« Health Care Reform and the Taxing Power | Main | April Rotations »

Thursday, April 01, 2010

The Oddest Omission in McDonald v. Chicago

McDonald v. Chicago presents the first real opportunity in decades for the Supreme Court to place the jurisprudence of Fourteenth Amendment substantive individual rights on solid textual and historical ground.  Almost no one believes that the original understanding of the Due Process rights.  Most scholars believe the text of the Privileges or Immunities Clause is far more likely to have been understood as the vehicle for protecting individual rights against state action, particularly the rights listed in the first eight amendments.  This is exactly how the final version of the Privileges or Immunities Clause was described by the man who framed it—John Bingham.  It is surpassingly strange, then, that the petitioners in McDonald v. Chicago omitted John Bingham’s explanation of the final version of the Fourteenth Amendment in both their briefs and their oral arguments before the Supreme Court last month.  Bingham’s views certainly support the petitioner’s request that the Second Amendment be enforced as an “incorporated” right under the Fourteenth Amendment.


Then again, perhaps the omission is not so strange.  It is clear from their briefs that the petitioners were seeking much more than Second Amendment incorporation.  Instead, as Alan Gura insisted at oral argument, the Privileges or Immunities Clause should be read as protecting any right which a majority of the Court deems “fundamental,” regardless of whether it is listed in the text of the Constitution.  This claim cannot be reconciled with John Bingham’s more modest understanding of Section One of the Fourteenth Amendment.

Most fundamental rights, or libertarian, interpretations of the Privileges or Immunities Clause stress John Bingham’s first draft of the Clause.  That draft used the language of Article IV (“privileges and immunities of citizens in the several states”)--language which libertarian scholars link to antebellum cases like Corfield v. Coryell and Justice Washington’s discussion of “fundamental” common law rights.  Although the language of Article IV was removed in the second and final draft of Section One, libertarian scholars believe that the final version of the Privileges or Immunities Clause should nevertheless be read as nationalizing Justice Washington’s vision of “fundamental rights.”  


It seems odd that anyone seeking to protect Article IV rights would remove the language of Article IV.  In fact, the historical record indicates that John Bingham had good reason for changing the language—he wanted to avoid precisely the kind of interpretation of the Clause advocated by contemporary libertarians.


Having explored the debates of the Thirty-Ninth Congress over the last few posts, readers should now have a good idea why Bingham abandoned Article IV.  When he drafted the first version of the Fourteenth Amendment, Bingham believed that his colleagues would understand the language of Article IV just as he did—as protecting those national “privileges and immunities” actually enumerated in the Constitution, such as the first eight amendments.  Their immediate and strongly negative reaction to his first draft, however, convinced Bingham that he had made a mistake.  Most members understood Article IV as doing nothing more than providing sojourning citizens equal access to a limited set of state conferred rights.  No one seemed to share Bingham’s view that Article IV obligated the states to enforce the Bill of Right.  Worse, Radical Republicans sought to use Article IV cases such as Corfield to justify federal oversight of the entire subject of common law civil rights—a goal which Bingham opposed and which would never be accepted by moderate and conservative Republicans.


Accordingly, Bingham withdrew his first draft, removed the language of Article IV, and replaced it with the language of federal rights most often found in federal treaties.  This version protected the “privileges or immunities of citizens of the United States.”  According to antebellum abolitionists like Daniel Webster, the rights and immunities “of citizens of the United States” involved those rights expressly listed in the Constitution, and did not include state conferred common law rights.  It would not be surprising if Bingham embraced the views of Webster.  Bingham considered Webster an American hero and he quoted Webster’s speeches numerous times during the debates of the Thirty-Ninth Congress.  In fact, only a few years after the adoption of the Privileges or Immunities Clause, Bingham explained the meaning of the Clause in a manner that clearly follows the views of Bingham’s hero.


In his 1871 speech to the House of Representatives, Bingham declared:


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 and immunities of citizens of the United States, as contradistinguished from citizens of a State [the language of Article IV] are chiefly defined in the first eight amendments to the Constitution of the United States.  Those eight amendments are as follows [Bingham then reads in full the first eight amendments] . . ..


