[I]n a given State, every citizen of every other State shall have the same privileges and immunities--that is, the same rights--which the citizens of that State possess.
--Lemmon v. People, 20 N.Y. 562, 608 (1860).
The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.
--CONF. CONST. art. IV, [section] 2, cl. 1 (1861).
Resolved, That we deeply sympathize with those men who have been driven, some from their native States and others from the States of their adoption, and are now exiled from their homes on account of their opinions; and we hold the Democratic Party responsible for this gross violation of that clause of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.
--Supplemental Resolution proposed by Ohio's Joshua Giddings and unanimously adopted by the Republican National Convention of 1860. (1)
Congress shall provide by law for securing to the citizens of each State the privileges and immunities of citizens in the several States. (2)
The Fourteenth Amendment to our Constitution provides, in part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (3) This "Privileges or Immunities Clause" has been called "the darling of the professoriate." (4) Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. (5)
This Article proceeds from the same professorial ardor. Still, relative to many other treatments, this Article is both more modest and more ambitious. On the one hand, I do not propose to offer a full account of the original meaning of the Clause. On the other, I do aim to help build a genuine scholarly consensus by presenting compelling evidence that has been, for the most part, largely overlooked by contemporary scholars. (6)
The focus of this particular study is the interpretation of the "privileges and immunities of citizens" offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the eve of the Civil War. This study proceeds in four parts.
First, the Article defends the relevance of this inquiry. I am to refute the conclusion of Justice Miller and (more recently) of Justice Thomas that the "privileges and immunities of citizens in the several states" secured by Article IV were generally understood to be sharply distinct from the "privileges or immunities of citizens of the United States" secured by the Fourteenth Amendment. Rather, the authors of the Clause largely believed that it would provide greater security to the privileges guaranteed in Article IV.
Second, the Article provides a brief account of the understanding of the Privileges and Immunities Clause before 1857, concluding that the provision's original understanding was ambiguous and generated only sporadic (though important) national controversy and commentary. As a result, up to 1857, the Privilege and Immunities Clause's meaning remained largely obscure, even among jurists.
Third, the Article explains that from 1857 to 1861, in the course of national debates, at least three contrasting interpretations rose to substantial public prominence: (1) a pro-slavery, absolute-rights reading; (2) an absolute-rights reading endorsed by Republicans, which sometimes incorporated claims of black citizenship; and (3) a strictly interstate-equality understanding. The prominence of the first two readings represented radical developments relative to the third reading, a reading that had prevailed in the past and would prevail again in courts in the future. Consequently, there arose a substantial gap between the judiciary and the polity as a whole as to the meaning of the constitutional privileges of citizenship.
Fourth, this Article concludes by noting the ways in which this antebellum evidence illuminates both (1) the original understanding of the "privileges [and] immunities of citizens of the United States" (7) secured by the Fourteenth Amendment and (2) the vulnerability of this Amendment to judicial misconstruction in the Slaughter-House Cases. (8)
THE IDENTITY OF THE "PRIVILEGES AND IMMUNITIES" SECURED BY ARTICLE IV OF THE FOURTEENTH AMENDMENT
According to Justice Miller's majority opinion in the Slaughter-House Cases, the privileges guaranteed by Article IV are sharply distinct from those secured by the Fourteenth Amendment: the former involve the rights granted and established by the laws of the respective states, while the latter are rights created by federal law, including the Federal Constitution. (9) In McDonald v. City of Chicago, Justice Clarence Thomas, with express reliance on the work of Professor Kurt Lash, made a comparable claim. (10) If Justices Miller and Thomas are right, a consideration of the antebellum understanding of the Privileges and Immunities Clause would seem merely peripheral, only remotely relevant to an inquiry into the original understanding of the Fourteenth Amendment.
There is, however, abundant evidence that the drafters of the Amendment believed that the privileges of citizenship to be protected therein were largely identical with those already embraced by Article IV. (11) As is well known, an initial draft of the Clause, as proposed by the Joint Committee on Reconstruction, would have empowered Congress "to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States." (12) This proposal seemed the answer to the Senate's resolution directing the Committee to establish, by constitutional amendment, congressional power to enforce certain existing constitutional provisions, including the Privileges and Immunities Clause. (13) And during Congress's deliberations over the Amendment, a leading drafter and proponent, Ohio Congressman John Bingham, explained that Article IV protected the privileges and immunities of citizens of the United States, (14) an interpretation he had offered at least twice in Congress during the previous decade. (15) Several other participants also equated these privileges, including fellow Ohioans Samuel Shellabarger, (16) William Lawrence, (17) and John Sherman, (18) as well as Senators Jacob Howard and Luke Poland, of Michigan and Vermont, respectively. (19) And in the few years following their vote for the Amendment, both Bingham and Howard reiterated the equivalence between Article IV privileges and the privileges of U.S. citizenship. (20) In sum, as David Bogen has concluded, "[t]he debates leave no room for doubt that the privileges or immunities clause of the Fourteenth Amendment referred to the same privileges and immunities as Article IV," for "[e]very speaker" that discussed the relationship between the clauses "stated that the Fourteenth Amendment clause was derived from Article IV." (21)
Further, during the ratification debates, supporters said flatly that the Privileges or Immunities Clause was "intended for the enforcement of [the Privileges and Immunities Clause]." (22) As James Bond has noted in his extensive surveys of the ratification debates, supporters of ratification (at least in the South) never stated nor even "implied that Section 1 guaranteed only those privileges and immunities peculiar to national citizenship, in contradistinction to [privileges] peculiar to state citizenship." (23) These privileges were already in the Constitution, to be sure, but in Article IV. (24)
The identification of Article IV rights as privileges of American citizenship was not idiosyncratic or novel to the Reconstruction era. Many leading antebellum Americans, of various parties, identified Article IV's privileges as the "privileges and immunities of citizens of the United States" or some variant thereof. During the 1858 Senate campaign, for instance, Abraham Lincoln called these privileges the "rights of a citizen of the United States," (25) while Stephen Douglas labeled them the "rights and privileges awarded to citizens of the United States." (26) A year later, Virginia's governor Henry Wise reassured a Massachusetts abolitionist that she had a right to travel in Virginia because Article IV "guaranties to you the privileges and immunities of a citizen of the United States in the State of Virginia" including the right to travel "for any lawful and peaceful purpose." (27)
Some antebellum jurists used similar language to explain the Clause. One authority was Charles O'Conor, one of the most celebrated attorneys in New York (and future presidential candidate and counsel for Jefferson Davis). (28) Having been hired by the Virginia legislature to defend the interests of a Virginia slaveowner sojourning in New York, (29) O'Conor argued that the Clause protected "the privileges of citizens of the United States"--that is, not "the privileges of citizens of the particular State in which they are wayfarers, or of the State in which they are domiciled, but the general privileges of a citizen of the United States." (30) In Dred Scott v. Sandford, both Chief Justice Taney and Justice Nelson suggested a similar reading. (31)
Other prominent northern jurists likewise affirmed that Article IV secured the privileges of national citizenship. While Congress was drafting the Fourteenth Amendment, Indiana's Supreme Court followed Justice Curtis's dissent in Dred Scott (32) by calling these rights the "privileges and immunities of general citizenship of the United States," (33) Perhaps most notably, two decades earlier, Justice Nathaniel Reed, of Ohio's Supreme Court, had interpreted the Clause to read as...