THE ENUMERATED-RIGHTS READING OF THE PRIVILEGES OR IMMUNITIES CLAUSE: A RESPONSE TO BARNETT AND BERNICK.

• Author: Lash, Kurt T.

INTRODUCTION

In 1871, John Bingham explained the meaning of the Fourteenth Amendment's Privileges or Immunities Clause--a clause Bingham himself drafted and had successfully convinced his colleagues to add to the Fourteenth Amendment in 1866. According to Bingham, the privileges or immunities of national citizenship were not those protected by the Privileges and Immunities Clause of Article IV. Instead, the rights of national citizenship were those "guarantied by the amended Constitution and expressly enumerated in the Constitution." (1) Bingham's explanation tracks what I have called the "enumerated-rights" reading of the Privileges or Immunities Clause. (2) This reading understands "the privileges or immunities of citizens of the United States" as involving only those rights enumerated in the citizen's Constitution. This includes, but is not limited to, those rights enumerated in the Bill of Rights. In a series of books and articles published over the last few years, I have presented historical evidence suggesting that the public likely shared Bingham's understanding when they discussed and ratified the Fourteenth Amendment in the years 1866 to 1868.

In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, (3) Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the "fundamental-rights" reading of the Privileges or Immunities Clause. (4) This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade. (5)

Rather than agreeing with John Bingham, Barnett and Bernick declare that they "side with Jacob Howard." (6) This is somewhat surprising, given that Republican Senator Jacob Howard opposed Bingham's Privileges or Immunities Clause, (7) voted against submitting it to Congress for debate, (8) and favored a far narrower version of Article IV, Section 1 than the one drafted by Bingham and ratified by the people of the United States. (9) One presumes that Barnett and Bernick side with Howard, not because of his constitutional preferences, but because of one particular speech that Howard delivered to the Senate on May 23, 1866. On that day, acting as a last-minute stand-in for William Pitt Fessenden, (10) Jacob Howard introduced the Fourteenth Amendment to the U.S. Senate. (11) In his speech, Howard explained that the privileges and immunities of citizens of the United States included rights secured by the Comity Clause and described in cases like Corfield v Coryell, (12) as well as rights secured "by the first eight amendments of the Constitution." (13)

In my writing on the subject, I explain that Howard's speech is perfectly consistent with the enumerated-rights reading of the Privileges or Immunities Clause. Howard mentioned only enumerated constitutional rights as protected privileges or immunities. The right protected by the enumerated Comity Clause involves nothing more than the right of sojourning citizens to receive equal treatment when it comes to a limited set of state-secured rights (those designated as "fundamental" state-secured rights). (14) The relative protection provided sojourning citizens by the Comity Clause, in other words, is simply one of a number of enumerated constitutional rights Howard named as protected by the Privileges or Immunities Clause.

Barnett and Bernick insist that I have misread Howard's speech. According to Barnett and Bernick, Howard was not simply naming enumerated constitutional rights; he was declaring that the Privileges or Immunities Clause protected an unenumerated set of absolute "fundamental" rights. Moreover, they insist that this was the original public understanding of the Privileges or Immunities Clause. Although Barnett and Bernick decline in their article to explain exactly how the historical record supports their theory, they nevertheless insist that the historical record does not support my enumerated-rights reading of the Privileges or Immunities Clause.

The substance of their argument involves five basic claims:

(1) The antebellum historical record does not contain evidence of a widespread understanding of the term "privileges and immunities of citizens of the United States" as referring solely to constitutionally enumerated rights.

(2) There is no evidence that anyone in the Thirty-Ninth Congress understood the term "privileges and immunities of citizens of the United States" as referring solely to constitutionally enumerated rights. This includes the man who drafted the Clause, John Bingham.

(3) It is anachronistic to view Reconstruction-era references to the Bill of Rights as referring solely to constitutionally enumerated rights since there was no fixed understanding of the term "Bill of Rights" during Reconstruction.

