Saturday, November 03, 2007

Justice Taney's Understanding of the "Privileges and Immunities of Citizens"

Justice Taney's discussion in Dred Scott as to whether free blacks could be "Citizens" under Article III, Section 2 is fascinating for a number of reasons. What I find most interesting about it is that Taney inadvertently sheds valuable light on the contemporary (1857) understanding of the meaning of the phrase "privileges and immunities."

The original Constitution contained separate references to the term "Citizen" in Articles III and IV. The provision at issue in Dred Scott was Article III, Section 2, which defined the jurisdiction of federal courts to include, among other things, "Controversies . . . between Citizens of different States."

In addition, Clause 1 of Article IV, Section 2 contains what is known as the Privileges and Immunities Clause. It states, quite simply, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Originally, this clause seems to have been intended to prevent states from discriminating against travelers from other states. For example, if a state permitted its citizens to engage in an occupation, it could not bar out-of-staters from doing so. On the other hand, it did not give out-of-staters any additional rights. If a state forbade the distribution of abolitionist literature, the ban applied to travelers from other states and the state's own citizens alike.

By 1857, however, Taney clearly understood the Privileges and Immunities Clause to convey additional, substantive rights. He assumed that, if free blacks were "Citizens" under Article III, then they must also be "Citizens" under Article IV. But free blacks could plainly not be Article IV "Citizens" precisely because they would then be entitled to the "privileges and immunities" of citizens as Taney understood them. That was unthinkable:
It cannot be supposed that they [the original thirteen states] intended to secure to them [blacks] rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, [then they would be] entitled to the privileges and immunities of citizens . . ..

So what rights did Taney believe that the Privileges and Immunities Clause conveyed? Here is what he says:
For if [blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

This passage reveals that Taney believed that "privileges and immunities of citizens" included, at a minimum, freedom of speech and assembly and the right to bear arms -- rights we customarily associate with the First and Second Amendments, and a right to go wherever one pleased at any hour of the day or night.

Nine years later, Senator Jacob Howard expressed a similar understanding of the "privileges or immunities" referred to in Section 1 of the then proposed Fourteenth Amendment.

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