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Friday, March 12, 2010

Alternative Interpretations of the Privileges or Immunities Clause—and desperately seeking John Bingham

Now that submission season is over and Georgetown Law Journal has graciously agreed to publish Part II of my historical investigation of the Privileges or Immunities Clause, I can get back to blogging!

There are four basic positions one can take on the meaning of the Privileges or Immunities Clause.  One, you could say it means nothing at all—the presumed position of the supreme court for most of the Clause’s history.  Two, you could interpret the clause as providing a degree of equal protection to a certain set of “privileges or immunities” (the position of Philip Hamburger in a recent paper).  Three, you could view the clause as protecting privileges and immunities enumerated in the Constitution, such as the rights listed in the first eight amendments (the incorporation reading).  Four, you could view the clause as protecting all fundamental natural rights, including rights listed in the Bill of Rights but also other nonenumerated fundamental rights (the libertarian reading of the clause).  With the exception of the first view, each of these interpretations can find significant support in the historical record.

Incorporationist scholars have long pointed out examples of the members of the Thirty-Ninth Congress referring to the need to enforce the Bill of Rights.  Libertarians can point to a significant strain of abolitionist constitutional theory which calls for the protection of natural rights (as Professor Randy Barnett has done in a recent paper).  Finally, there is evidence supporting the view recently presented by Philip Hamburger that the Privileges or Immunities Clause was merely a reworded version of Article IV.  Each of these positions had champions inside the Thirty-Ninth Congress.  For originalists, of course, the issue is not whether you can find some evidence supporting a particular reading, but whether the historical evidence allows a conclusion that one reading prevailed over another as the consensus public understanding of the Clause.

Although originalism has turned away from a search for framers’ intent and towards public understanding, the views of the framers of the Fourteenth Amendment remain important to originalist methodology.  Newspapers of the day regularly reported the speeches of the Thirty-Ninth Congress, including the discussions and debates over the wording and meaning of the Privileges or Immunities Clause.  It is plausible that discussions in the Thirty-Ninth Congress had at least some effect on public understanding of the final text.  Thus, the publicly articulated views of John Bingham, the man who drafted the Privileges or Immunities Clause, remain an important element of contemporary originalist accounts of the Privileges or Immunities Clause.

But the speeches of John Bingham can be misleading.  Bingham produced two separate drafts of the Privileges or Immunities Clause.  Not only was the wording of the two drafts strikingly different, Bingham’s explanations of the first and second drafts are based on completely different interpretations of Article IV.  In a new paper (which, like its predecessor, will be published by Georgetown Law Journal), I argue that the reactions to Bingham’s first draft made him realize he had been mistaken about the original Constitution and Article IV, and his change of mind caused him to change the text.

 Here is Bingham’s first draft of what became Section One of the Fourteenth Amendment:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all the privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment”) [parenthesis in Cong. Globe].

Here is the second (and final) draft:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.

The second draft abandons the language of Article IV and instead adopts the language of federal rights common to United States treaties—privileges or immunities of citizens of the United States.  In my next post, I will explain what led Bingham to make this critical alteration.  For now, it is enough to recognize that Bingham’s comments about the first draft may not reflect his views about the second draft.  This simple point goes a long way to explaining what otherwise appear to be inconsistencies in Bingham’s speeches about the Fourteenth Amendment.

Posted by Kurt Lash on March 12, 2010 at 08:01 PM | Permalink


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Why not put this into a book?

Posted by: book boy | Mar 13, 2010 4:02:14 PM

Seidman's piece raises a number of interesting conundrums regarding how to interpret a text which appears to point away from the text of the Constitution. He is quite wrong about my work on the Ninth Amendment, however. He repeats a claim Randy Barnett once made that my reading of the Ninth excludes individual rights. According to my reading of the evidence, however, the Ninth protects all manner of retained rights--individual, majoritarian and collective. Everything, in short, that was not meant to be delivered into the hands of the national government. The effect of the Ninth was to preserve an area of autonomy to the people in the states. If this "power constraining" view is correct, it removes the sting of Seidman's anti-textualist reading of the Ninth.

The state-protective effect of the Ninth Amendment made this provision something of a persona non grata to both abolitionists and most members of the Thirty-Ninth Congress. Both Bingham and Howard left the Ninth (and the Tenth) off their list of provisions from the Bill of Rights protected under the Privileges or Immunities Clause. Members like Nye quoted the Ninth in support of broad federal oversight of all unenumerated individual rights in the states, but this was a distinctly minority view.

Part III will put together the history of the Privileges or Immunities Clause and develop a theory of both original understanding and contemporary application. I hope to have this paper ready within a couple of months.

Posted by: Kurt Lash | Mar 13, 2010 11:44:39 AM

Madison's views were not consistent, especially about the need for a Bill of Rights. But then again, lack of consistency may have been a trait of other Founders. And you have demonstrated with your Part II Sen. Bingham's changing positions on the P/I Clause of the 14th Amendment.

Back to Madison, he seems to have pulled the 9th Amendment from his own hat, without much discussion during deliberations of Congress. I have followed your articles on the 9th Amendment in response to Prof. Barnett. Were the 9th Amendment's unenumerated rights considered by the Thirty-Ninth Congress with respect to the P/I Clause of the 14th Amendment? I recently read Prof. Louis Seidman's March 2010 "Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the impossibility of Textualism" that addressed Barnett's and your articles on the 9th Amendment. Were the statements of Justice Scalia during McDonald oral arguments nixing the P/I Clause of the 14th Amendment perhaps reflecting "hidden" concern with unenumerated rights touched upon in the 9th Amendment?

Your Parts I and II have impressed me. I wonder if your Part III will be published in time for at least the Justices' clerks to read before the McDonald decision and supporting and dissenting opinions come down in June as anticipated.

Posted by: Shag from Brookline | Mar 13, 2010 11:07:11 AM

The concerns about the need for greater federal power was a critical aspect of the debates over the Fourteenth Amendment--actually, for all three Reconstruction Amendments. Madison's early proposal to protect a key set of rights against state action was itself a proto-fourteenth amendment (as Akhil Amar and others have pointed out). On the other hand, by the end of the Philadelphia Convention, Madison found himself also concerned about excessive use of federal power--concerns quickly vindicated by the adoption of the Alien and Sedition Acts.

This concern about giving the federal government too much power also informed the debates of the Thirty-Ninth Congress. There was broad agreement that the federal government needed greater enforcement power to protect the rights of newly freed blacks, but deep divisions over how much additional power to place in the hands of the national government.

Posted by: Kurt Lash | Mar 13, 2010 9:57:01 AM


You're a dick.

Posted by: Sorry for the language | Mar 13, 2010 8:47:01 AM

Your self-congratulatory note about the Georgetown Law Journal makes a good post less interesting.

Posted by: anon | Mar 13, 2010 8:43:23 AM

At a recent lecture by Harvard historian Prof. Bernard Bailyn, he discussed the role of James Madison with the Constitution and the Bill of Rights, stating that Madison was concerned with potential excesses of the states, and submitted proposals similar to portions of the 14th Amendment that were rejected at the Convention (and perhaps in Congress on the Bill of Rights); that Madison had regretted that he had been unable to provide more power to the central government. Did Madison's concerns or regrets surface during the debates on the 14th amendment?

Posted by: Shag from Brookline | Mar 13, 2010 8:02:19 AM

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