Section 1 of the Fourteenth Amendment includes the so-called Privileges or Immunities Clause, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Most scholars have come to agree that, if the Fourteenth Amendment applies the Bill of Rights to the States, it was the Privileges or Immunities Clause that was supposed to do the job. This, in turn, has set off a scholarly search for the meaning of and antecedents to the mysterious phrase, “the privileges or immunities of citizens of the United States.”
Most legal historians have, not surprisingly, pointed to a clause in Article IV, Section 2 that contains similar language. The Privileges and Immunities Clause provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
In his important new article, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, constitutional historian Kurt T. Lash identifies a different source. It turns out that treaties and treaty-related documents in the period between the founding and the Civil War repeatedly referred to the rights, privileges and immunities “of citizens of the United States.” What is more, we have contemporary explanations of what the terms were understood to mean.
Since my purpose here is to whet your appetite, not rehash Prof. Lash's entire article, I want to cut to the chase and focus on one example to which Prof. Lash points. Article III of the Louisiana Purchase Treaty provided that inhabitants of acquired territory (which included Missouri) would enjoy “all these rights, advantages and immunities of citizens of the United States”:
During the Missouri Crisis of 1819-1821, this provision became the focus of discussion and argument. Anti-restrictionists (that is, those who contended that Missouri should be admitted as a state without restriction as to the form of its state constitution) maintained that restriction violated Article III.
Among those who denied the charge was Daniel Webster, who in December 1819 authored A Memorial to the Congress of the United States, on the subject of restraining the increase of Slavery in New States to be admitted into the Union.
In the Memorial, Webster countered the Article III argument by drawing a distinction between “the rights, advantages and immunities” granted under state law and those “of citizens of the United States.” The constitution and laws of a particular state might or might not grant all sorts of rights; but “the rights, advantages and immunities of citizens of the United States” were those set forth in the federal Constitution and common to all:
Webster then went on to describe some of “the rights derived under the Federal Constitution”:
Most legal historians have, not surprisingly, pointed to a clause in Article IV, Section 2 that contains similar language. The Privileges and Immunities Clause provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
In his important new article, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, constitutional historian Kurt T. Lash identifies a different source. It turns out that treaties and treaty-related documents in the period between the founding and the Civil War repeatedly referred to the rights, privileges and immunities “of citizens of the United States.” What is more, we have contemporary explanations of what the terms were understood to mean.
Since my purpose here is to whet your appetite, not rehash Prof. Lash's entire article, I want to cut to the chase and focus on one example to which Prof. Lash points. Article III of the Louisiana Purchase Treaty provided that inhabitants of acquired territory (which included Missouri) would enjoy “all these rights, advantages and immunities of citizens of the United States”:
The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.
During the Missouri Crisis of 1819-1821, this provision became the focus of discussion and argument. Anti-restrictionists (that is, those who contended that Missouri should be admitted as a state without restriction as to the form of its state constitution) maintained that restriction violated Article III.
Among those who denied the charge was Daniel Webster, who in December 1819 authored A Memorial to the Congress of the United States, on the subject of restraining the increase of Slavery in New States to be admitted into the Union.
In the Memorial, Webster countered the Article III argument by drawing a distinction between “the rights, advantages and immunities” granted under state law and those “of citizens of the United States.” The constitution and laws of a particular state might or might not grant all sorts of rights; but “the rights, advantages and immunities of citizens of the United States” were those set forth in the federal Constitution and common to all:
The rights, advantages, and immunities here spoken of [in Article III], must, from the very force of the terms of the clause, be such as are recognized or communicated by the Constitution of the United States; such as are common to all citizens, and are uniform throughout the United States. The clause cannot be referred to rights, advantages, and immunities derived exclusively from the State Government, for these do not depend upon the Federal Constitution. Besides, it would be impossible that all the rights, advantages, and immunities of citizens of the different States, could be at the same time enjoyed by the same persons. These rights are different in different States; a right exists in one State which is denied in others, or is repugnant to other rights enjoyed in others. In some of the States, a freeholder alone is entitled to vote in elections; in some a qualification of personal property is sufficient; and in others, age and freedom are the sole qualifications of electors. In some States, no citizen is permitted to hold slaves: in others, he possesses that power absolutely; in others, it is limited.
Webster then went on to describe some of “the rights derived under the Federal Constitution”:
The obvious meaning, therefore, of the clause is, that the rights derived under the Federal Constitution, shall be enjoyed by the inhabitant of Louisiana in the same manner as by the citizens of other States. The United States, by the Constitution, are bound to guarantee to every State in the Union a republican form of government; and the inhabitants of Louisiana are entitled, when a State, to this guarantee. Each State has a right to two Senators, and to Representatives according to a certain enumeration of population, pointed out in the Constitution. The inhabitants of Louisiana, upon their admission into the Union, are also entitled to these privileges.
It is very good that such a well-esteemed legal commentator and historian as Professor Lash has concluded that the true origins of the desciptive term of the Privileges or Immunities Clause (ie., "the privileges or immunities of citizens of the United States") is not to be found in the comity clause (art. iv, sec. 2) but rather in federal treaties and statutes, such as Article III of the Louisiana Purchase Treaty of 1803. Hence Professor Lash's forthcoming article will be a worthwhile contribution to the cause of resurrecting the Privileges or Immunities Clause as being the vehicle of incorporation of some rights specified in the Bill of Rights.
ReplyDeleteHowever, out of an understandable (I hope) sense of amour propre on my part, I should like to call the readers' attention to the fact that I had anticipated Professor Lash's thesis concerning the true origins of the Privileges or Immunities Clause in my article, "The Rights, Privileges, and Immunities of the American People: A Disjunctive Theory of Selective Incorporation of the Bill of Rights" in the Whittier Law Review 7 (1985) 765-826; and in my recently published book THE CONSTITUTIONAL RIGHTS, PRIVILEGES, AND IMMUNITIES OF THE AMERICAN PEOPLE: The Selective Incorporation of the Bill of Rights, the Refined Incorporation Model of Akhil Reed Amar, Dred Scott, National Citizenship and Its Implied Privielges and Immunities, the Second Amendmen Right, and Much More (2009).
I argue in my writings that the Privileges or Immunities Clause incorporates the First Amendment Freedoms but no other right specified in the Bill of Rights, including the Second Amendment Right. On the other hand, the clause incorporates certain other constitutional rights implied by an antebellum notion of a paramount and supreme national citizenship inconsistent with an inferior and degraded status. Thus, for example, freedom of travel and migration throughout the United States and freedom from invidious racial, ethnic, and gender discrimination are embraced by the Privileges or Immunities Clause.
I respectfully submit that my book is extremely timely given the fact that the Supreme Court has under consideration the issue of the incorporation of the Second Amendment Right by the Privileges or Immunities or Due Process Clause of the Fourteenth Amendment in McDonald v. City of Chicago. Instead of an all or nothing-at-all approach to the issue of incorporation via the Privileges or Immunities Clause of the rights specified in the Bill of Rights, I advocate a version of selective incorporation that it textually probable and consistent with one of the several original understandings of the founders of the Fourteenth Amendment. I explain in my book why the Second Amendment Right is not incorporated by either the Privileges or Immunities Clause or the Due Process Clause.