Notice that Bingham embraces a “total incorporation” approach to the Privileges or Immunities Clause—he believes that each of the first eight amendments express rights now protected against state action under the Fourteenth Amendment.  Also notice that Bingham distinguishes the rights protected under the Privileges or Immunities Clause from the rights protected under the Privileges and Immunities Clause of Article IV.  Bingham rejected efforts by Radical Republicans to read Section One as having nationalized the common law rights described by Justice Washington in cases like Corfield v. Coryell.  According to Bingham:


Mr. Speaker, that decision in the fourth of Washington’s Circuit Court Reports, to which my learned colleague [Mr. Shellabarger] has referred is only a construction of the second section of the 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 court not refuse to extend to citizens of other States the same general rights secured in its own.


It was to avoid any linkage to cases like Corfield that Bingham redrafted his proposal and removed the language of Article IV.  His new draft went further than the equal rights approach of Article IV and avoided any implied nationalization of unwritten common law rights.  True, the Clause protected more than just the Bill of Rights.  Bingham noted that the rights covered by the privileges or immunities clause were “chiefly” defined by the first eight amendments.  Elsewhere, he insists that his second draft protects all the rights of the first (Article IV-based) draft and more.


It is here that Bingham most closely reflects the thinking of his hero Daniel Webster.  To Webster, all rights expressly enumerated in the Constitution were “rights” and “immunities of citizens of the United States.”  This would include rights listed in the first eight amendments.  It also would include other rights expressly enumerated in the Constitution, such as the right to great writ of habeas corpus and protection from ex post facto laws.  It also would include the equal protection rights expressly granted by the privileges and immunities clause of Article IV.  Although all such rights pre-existed the Fourteenth Amendment, Congress had never before had the power to enforce them against state abridgment.  A critical omission, as members of the Thirty-Ninth Congress repeatedly pointed out.  Nor did courts have the authority to enforce the Bill of Rights against the states according to antebellum decisions like Barron v. Baltimore.  All of this changed, Bingham explained, with the adoption of the Fourteenth Amendment.


Had the petitioners in McDonald v. Chicago presented John Bingham’s theory of the Privileges or Immunities Clause, it is likely they would have received a much warmer response by the Justices.  Bingham’s view supports incorporation of the Bill of Rights without opening the door to judicial identification and enforcement of an unlimited set of individual natural rights—a door a majority of the Justices clearly seemed unwilling to go near.  Embracing Bingham’s view for the Privileges or Immunities Clause does not even require revisiting the unenumerated rights jurisprudence of the Due Process Clause—that issue can be left for another day or simply left undisturbed indefinitely.  What Bingham’s views do not support, however, is a libertarian unenumerated rights reading of the Privileges or Immunities Clause.  Perhaps that is why it was omitted.  If so, the more’s the pity.  This generation may have just lost its last best chance of convincing the Supreme Court to remedy a strained interpretation of the Due Process Clause that is a boon to the Court’s critics and an embarrassment to its friends.


Still, perhaps the Court has been right to avoid John Bingham.  Just because he had a limited view of the Privileges or Immunities Clause does not his fellows did—or that his views were shared by the public at large.  My posts of this last month are meant only to illuminate the views of the man who actually drafted the clause.  Certainly we can all agree that getting Bingham right is at least relevant to understanding the original meaning of the Privileges or Immunities Clause.  Alas, there is more work to be done.  Bingham is just one (important) piece of the puzzle.


My thanks to Dan Markel and the gang at prawfsblawg.  It has been a pleasure.

Posted by Kurt Lash on April 1, 2010 at 12:41 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The Oddest Omission in McDonald v. Chicago:


If you’ve been injured and want to know how to file your claim, consult with personal injury attorney Denver, Zaner Harden Law. They will quickly inform you of the next steps. Get full compensation for personal injury and loss with the most exceptional Denver personal injury attorney.

