THE PRIVILEGES OR IMMUNITIES CLAUSE, ABRIDGED: A CRITIQUE OF KURT LASH ON THE FOURTEENTH AMENDMENT.

• Author: Barnett, Randy E.

The Privileges or Immunities Clause of the Fourteenth Amendment reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." (1) Upon confronting this language, the first question most ask is what exactly are the "privileges or immunities of citizens of the United States"? It was this very question that Justice Ruth Bader Ginsburg put to attorney Alan Gura during oral argument in McDonald v. City of Chicago, (2) as he was urging the Court to revive the Privileges or Immunities Clause to protect the right to keep and bear arms. (3) "But I really would like you to answer the question that you didn't have an opportunity to finish answering, and that is: What other... rights? What does the privileges and immunities of United States citizenship embrace?" (4)

On May 23, 1868, Jacob Howard, senator from Michigan, former attorney general of Michigan, and the designated sponsor of the Fourteenth Amendment in the Senate, delivered a comprehensive and widely reported address in which he addressed this question. (5) According to Howard, the "privileges or immunities" of U.S. citizens consisted of two categories of "fundamental guarantees." (6)

In the first category were "the privileges and immunities spoken of in the second section of the fourth article of the Constitution." (7) Howard read a very lengthy passage from Justice Washington's opinion in the 1823 case of Corfield v. Coryell, (8) in which Washington defined the "privileges and immunities" protected by Article IV, Section 2, as rights "which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign." (9)

Washington went on to explain that privileges and immunities may... be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. (10) He then listed several "fundamental" rights that fell under these "general heads," some of which rights are "[un] enumerate [d]," in the sense that they do not appear in the federal Constitution in itemized form--such as the rights to travel and to be free from discriminatory taxation. (11)

After reading from Washington's Corfield opinion, Howard identified a second category of fundamental rights: "To these privileges and immunities, whatever they may be--for they are not and cannot be fully defined in their entire extent and precise nature--to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution." (12)

Then, after providing a list (13) of enumerated personal rights, Howard summarized his understanding of the two categories of "privileges or immunities": "Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution...." (14)

Howard explained that an amendment was necessary to protect these privileges and immunities because, at present, "[t]hey d[id] not operate in the slightest degree as a restraint or prohibition on State legislation." (15) So, "[t]he great object of the first section of this amendment is... to restrain the power of the States and compel them at all times to respect these fundamental guarantees." (16)

It would seem clear that Howard understood the "privileges or immunities of citizens of the United States" (17) to include (1) the set of unenumerated rights that Corfield v. Coryell associated with the "privileges and immunities" of Article IV, Section 2; and (2) the personal rights enumerated in the first eight amendments to the Constitution, and that none of the "fundamental guarantees" in this "mass" may be abridged by states. (18) This is the conventional way in which scholars have read Howard's language. (19)

Howard's role as spokesman for the Joint Committee on Reconstruction was a product of happenstance. William Pitt Fessenden, the chairman of the committee, had been ill, and Howard spoke in his place. (20) Indeed, Howard had voted against the language that he was charged with explaining--he preferred language of an earlier draft that was more expansive in certain respects and more narrow in others. (21)

Howard is difficult to pin down ideologically. Conventionally characterized as a "radical" because of his early and energetic support for black suffrage and his hard-line stance on the readmission of former Confederate states into the Union, he nonetheless "had a deep respect for the structure of federalism and was generally a stickler for constitutional regularity." (22)

If Howard was a reluctant witness, however, there is no reason to doubt that he was a reliable one. His interpretation of the committee's handiwork was not contested by any senator. (23) Indeed, so associated did the Fourteenth Amendment become with Howard's interpretation of it in public discourse, it was often referred to simply as the "Howard Amendment." (24)

It would, therefore, take a very bold advocate to claim that the original meaning of the "privileges or immunities" of U.S. citizens did not "restrain the power of the States" to abridge the unenumerated (25) rights of citizens that were listed by Washington and Howard or "compel [states] at all times to respect these... guarantees." (26) Were this claim accurate, it would follow either that Jacob Howard misunderstood the Privileges or Immunities Clause, or that scholars have long misunderstood what Jacob Howard said about the Privileges or Immunities Clause.

Professor Kurt Lash is so bold. In a series of painstakingly researched articles (27) that have culminated in a book, (28) Lash has proposed that the original public meaning of the Privileges or Immunities Clause protects enumerated personal rights--and only enumerated personal rights. (29) According to Lash, the Privileges and Immunities Clause of Article IV, Section 2 was, in antebellum jurisprudence, understood to be a mere "Comity Clause" that confers only a singular enumerated right of sojourning citizens of a given state to be free from discrimination with respect to their fundamental civil rights when traveling in another state. (30) And it was this singular right to which Howard was referring in his speech.

According to Lash, therefore, Howard's two categories of "privileges or immunities"--unenumerated and enumerated--receive two different levels of protection against state abridgment. The enumerated rights listed in the first eight amendments (and elsewhere) are protected absolutely. (31) States are free, however, to abridge the unenumerated privileges and immunities identified by Justice Washington in Corfield, provided they do not discriminate against out-of-staters when either extending or regulating the exercise of those privileges and immunities.

Crucially, on Lash's account, because the original meaning of the Privileges and Immunities Clause in Article IV allowed states to enact laws that discriminate with respect to the unenumerated rights of their own citizens, so too does the Privileges or Immunities Clause of the Fourteenth Amendment. On Lash's account, then, scholars are correct to concentrate their attention on Howard's explanation, as it provides "the most likely original meaning of the text." (32) But, scholars have generally misunderstood that explanation.

This has not always been Lash's view. Around the turn of the millennium, he expressed sympathy for the view that the Clause afforded absolute protection to both enumerated and unenumerated rights. (33) In 2009, he announced that he was "no longer convinced" that Representative John Bingham of Ohio--the Clause's principal framer--"read the Privileges or Immunities Clause to have nationalized more rights that [sic] those listed in the first eight amendments." (34) Today, he holds that the Clause nationalized all enumerated rights--not merely those in the first eight amendments--but only enumerated rights.

As we will explain, the credibility of any proposed interpretation of the Fourteenth Amendment must be measured, in part, by considering how well it accounts for the Civil Rights Act of 1866. This landmark legislation protected the unenumerated rights "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property." (35)

It is generally accepted that the Fourteenth Amendment was designed to constitutionalize these rights so they could not be repealed by a future Congress; to empower the federal courts to enforce these rights; and to empower Congress to enact legislation designed to protect these rights. Indeed, in 1870, Congress reenacted the entire Civil Rights Act after adoption of the Fourteenth Amendment just to be sure. (36)

Lash's constricted reading of "the privileges or immunities of citizens of the United States" makes it hard for him to explain how the Fourteenth Amendment empowered the federal government to protect unenumerated rights and thus how it secured the constitutionality of the 1866 Act. The 1866 Act, after all, protected against far more than discrimination against citizens sojourning in another state--it guaranteed to all "citizens" the same bundle of listed rights "as [are] enjoyed by white citizens," (37) full stop. The Enforcement Act of 1870 (38) reenacted the 1866 Act and guaranteed the equal enjoyment of a slightly smaller bundle (39) of rights to "all persons." (40) Unless he wants to deny the constitutionality of this legislation, Lash...