THE FOURTEENTH AMENDMENT AND THE PRIVILEGES AND IMMUNITIES OF AMERICAN CITIZENSHIP. Kurt T. Lash. (1) New York: Cambridge University Press, 2014. Pp. xvii + 307. $99.00 (cloth).
The Privileges or Immunities Clause has been a puzzle. It was probably more important to those who drafted the Amendment than the Equal Protection and Due Process Clauses, yet it has played almost no role in judicial enforcement of the Fourteenth Amendment. Even in the hands of originalists, the Clause eludes consistency, being described as everything from an inkblot to a guaranty of our most important liberties. (3) And, despite the urging of several scholars, the Supreme Court has refused to pull the Clause down from its attic of forgotten constitutional odds and ends. (4)
With The Fourteenth Amendment and the Privileges and Immunities of Citizenship, Kurt Lash hopes to solve this puzzle and give courts a "historically plausible and judicially manageable interpretation" (p. x). Lash has established himself as one of the foremost originalist scholars, (5) and in The Fourteenth Amendment he develops a detailed and thorough originalist analysis of the Privileges or Immunities Clause of the Fourteenth Amendment. The book will no doubt become one of the principal works on the Clause and has already garnered high praise. (6)
The Fourteenth Amendment is also provocative. Originalist analysis, Lash argues, shows that the Clause was understood to apply the Bill of Rights to the states, but otherwise leaves issues of rights and privileges up to state courts and legislatures. Thus Lash is at once expansive in arguing that the Clause fully incorporates the Bill of Rights and restrictive in denying a role for the Clause in securing unenumerated fundamental rights. In establishing this thesis, Lash challenges some of the key conclusions of leading scholars. He also proposes what some have argued is not possible: a coherent public-meaning originalist analysis of the Reconstruction Amendments. (7) The Fourteenth Amendment makes a solid case that the privileges and immunities of citizens of the United States was an antebellum legal term-of-art conceptually distinct from other privileges and immunities of citizenship. Lash also presents an impressive study of John Bingham's views on the privileges of United States citizenship and their relationship to natural rights and equality. In addition, Lash nicely uses press and campaign materials to highlight the election of 1866 as a critical constitutional moment. Through each of these steps Lash firmly establishes that the Bill of Rights was meant (by drafters and the public) to be applied to the states by the Amendment.
It is in the second half of his thesis--that the Privileges or Immunities Clause was understood to do no more than apply the Bill of Rights to the States--that The Fourteenth Amendment reveals its weaknesses. The Fourteenth Amendment suffers from a flaw not uncommon in originalism: in order to give a fixed meaning to facially vague constitutional language, The Fourteenth Amendment imposes a false precision and clarity on a historical record that is ambiguous and conflicted. At each stage of his analysis, Lash makes important choices--of emphasis, selection, and interpretation--that are questionable and undermine his eventual thesis.
More fundamentally, however, The Fourteenth Amendment reflects the failure of current versions of originalism to address the complexity of the concept of "public" as it existed in the nineteenth century. In his effort to apply the theory of public-meaning originalism, Lash presents a limiting and historically inaccurate concept of the "public." Lash's public, it turns out, was comprised of the voting population as of November 1866. This ignores important contemporaneous perspectives of African-Americans and feminists--the people for whom inclusion or exclusion from the privileges of citizenship was most important. When combined with Lash's marginalization of voices within the Republican Party who at times articulated some of the perspectives of African-Americans and women, the "public" meaning that results is, not surprisingly, restrictive and limited.
Lash describes a public meaning for the Clause that excludes any unenumerated fundamental rights and shifts equality concerns away from citizenship and toward the Equal Protection Clause. Although such a view is a plausible description of the views of conservatives and moderates in 1866, it cannot be described as the public meaning. A far more robust idea of the Clause, and of the Reconstruction Amendments, was articulated by radical white Republicans, African-Americans, and feminists. This view encompassed a forward-looking, natural-rights constitutionalism that potentially led in quite different directions than Lash's interpretation permits. There was no singular meaning for the Clause among its drafters, or the voters in the fall of 1866, or the ratifiers in 1867-68, and certainly not among all the citizens of the United States. Indeed, there was not even a singular "public" among these groups, given the widespread exclusions from politics, law, and the (mainstream) press at the time. Because The Fourteenth Amendment does not engage such complexity in the historical structure of the public and public meaning, it cannot capture the hermeneutic range and potential for the Privileges or Immunities Clause or the Amendment as a whole.
