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Thursday, October 01, 2009

Distinguishing Article IV “Privileges and Immunities” from Section One “Privileges or Immunities”

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV.  Accordingly, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.  It turns out, however, that there is a great deal of historical evidence supporting Justice Miller’s distinction, at least as a matter of antebellum law.  In fact, John Bingham, the man who drafted Section One, insisted that the privileges and immunities protected by Section One were altogether different than the privileges and immunities protected by Article IV. 


In the last few posts, I’ve discussed how antebellum courts and treatise writers broadly understood Article IV’s “privileges and immunities of citizens in the several states” to involve a limited set of state-conferred rights.  During this same period, however, courts and political commentators were developing a separate strain of legal thought which involved the “privileges and immunities of citizens of the United States.”  The earliest example of this separate set of national privileges and immunities can be found in the language of early United States treaties, in particular the treaty accompanying the Louisiana Purchase and its attendant Cession Act of 1803.  Article III of the Cession Act guaranteed the inhabitants of the territory eventual admission to the Union and all the “rights, advantages and immunities of citizens of the United States.”  According to one newspaper of the day, the Act sought to provide territorial inhabitants the “immunities and privileges of citizens of the United States.”  This is probably the earliest example of the language which eventually became part of the Fourteenth Amendment.


The language of the Cession Act was extremely influential:  It was added verbatim to the 1819 Treaty with Spain (the Florida Cession), advocated by Secretary of State James Buchanan for the Treaty of Guadalupe Hidalgo, and added to the 1867 Treaty Russia which gave us Alaska—a treaty ratified by the Senate of the Thirty-Ninth Congress.


The most famous and extended discussion of the rights and immunities protected by Article III of the Cession Act occurred during the debates over the admission of Missouri.  When James Tallmadge sought to amend the Act admitting Missouri in order to ban slavery from the new state, pro-slavery advocates complained that this violated the rights, advantages and immunities of slave owners protected under Article III of the Cession Act (Missouri having been carved from the original Louisiana Territory).  In response, pro-freedom advocates like Daniel Webster, Rufus King and David Morill distinguished the right to own slaves (which was a state-conferred right) from the national rights, advantages and immunities of citizens of the United States.  The latter were derived from the Constitution and thus were uniform throughout the United States and common to all.  The right to own slaves, on the other hand, differed from state to states, and therefore could not be considered a federal right such as those declared by Article III of the Cession Act.


When they gave examples of federal rights, pro-freedom advocates consistently mentioned rights enumerated in the Constitution, such as the right to representation in the federal Congress enumerated in Article I and the right to access federal courts enumerated in Article III.  The key aspect of these rights according to men like Daniel Webster was the fact that they were listed in the text of the federal Constitution, and not dependent on state law.  Later, Jackson Administration officials would make a similar claim and describe the “privileges and immunities of citizens of the United States” as including those rights listed in the First Amendment to the Constitution.   


In sum, by the time of the civil war, there were two separate strains of legal thought involving two separate sets of “privileges and immunities.”  One involved the set of state-conferred rights protected under Article IV, and the other involved the set of constitutionally-conferred rights belonging to all citizens of the United States.  The historical record is not completely uniform in this regard, but the evidence indicates that the separate strains were well established and recognized by major antebellum legal and political figures. 


Whether the members of the Thirty-Ninth Congress, or the public at large, embraced this distinction at the time of the adoption of the Fourteenth Amendment is a matter for further study (and a forthcoming paper).  Certainly the comments of John Bingham suggest that he, at least, understood the distinction.  At the very least, there appears to be enough evidence to suggest that Justice Miller may have been on to something—and that scholars may have too quickly assumed that the words “privileges and immunities” always referred to the same set of rights.


My thanks to Dan Markel for the privilege of posting here at Prawfsblawg this last month.  Readers interested in an extended historical investigation of the issues I’ve explored in these posts are welcome to read my forthcoming paper in the Georgetown Law Journal, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art.

