of Bingham's words and activities from 1866 to 1871. All of this will be explored in detail in Part II.

First, we must travel down the road of antebellum law.

Posted by: Kurt Lash | Sep 12, 2009 5:39:26 PM

Also, the March 1871 Bingham gives a duty-to-protect/Magna-Charta-paragraph-40 explanation of the EPC, which leaves only P/I to constitutionalize/authorize CRA1866, and Slaughterhouse-majority-style rights can't do that, I think.

Posted by: Chris | Sep 12, 2009 4:45:48 PM

You've got to say something about the Bingham-authored report for the House Judiciary Committee, 2 months before his speech to the House, where he (a) says that the 14A P/I "does not, in the opinion of the Committee, refer to privileges or immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article IV, section 2," (b) quotes Corfield extensively, and (c) relies on the same sources--Webster's argument in Primrose and Story's commentaries--that he does in the House. If what Bingham said in March 1871 is particularly relevant in virtue of Bingham's special role in 1866, then a fortiori what he said in January 1871 is particularly relevant. As clear as the March 1871 evidence might seem on its own, "could not have been clearer" is too strong given the contrary evidence from January.

As for the and/or issue, it's just an artifact of the fact that Article IV is written as a positive entitlement--citizens are entitled to both privileges and immunities--while the 14A is written as a prohibition--states shall not abridge either privileges or immunities. Of course, there might still be a distinction between "in the several states" and "of citizens of the United States."

Posted by: Chris | Sep 12, 2009 3:58:58 PM

As you know, Kurt, my own view is that the evidence on this point is in conflict. I express that position in my own forthcoming article. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1358473

The chief problem in this debate, as I see it, is the lack of an accepted metric for weighing the competing evidence. For example, you argue that the Fourteenth Amendment protected a different set of privileges and immunities than Article IV's Privileges and Immunities Clause, and you correctly note that in the framing debates, John Bingham did not rely on Corfield v. Coryell's explication of the Article IV privileges and immunities of citizens (which did not include the first eight amendments). Yet, the speech highlighted in your post is from 1871 -- three years after ratification. In the framing debates, Bingham actually said quite little about the first eight amendments -- perhaps because his earlier proposal for a privileges and immunities clause, which he did characterize as including the first eight amendments -- ran into considerable opposition. But, even if Bingham's 1871 speech is treated as acceptable evidence of original meaning, what of the evidence that Article IV was understood in the framing debates to provide the basis for the Fourteenth Amendment's Privileges or Immunities Clause? When presenting what became the Fourteenth Amendment to the Senate, Jacob Howard said: "It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States . . . . [W]e may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington . . . . It is the case of Corfield vs. Coryell . . . ." Howard then went on to argue that "[t]o these privileges and immunities, whatever they may be – for they are not and cannot fully be defined in their entire extent and precise nature – to these should be added the personal rights guaranteed and secured by the first eight amendments to the Constitution . . . ." Yet, there is very little evidence that Howard's effort to amend Corfield was right as a matter of contemporary public meaning -- none of the leading cases or treatises of the day understood Article IV's conception of privileges and immunities included the first eight amendments. There is also not much evidence that either Howard or Bingham's remarks on incorporation received sufficiently widespread notice to alter the public's understanding of the privileges and immunities of citizenship. Moreover, if the original public meaning of the Fourteenth Amendment was incorporationist, surely it is remarkable that the Supreme Court somehow failed to notice, no? Also on the list of those who did not get the message were the five states that, in the wake of ratification, modified their own constitutions in ways inconsistent with the Fifth Amendment's Grand Jury Clause.

It seems to me that the problem that one faces in analyzing this issue is to develop a persuasive metric for weighing competing evidence. It is easy to find evidence on both sides of the incorporation debate. The more difficult problem is figuring out how to weigh it.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Sep 12, 2009 3:25:21 PM

I have Prof. Lash's SSRN version of his article on my "to read" pile. I wonder if the use of "and" in Article IV and the use of "or" in the 14th Amendment makes any difference.

Posted by: Shag from Brookline | Sep 12, 2009 3:13:49 PM

Three fascinating and important substantive posts at the top of the blog and all the comments (save one) are to the hiring thread. An interesting commentary on the roles we are collectively choosing for the internet.

Posted by: Anon Prof | Sep 12, 2009 12:57:44 PM

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