John Bingham's Epiphany

The second part of Lawprof Kurt T. Lash's "three-part investigation of the origins of the Privileges or Immunities Clause" is out at SSRN: The Origins of the Privileges or Immunities Clause, Part II: John Bingham's Epiphany. I haven't read it yet, but here's the abstract:

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 Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

This article, the second in a three-part investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States” — a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.

The first secion of Prof. Lash's study, which was published on SSRN last year, is The Origins of the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an Antebellum Term of Art.

UPDATE: Prof. Lash has published a post on his article at PrawfsBlawg: Alternative Interpretations of the Privileges or Immunities Clause - and desperately seeking John Bingham.

The Rights, Advantages and Immunities of Citizens of the United States

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”:

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.

Kurt Lash on the Privileges or Immunities Clause

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:

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.

Addendum:

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.

Two Articles

Haven't read either of them yet, but here are two articles on SSRN that look interesting.

The first deals with Strader v. Graham, an 1851 Supreme Court case concerning slavery and slave freedom that the Supreme Court might, and perhaps should, have used to decide Dred Scott six years later. Here's the abstract:

In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court.

After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent a few years later when the Court considered the freedom claim of another slave, Dred Scott, whose case would produce perhaps the most important decision ever handed down by the U.S. Supreme Court.

The key issue in Dred Scott - how, if at all, a Negro slave could obtain his freedom by spending time on free soil - had also been considered by the Court in prior cases. This Article deals with one of these, Strader v. Graham, 51 U.S. 82 (1851), the case brought by the Kentucky businessman whose slaves escaped on the defendants’ steamboat and the only Kentucky slave case ever to reach the Supreme Court.

This Article provides a detailed description of Strader, including its factual background, its reflection of Kentucky slave law in the first half of the nineteenth century, and its significance for Dred Scott and other subsequent slave-related matters. Part I provides an overview of Kentucky slave law as it evolved up to the time of the Strader litigation. Part II describes Strader’s factual background and the Kentucky court decisions it produced. Part III covers the Strader case in the U.S. Supreme Court. Part IV deals with post-Strader events, including a review of the Dred Scott case and the role that the Strader decision played in that litigation. Part V provides some concluding observations about how the Strader case reflected the role of slavery, law, and lawyers in antebellum Kentucky and what Strader and Dred Scott might teach us in the modern era.

The second article addresses one aspect of the so-called "incorporation" debate -- that is, did Section 1 of the 14th Amendment "incorporate" the Bill of Rights. The article looks at contemporaneous newspaper coverage to determine whether the reading public would have understood this to be an aim of Section 1:

For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment “incorporated” the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed “privileges” and “immunities” gave no hint of a connection with the Bill of Rights.

Add It to the List

For those of you interested in the incorporation debate -- that is, whether some or all of the first eight amendments were intended to be incorporated into the Fourteenth Amendment. and thus applied against the states, this looks like an interesting addition: Bryan H. Wildenthal, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-73. Here's the abstract:

This Article is part of a Symposium, "The Fourteenth Amendment and the Bill of Rights: What Have We Learned? Why Does It Matter?" (University of San Diego School of Law, Center for the Study of Constitutional Originalism, Jan. 7, 2009). The general topic of the Symposium, and the articles growing out of it, is the so-called "incorporation debate." That debate concerns whether and to what extent the Bill of Rights (originally applicable only to the federal government) has properly been "incorporated," "enforced," "applied," or "nationalized" (pick your terminology) against the states. Everyone agrees that such a goal was embraced by some leading Reconstruction Republicans, such as Rep. John Bingham and Sen. Jacob Howard. But scholars continue to debate whether (or how broadly) the idea was shared in Congress, out in the states during the ratification process, or among the bench, bar, press, and public generally. This issue has become newly current given speculation that the Supreme Court, in the wake of District of Columbia v. Heller, 128 S. Ct. 2783 (2008), may apply to the states the Second Amendment right to bear arms.

The particular focus of this Article is on what may be learned from the scholarly and press commentary on the Amendment from 1867 to 1873 (up to before the Slaughter-House Cases decided in April 1873). How much weight should such commentary (mostly post-ratification) have as a general matter? Does the commentary support the incorporation thesis or undermine it? The writers considered include well-known legal scholars of the era such as Cooley, Bishop, Wharton, Pomeroy, Farrar, and Paschal, and also a less-well-known but arguably significant figure, Samuel Smith Nicholas of Kentucky. Articles in "The Nation," then a leading Republican-oriented newsmagazine (founded in 1865), and some other news articles, are also considered. While this Article has sought to be thorough in assessing relevant scholarly discussions published in book or law review form during the period covered, it does not exhaustively survey all of the archival newspaper or magazine materials that have recently become more readily available. More work remains to be done in future articles.