Posted by Kurt Lash on October 1, 2009 at 12:47 AM | Permalink


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Shag, to be clear, I'm not saying Kurt discusses only 1/7 of the available evidence. I'm saying that the available evidence is circumstantial with respect to the question of what the general consensus view was on privileges and immunities of United States citizens, and that I'm drawing different (again, tentative) conclusions from that evidence. This is a common problem with doing intellectual histories of large groups. It would be difficult enough to figure out what content is generally attributed to a phrase like "privileges and immunities" *right now*, even if you were to do polling on the subject, let alone 140 years ago. You generally have to rely on spotty, sometimes contradictory records left by elites (judges, legislators, newspaper editors) created in particular contexts for particular needs and then infer your way out from there.

Posted by: Bruce Boyden | Oct 3, 2009 2:53:40 PM

Bruce Boyden says:

"You see them as the tip of an iceberg of consensus."

I think that Prof. Lash exposes more of the 6/7ths below the surface than do most scholars. But I would ask Bruce if he truly believes that Lash exposes only the tip of the iceberg, can he challenge this with what he believes constitutes the 6/7ths below the surface? Both Lash and Rosenthal have gone well beyond the tip in their articles than the cherry-pickers relying upon only a portion of what Bingham had to say.

And when Rosenthal refers to the "view of 'experts' on Article IV," I don't think he means the current day experts. As I recall, Rosenthal researched newspapers contemporaneous with the enactment of the 14th Amendment for an understanding of the public's view of the P(or)I clause.

Posted by: Shag from Brookline | Oct 2, 2009 10:02:45 PM

Like Bruce, I too look forward to the next article. That said, I wonder, Kurt, since Heller tells us that constitutional interpretation should be based on how the typical voter would have understood constitutional text in the framing era, are the view of "experts" on Article IV really entitled to greater weight than the views of an amateur like Howard (assuming the characterization in correct)?

Posted by: Larry Rosenthal | Oct 2, 2009 7:48:33 PM

Thank you very much Kurt for your long and thoughtful response to my long comment. I might be wrong, but I don't think there's much disagreement between us on what the evidence is. I think there is some disagreement about what to infer from that evidence. In particular, my tentative conclusion is that the statements you point to are isolated islands in a sea of uncertainty. You see them as the tip of an iceberg of consensus. I am very much looking forward to Part II of this project, which I think will answer my questions about how you are interpreting what happened in the 39th Congress.

Posted by: Bruce Boyden | Oct 2, 2009 7:17:48 PM


There were 71 briefs filed in the Heller 2nd Amendment case. I wonder what a review of those briefs might reveal on the subject of cherry-picking in the application of originalism. Perhaps even more briefs may be filed in the Illinois 2nd Amendment appeal to be considered by the Supreme Court this term that may reap a huge constitutional cherry crop. We are fortunate to have Prof. Lash's articles and comments as well as those of Prof. Rosenthal, and others, that have emerged post-Heller. (I recently read two most interesting articles on the 14th Amendment and originalism by Prof. Rosenthal that relate to the incorporation of the 2nd Amendment to apply to states that are available via SSRN. I think he basically agrees with Prof. Lash that such incorporation is not clear from the historical record.)

Posted by: Shag from Brookline | Oct 2, 2009 2:51:54 PM

Larry is certainly right that cherry picking is a danger facing all of us who delve into legal and constitutional history. So much so, that some critics dismiss the entire effort as an inevitably cherry-picking exercise. The best we can do is present the historical evidence and trust the scholarly process to reveal gaps and counter-evidence and hope that the overall effort will produce an ever more complete picture of the historical Constitution.

But Larry's comment reminds me why I hesitated to discuss issues that will be developed in the second paper. At this point, the only claim I am making is that Bingham's 1871 speech which distinguishes Article IV privileges and Immunities from Section One Privileges and Immunities is consistent with antebellum law and political commentary. The evidence for this claim is laid out in the paper and, thus far, I don't believe it has been challenged.

The debates of the Thirty-Ninth Congress are important and deserve their own extended analysis in order to determine whether this distinction informed the debates and the likely public understanding of the text. This will be the next paper. At this point, though, it might be appropriate to let Howard himself respond to claims that he had particular insight into Article IV and its relationship to Section One. Here is Howard in the speech which Larry referenced:

"It would be a curious question to solve what are the privileges and immunities of the citizens of each of the States in the several States I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It certainly has in view some results beneficial to the citizens of the several states or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or the extent of the privileges and immunities thus guarantied."

