A new paper by Kurt Lash is always a treat. I haven't read it yet, but Prof. Lash has turned from the Ninth, Tenth and Eleventh Amendments to the Fourteenth Amendment: The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art. Here's the abstract:
Prof. Lawrence Solum comments:
Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice [Bushrod] Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV. According to this view, Justice [Samuel Freeman] Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.
A close analysis of antebellum law, however, suggests that Justice Miller’s approach was faithful to long-standing legal doctrines regarding the meaning of Article IV and a distinct category of rights known as the “privileges and immunities of citizens of the United States.” As of Reconstruction, Article IV’s protection of “privileges and immunities of citizens in the several states” was broadly understood as providing sojourning citizens equal access to a limited set of state-conferred rights. The “privileges and immunities of citizens of the United States,” on the other hand, was an accepted term of art which referred to those rights conferred upon United States citizens by the Constitution itself. Even as the country came apart over the issue of slavery, slave-state advocates and the proponents of abolition both expressly maintained the distinction between Article IV and national privileges and immunities. In the Thirty-Ninth Congress, John Bingham, the drafter of Section One, insisted that this distinction informed the meaning of the final draft of the Fourteenth Amendment. According to Bingham, the Privileges or Immunities Clause protected “other and different privileges and immunities” than those protected by Article IV. Understanding the roots of this distinction in antebellum law helps illuminate Bingham’s explanation of Section One, and the likely reception of the Privileges or Immunities Clause by the public at large.
Prof. Lawrence Solum comments:
This important new paper by Lash should cause quite a stir. Lash located the origins of the phrase "privileges or immunities of citizens of the United States" in pre-civil-war sources such as the Louisiana Cession Act of 1803 and provides strong evidence that this phrase was a term of art with a meaning that was quite separate and distinct from the meaning of the privileges and immunities clause of Article IV, which itself had a more complex interpretive history than the recent emphasis of Corfield v. Coryell would suggest. This is an important article, and essential reading for anyone interested in the 14th Amendment or fundamental rights jurisprudence. Highly recommended. Download it while its hot.