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 (5^th 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.