Howard was a last minute replacement for the ailing Fessenden who had been expected to present the committee's conclusions about the final draft of Section One. For reasons I develop in the next paper, I believe his speech is important and deserves careful analysis. But I believe Howard himself clearly announced to his colleagues and to the public which read his speech that he was no expert on Article IV.

Posted by: Kurt Lash | Oct 2, 2009 11:13:40 AM

There is, of course, a great danger of cherry picking in this kind of review of historical evidence. Even if Bingham understood the constitutional amendment that he presented to the House as resting on a distinct conception from Article IV's Privileges and Immunities Clause, when Jacob Howard presented the proposed Fourteenth Amendment to the Senate on behalf of the Joint Committee, he relied on the Article IV conception, quoting from Corfield v. Coryell. Howard's speech was much more widely publicized than Bingham's. With the evidence thus in conflict, why pick Bingham's version as the accurate account of the original public meaning?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Oct 2, 2009 10:34:59 AM

So let's take two areas of law that traditionally and currently have been considered in the heartland of state jurisdiction: marriage and probate. If Lash is correct that there are two separate strains of P&Is only one of which is protected by 14A, then Reed v. Reed and Loving v. Virginia were wrongly decided. I believe it is more correct to say that the 14A replaced the concept of state citizenship with a concept of national citizenship defining those to whom rights accrue (which extends to aliens within the country, see Plyler v. Doe), leaving the states to exercise territorial jurisdiction over inhabitants and visitors but not the source of civil rights.

I think we may see this explored in the Florida takings case this term. If property rights are created by the state (which is the sort of language used in standing cases), then the state is allowed to interpret their scope and applicability. If property rights are rights of citizens which take their meaning from the common law at the time of the adoption of the 5A (in a sort of 7A fashion), then the state may not.

Posted by: r.friedman | Oct 2, 2009 8:33:22 AM

Bruce Boyden:

"I understand that original intent is passe, but surely it's still some sort of evidence of original public meaning."

Even if original intent is passe (I think so), its use as evidence would include not only Bingham but other "Framers" in the Senate and House voting on the 14th Amendment AND the ratifiers. How does one amalgamate such evidence of intent with so many individuals? So public understanding/meaning should be the focus in applying originalism in unlocking the P(or)I clause.

I suspect that some challenging Lash (and others post-Heller with similar views) have the Heller 2nd Amendment decision in mind with their critiques. I suggest that these critics take a look at Bret Boyce's "Originalism and the Fourteenth Amendment" published in the Wake Forest Law Review, Vol. 33, No. 4, 1996. (Note: the article runs over 120 pages. It is available via SSRN.) Perhaps the "survival" of originalism is at stake post-Heller.

Posted by: Shag from Brookline | Oct 2, 2009 7:27:59 AM

Bruce raises a number of important points, some of which involve the debates of the Thirty-Ninth Congress which this article does not address. I will try, however, to address all of his points, if only briefly.

As far as I can tell, Bruce does not dispute the history presented in the article. For example, as far as antebellum judicial construction of Article IV is concerned, it was remarkably consistent throughout the period and even beyond Reconstruction: the Clause did not refer to a set of national rights, but instead referred to a limited set of state conferred rights. Bruce notes that some abolitionists challenged this reading. He's right. So did some slave owners who insisted that Article IV protected a national right to carry slaves into any state in the union regardless of state law. None of these attempts at "nationalizing" the rights of Article IV caught on.

As the next paper will show, similar attempts were made by some members of the Thirty-Ninth Congress to read Article IV as a source of national rights--these efforts also were turned aside by a coalition of Democrats and moderate Republicans. In sum, in 1866 there was an easily identifiable consensus reading of Article IV, and that reading limited the scope of the clause to state-conferred rights. The evidence in this regard is quite overwhelming.