(4) There is no evidence that those supporting the proposed amendment during the ratification process understood the Privileges or Immunities Clause as solely referring to enumerated rights. Otherwise advocates would have used this understanding to defeat claims that the proposed amendment guaranteed the unenumerated right to vote.

(5) The enumerated-rights reading of the Privileges or Immunities Clause must be incorrect since such a reading would not authorize legislation like the 1866 Civil Rights Act.

In this Article, I address each of these arguments in turn. I realize that Barnett and Bernick also make a number of claims regarding the postadoption historical record. I have addressed such evidence elsewhere, and length constraints prevent my repeating those arguments here. Nor is there need to do so. All postratification evidence is necessarily weak as a source of original understanding. The substantial body of preratification evidence provides sufficient guidance for determining the original understanding of the Clause--sufficient, that is, unless one is seeking a different meaning. For those interested, one of the clearest examples of the enumerated-rights reading of the Privileges or Immunities Clause is John Bingham's 1871 speech explaining the Clause to his colleagues--a speech I quoted in the opening of this Article. (15) For the purposes of this Article, I am content to rest my case on an analysis of preratification evidence. The fact that Barnett and Bernick insist on relying on postratification evidence simply illustrates the weakness of their argument.

One final prefatory note. In their canvass of almost everything I have written over the years on this subject--from books to articles to short essays to blog posts--Barnett and Bernick repeatedly point out that, over time, I have changed my views on a number of matters relating to the Privileges or Immunities Clause and the 1866 Civil Rights Act. Of course I have. As I continued to research and uncover the original history of the Fourteenth Amendment and the Thirty-Ninth Congress, I found myself abandoning or modifying some of my earlier thoughts about that history. It would be rather remarkable (and rather suspicious) if this were not the case. However much I might wince at some of my early speculations about the complicated events of Reconstruction, I am nevertheless deeply grateful that I have worked at institutions that have given me the time and support necessary to continue my investigations and increase my understanding of this extraordinary period of legal and constitutional creativity.

I. THE ANTEBELLUM PERIOD

Determining the communicative meaning of 1866 legal texts containing the terms "privileges" and "immunities" requires an investigation of how these terms were understood in the period leading up to the Civil War. This is because these terms and phrases were not wholly new in 1866, but had been the subject of substantial discussion and debate between the Founding and the Civil War.

My investigation of the antebellum usage of the terms privileges and immunities reveals that they were used generally to refer to specially conferred rights or, as I put it, "particular rights conferred on a certain group or a particular institution," rather than "natural rights belonging to all people or all institutions." (16) This specially conferred right understanding of privileges and immunities remained common right up to the time of the ratification of the Fourteenth Amendment. For example, according to Judge George W. Paschal in his influential annotated Constitution of the United States, "[p]rivileges are special rights belonging to the individual or class, and not the mass." (17) Barnett and Bernick do not directly dispute this well-supported antebellum understanding of "privileges and immunities" as specially conferred rights. Instead, they suggest that the distinction between specially conferred rights and natural rights "might not be as sharp as Lash makes it out to be." (18) Here, they cite the work of Professor Eric Claeys on Blackstone's use of the terms "privileges" and "immunities." (19) But Claeys by his own admission focuses on Blackstone's use of the terms "privileges" and "immunities" and texts found in colonial charters. (20) Claeys goes out of his way to say that he does not explore antebellum American usage of the terms and that "a complete analysis of privileges and immunities would need to determine whether the terms evolved in meaning from 1600 to 1868." (21) According to Claeys, antebellum study of these terms is important because "[i]t is also probable that American usages of privileges and immunities evolved significantly from 1766 to the post--Civil War period." (22) In sum, while Professor Claeys's work on Blackstone is interesting, (23) it has nothing to do with antebellum usage of the term privileges and immunities, much less undermine my claims regarding antebellum usage of the same.

The...