This Essay proceeds in three parts. In Part One I summarize The Fourteenth Amendment. The book is far richer and more nuanced than any short summary can capture, and my hope is merely to set out the main points of Lash's original and thought-provoking analysis. Part Two presents what might be described as an internal critique. Lash's analysis is subject to criticism from within an originalist framework, particularly in his determination that open-textured natural or fundamental rights are not relevant to the meaning of the Clause. Unlike originalist critiques, however, I conclude not by suggesting that Lash is wholly wrong and some other interpretation wholly right, but by pointing out that multiple interpretations were available and were important to drafters and the legal and voting publics. Part Three sets forth the more fundamental critique, which is that the very conception of the "public" and public meaning is flawed and that such flaws operate to exclude important meaning communities, such as African-Americans and feminists. I conclude with some thoughts on how such perspectives can be incorporated into a richer, and more accurate, idea of public meaning originalism.
Originalists have disagreed significantly about the scope of the Privileges or Immunities Clause. On the one hand some scholars contend that the Clause merely ensures equal treatment for citizens of the privileges states may provide. (8) Other scholars argue that the Clause protects and nationalizes natural or fundamental rights beyond those listed in the Bill of Rights. (9) And still others declare the Clause a "riddle" or an "inkblot" with no inherent content at all. (10)
Lash stakes out a middle ground in this debate. According to him, the Privileges or Immunities Clause had a specific and circumscribed meaning that included the Bill of Rights and any other right specifically listed in the Constitution (including interstate equality from the Comity Clause), but excluded unenumerated fundamental (or natural) rights, left intrastate equality concepts to the Equal Protection Clause, and retained a substantial portion of antebellum federalism (pp. xi, 232 n.3, 300). This is a relatively unusual view of the Clause, since most interpretations that support Bill-of-Rights incorporation also contend that other fundamental rights, such as rights to contract and to own property, were also included."
Lash supports this interpretation by analyzing both antebellum legal usages and the Amendment's drafting history. First, analyzing antebellum referents for the Clause, Lash rejects the belief of "almost all current" scholars that the Fourteenth Amendment's Privileges or Immunities Clause was based on the Privileges and Immunities Clause of Article IV (the Comity Clause) and the exposition of that Clause by Justice Washington in Corfield v. Coryell. (12) Instead he argues that the privileges and immunities of United States citizenship (as opposed to state citizenship or citizenship generally), operated as a legal term-of-art rooted in United States territorial cession treaties where residents of the transferred territories transitioned from being subjects of foreign sovereigns to citizens of the United States (pp. 47-52). This treaty language ("the enjoyment of all the rights, advantages, and immunities of citizens of the United States") was, according to Lash, consistently identified with the protections of the Constitution and distinguished from state privileges or natural rights (pp. 52-59).
Lash also challenges the conventional readings of key cases, particularly Corfield. Lash suggests that the vast majority of cases analyzing the Comity Clause adhered to a consensus view "that the privileges and immunities of citizens in the states differed from state to state," that only a subset of those privileges would qualify for interstate protection of visitors, and that the privileges were only those secured or conferred by states, not ones determined by natural law and subject to a more general recognition (pp. 20-47). In particular, Lash contends that Corfield followed this consensus view and did not support the idea of federal or national privileges based on natural rights. Other cases followed this reading of Corfield, and it was only with the debates among Republicans in the Reconstruction congress that Corfield came to represent a nationalized fundamental rights position (p. 47).
Lash's second support for his limited Bill-of-Rights reading is also boldly unconventional: he argues that the primary author of...