In regard to the meaning of "privileges and immunities of citizens of the United States", Bruce appears to concede that the freedom advocates in the Missouri debates like Morill, Webster and King did in fact distinguish Article IV privileges and immunities from national privileges and immunities of United States citizens. According to Bruce, however, their arguments may have been "invented at that moment." Perhaps so--one cannot know. What we do know is that these arguments clearly distinguished the rights of citizens of the United States from the privileges and immunities protected under Article IV. These debates were among the most famous of the antebellum period--Webster's speeches alone were published multiple times. Nor, as the paper points out, was this the only antebellum example of "privileges and immunities of united states citizens" being read as referring to rights derived from the constitution (and not state law). Nowhere in the paper do I claim these rights were understood as being solely limited to the rights of representation or access to the courts. Indeed, I expressly note that later examples refer to these privileges as including rights listed in the first amendment. My only point was to illustrate that when the privileges and immunities of United States citizens were discussed, they were often linked to rights derived from the text of the federal constitution and not to state law.

Finally, the paper concedes that the historical record is not absolutely uniform on this distinction between state and national "privileges and immunities." My argument is only that the distinction was clearly identifiable in critical antebellum cases and political argument and that it therefore possibly informed the understanding of the Thirty-Ninth Congress and the public in 1866-68.

Finally, as far as Bingham is concerned, he initially linked Article IV to the first draft of the Fourteenth Amendment--a draft which used the exact language of Article IV. He ultimately abandoned this draft, however, and rewrote the amendment. This second and final draft abandoned the language of Article IV and replaced it with the language of privileges and immunities of citizens of the United States. This final version, Bingham insisted, protected a completely different set of rights than those protected by Article IV. According to Bingham, these privileges included rights listed in the first eight amendments to the constitution. They did not include the state-conferred rights listed by Justice Washington in Corfield.

The next paper will explore why Bingham changed his initial draft and, ultimately, changed his mind about the proper way to protect the liberties listed in the first eight amendments. For now, all I want to stress is that the final version of the Privileges or Immunities Clause used the language of national rights--language which had a history traceble to the language of US Treaties like the Louisiana Cession Act of 1803. Bingham's explanation of the meaning of this language echoed the explanation given by Daniel Webster during the Missouri debates--and this should come as no surprise: Webster was one of Bingham's heroes, and he quoted him constantly during the debates in the 39th Congress.

In short, if Bingham believed that there was a distinction between the language of Article IV and the langauge of Section One, and if that distinction echoed a distinction commonly (even if not universally)found in in antebellum law and political thought, then there is a strong possibility that this commonly accepted meaning was part of the public's common understanding of "the privileges and immunities of citizens of the United States" when they ratified the Fourteenth Amendment.

Posted by: Kurt Lash | Oct 2, 2009 1:18:53 AM

This series has been great, and I really like the article. But this post is where I get off the bus, for 4 reasons. First, as James Kettner has argued, the sources of citizenship and the rights associated with citizenship were deeply confused throughout the antebellum period. It wasn't really clear whether national citizenship had a separate identity from state citizenship, or for that matter whether "the United States" was an entity separate from the united states, and so it's not always clear whether "citizens of the United States" is meaningfully different from "citizens of the several states." Indeed, several comments during the 1820 debate over Missouri seem to conflate the two, as do statements in 1866.

Second, and relatedly, I think it's hazardous to generalize from the debate over Missouri. It's possible that Webster and Morrill and others were simply describing a preexisting common understanding of "privileges and immunities of citizens of the United States" that included only, e.g., the right to elect two senators. (Although the statements during the debate seem to avoid saying it *exclusively* refers to such limited rights. They were most clear that it did not include a right to own slaves.) But it seems more likely that their arguments were invented at that moment in order to oppose the extension of slavery. It's not clear to me that that particular limited understanding caught on.

Third, there was an argument made throughout the antebellum period by opponents of slavery that the Art. IV P&I clause had a semi-substantive national component -- that it did more than simply require that states treat a foreign state resident as if that person was a state resident. Rather, the argument was made continuously from 1820 through the Civil War that Article IV required states to accord persons deemed citizens by other states some core set of rights of citizenship regardless of whether the state made distinctions among its own citizens. Specifically, the argument was over free blacks. You see it most prominently for the first time in the follow-up to the Missouri debate, when there was a long debate over whether Missouri could bar, in its constitution, free black citizens of Northern states from moving to Missouri altogether. Many argued that that violated Art. IV, and the issue came up repeatedly throughout the antebellum period due to northern black sailors.