Posted by: Zaner Harden Law | Mar 24, 2020 4:31:37 AM

Prof. Lash, I have a late comment. I just finished reading "'This Right Is Not Allowed By Governments That Are Afraid Of The People': The Public Meaning Of the Second Amendment When The Fourteenth Amendment Was Ratified" by Cramer, Johnson and Mocsary 17:# Geo. Mason L. Rev. 823 (2010). It is available via SSRN at:


I understand that this article was cited in one of the briefs supporting the appellants in McDonald v. Chicago.

Section V. "The Meaning Of The Second Amendment Surrounding Debate And Enactment Of The Fourtheenth Amendment" of the article starts at page 855 and runs to page 861. What is amazing to me is that no reference was made to Sen. Bingham at all and only a brief reference to Sen. Howard (page 860). This is in comparison to the many references made to Sen. Bingham not only by you but others who have written extensively on the subject.

I thought I should bring this to your attention as you continue with your Part III.

Posted by: Shag from Brookline | Apr 12, 2010 2:01:15 PM

Prof. Lash, if it seems I am pressing you, it is only because your historical review is so thorough, not only with your current project (with Parts I and II completed), but also with regard to your work on the 9th and 10th Amendments; that you do not, in my view, engage in law office history as do many advocates on these subjects. I would prefer that you be thorough in your research and review rather than too quick. Perhaps the Court may delay its decision on McDonald to examine the brouhaha that followed (and continues) oral arguments to address issues raised. If the 2nd Amendment is incorporated (as I suspect it will) under the 14th Amendment, there remains the matter of states' rights limitations, which may differ substantially (from state to state and political bodies within a state) from Justice Scalia's dicta in Heller regarding limitations at the federal level. McDonald is too important for the Justices to rush to judgment; perhaps the Court might call for further briefing as with Citizens United.

Posted by: Shag from Brookline | Apr 1, 2010 11:00:10 AM

Good point about Webster and his critics--he earned the right to be counted among those who advocated freedom, but his votes muddy the picture. My primary point is only to note Bingham's lionization of Webster (which is clear from the record of the debates) and their similar views on rights and immunities of citizens of the United States.

And you are also right about the important caveat in the penultimate paragraph--and to press me for a conclusion. As important as it is to get the history right, this remains a work in constitutional originalism--an effort to identify original understanding and its relevance to contemporary application. The analysis in part III is thus critical to my own goals.

The temptation, of course, is to simply make Bingham's meaning the public meaning (or, stop after Part I and make antebellum understanding the "true" meaning of p or i). In the end, I might make such a claim, but at this point I believe there is good reason to hesitate. It is clear that other members of the Thirty-Ninth Congress had a different understanding--or tried to fix a different undeerstanding--of the Clause. This raises the possibility that public views were equally mixed. If so, what then? This is more than a question of historical evidence; it raises vexing issues of political and constitutional theory as well.

To this point I have been content to clarify the history; (1) there are historical roots to the phrase "privileges or immunities of citizens of the United States" unrelated to the language and meaning of Article IV, and (2) John Bingham himself expressly rejected attempts to link his work to Article IV. The remaining issue is whether Bingham was successful.

Posted by: Kurt Lash | Apr 1, 2010 10:15:31 AM

Prof. Lash's closing paragraph (prior to his expression of thanks) is the big caveat of his post. There indeed remains much work to be done on revealing the public understanding of the P/I clause of the 14th Amendment at the time of its ratification, if the current version of originalism is to prevail in the Court's upcoming McDonald decision. Perhaps before the Justices make up their minds by June, Prof. Lash's Part III may be available at least to their clerks.

With respect to Webster as an abolitionist, his credentials as such were heavily criticized because of his support for the Fugitive Slave Act of 1850 and related territorial acts. Much of this criticism came from Wendell Phillips, a true abolitionist. This is not to negate Webster's valuable contributions pre-1850, however. But that 1850 Act, territorial acts in the 1850s and the Dred Scott (1857) decision surely contributed to the Civil War.

Posted by: Shag from Brookline | Apr 1, 2010 7:06:11 AM

The comments to this entry are closed.