I think that that argument is what Bingham, Trumbull, et al. are referring to when they say that the 14th Amendment P or I clause is intended to enforce the Article IV P&I clause. That's my fourth issue: Those statements make little sense under your interpretation. I understand that original intent is passe, but surely it's still some sort of evidence of original public meaning. Bingham for example said that there was "not a guarantee more sacred, and none more vital" than protecting the privileges and immunities of citizens of the United States. That's a pretty strong description for something that was universally recognized to guarantee the right to vote for 2 senators and access to federal courts.

Posted by: Bruce Boyden | Oct 1, 2009 5:19:22 PM

Perhaps, Mr. Williams can explain a bit further why it is "preferable" to use the privilege or immunity approach. I'm game, really I am, but the term is rather open-ended. Since it probably includes various personal rights basic to freedom, it also would not simply be tied to any limited understanding to "national citizenship" per se.

"Ordered liberty" (which tends to defined a bit more broadly anyway) is not really such a bad insight of what is covered here. Furthermore, substantive due process already was in the air by the time of the ratification as suggested by Justice Bradley's dissent. The basic idea is that there are various basic rights necessary for true liberty, rights that are necessary for the "law of the land" to be "due." This was reflected in the common law the American people were familiar with -- one in which judges over time determined certain rights were fundamental to liberty.

Corfield itself spoke of regulations which the state can "justly prescribe for the general good of the whole," that is, the "order" aspect of "ordered liberty." One bad case probably doesn't explain why the SC went down this particular road. The due process approach probably also had something going for it as well.

Posted by: Joe | Oct 1, 2009 2:10:04 PM

Justice Miller's conclusion that Article IV and the 14th Amendment reference two, different categories of privileges and immunities is born out by the text: Article IV speaks of the privileges and immunities of "Citizens in the several states," while the 14th Amendment speaks of those of "citizens of the United States." The problematic part of Miller's opinion is not that feature but rather how he narrowly defined the privileges and immunities of national citizenship and the reason he did so. Miller could identify only one privilege and immunity of national citizenship -- the right to travel interstate -- which had actually been recognized by the court as implicit in the pre-Civil War Constitution. On Miller's reading, the adoption of the 14th Amendment did not add any rights not already possessed by U.S. residents. Moreover, he did so for the flimsiest of reasons. According to Miller, the 14th Amendment had to be read narrowly or else it would destroy state control over civil rights by federalizing civil rights. That, of course, was precisely what Bingham and the Framers of the 14th Amendment intended.

Miller's mistaken reading of the 14th Amendment has had profound and unrelentingly negative impact on American constitutional interpretation. Much of the Court's substantive due process doctrine was necessitated by Slaughterhouse's crabbed interpretation of the privileges and immunities clause. And, whatever one believes about the incorporation of the Second Amendment, it would surely be preferable to answer that question by asking whether its rights are "privileges and immunities" of national citizenship, rather than rights implicit in a "scheme of ordered liberty" whatever that means.

Posted by: Norman Williams | Oct 1, 2009 11:13:53 AM

"Justice Miller may have been on to something"

The fact that there are both "state" and "national" rights is pretty clear. But, Miller's bottom line was problematic because the 14A set forth a broader set of national rights, rights states could not abridge, then he set forth. Rights not limited to the express words of the Constitution, as shown both by the Ninth Amendment and the rights cited during debates at the time. For instance, rights over family life or to work at the job you choose.

My question would be why "and" was changed to "or."

Posted by: Joe | Oct 1, 2009 9:58:32 AM

"In sum, by the time of the civil war, there were two separate strains of legal thought involving two separate sets of “privileges and immunities.” One involved the set of state-conferred rights protected under Article IV, and the other involved the set of constitutionally-conferred rights belonging to all citizens of the United States. The historical record is not completely uniform in this regard, but the evidence indicates that the separate strains were well established and recognized by major antebellum legal and political figures. "

So can we expect an originalism coin-toss or jump ball when SCOTUS considers the appeal of the Illinois case concerning incorporation of the Second Amendment, presumably under the 14th Amendment's privileges or immunities clause (rather than its due process clause)?

Posted by: Shag from Brookline | Oct 1, 2009 8:08:36 AM

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