This Article concludes that, on the whole, the commentary during this period supports the thesis that nationalizing the Bill of Rights was part of the original public meaning of the Amendment, though the evidence is certainly mixed and others may draw different conclusions. The Article offers some cautious and tentative thoughts about the broader theory of originalism, but generally remains focused on the historical details.

Other articles in this Symposium deal with various related historical and theoretical issues. This Article offers a number of responses to the other articles, all of which will be published in Voume 18 of the University of San Diego's Journal of Contemporary Legal Issues. The other articles posted so far on SSRN include: Michael Kent Curtis, "The Bill of Rights and the States: An Overview From One Perspective," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1334687); Kurt T. Lash, "Beyond Incorporation," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1323431); and Lawrence B. Solum, "Incorporation and Originalist Theory," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1346453).

Two Articles

These two articles look interesting:

Seth Barrett Tillman, The Puzzle of Hamilton's Federalist No. 77: It Turns out that Hamilton was Right After All:

The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. There is nothing new about that insight. But one alleged error has always struck me as somewhat different from other alleged errors. I am speaking of Hamilton's 1788 publication: The Federalist No. 77. There he wrote:

IT HAS BEEN MENTIONED as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

This is the enigmatic great white whale among Founding-era documents.

Partisans of Senate (or congressional power) agree with Hamilton (or, at least, they think they agree with Hamilton). These commentators look back to the Tenure in Office Act and to any number of statements made on the floor of the House when statutory removal was first debated in 1789 -- all purportedly consistent with Hamilton's statement here. Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They affirm that Hamilton erred. These commentators look to Myers v. United States and to statements made by Madison on the floor of the House during the statutory removal debates. The consensus view, nay - the universal view, is that Hamilton was speaking to the issue of the "removal" of federal officers.

However, this understanding of The Federalist No. 77, the standard view, the view that Hamilton was speaking to "removal," creates as many problems as it might resolve. And this is true without regard to whether or not you think Hamilton correct or erred. First, the standard view is puzzlingly inconsistent with everything we know about Hamilton, the premier Founding-era spokesman for energy and unity in the Executive. How is it that he would concede a role for the Senate in regard to the removal of federal officers, if a contrary view were even remotely tenable? Second, Hamilton's opining on the scope of the removal power is inconsistent with his plan for and the purpose of The Federalist. His plan for The Federalist was to discuss the defects of the then-current regime, the government under the Articles, the need for a more energetic government, and finally, to provide an article-by-article, clause-by-clause defense of the newly proposed Constitution of 1787 as consistent with the principles of Republican government, liberty, and property. Removal is simply not expressly addressed in the Constitution. To bring up "removal" is just bad tactics - why open up that can of worms, particularly where one's conclusion lacks direct textual support or any closely reasoned argument. Was Hamilton really such a poorly skilled tactician and propagandist? There is a third problem with the standard view .... This problem is not historical, but textual. If you read Hamilton's statement, you will notice that he does not actually use the word "removal" or any variant on "removal." Rather, he uses the word "displace." And that is the key to this ancient intellectual puzzle. Hamilton was not speaking to the power of removing federal officers, rather he was speaking to who had authority to displace federal officers. The two words are akin, but they are not at all times and for all purposes the same.

Lawrence B. Solum, Incorporation and Originalist Theory:

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

Kurt Lash on the Fourteenth Amendment

A new paper by Kurt Lash is always a treat. After a number of articles focusing on the Ninth and Tenth Amendments, Professor Lash has posted a brief article on the Fourteenth. I haven't read it yet, but here's the introduction:

Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. Because members of the Reconstruction Congress often linked the meaning of the Fourteenth Amendment to the Bill of Rights, at first glance my proposal may seem to offer a distinction without a difference. In fact, I believe a complete break from incorporation-talk is an important step towards a more historically-contextual investigation of the original meaning of the Fourteenth Amendment. Not only does it allow for a more historically accurate account of Fourteenth Amendment-period rights, it also opens the door to a more nuanced historical account that gives due weight to federalism concerns which informed the original understanding of the Amendment.

ADDENDUM: Lawrence Solum reports that "Lash gave this paper yesterday at the excellent conference on the Bill of Rights and the 14th Amendment at the University of San Diego. Highly recommended."

The Right to Bear Arms in Reconstruction

One of the more interesting briefs filed in the Heller case – the case pending in the Supreme Court concerning whether there is an individual right to bear arms – is one filed by the the Institute for Justice.

The brief is somewhat off the beaten track, because it does not concern the original meaning or understanding of the Second Amendment. Instead, it focuses on the understanding of the Second Amendment held by the members of the 39th Congress shortly after the end of the Civil War. As such, it should be of significant interest to students of the Civil War and particularly Reconstruction.

I believe that the better argument is that the original Second Amendment was intended and generally understood to convey an individual right. But whatever one's views on that question, the evidence is overwhelming that members of the 39th Congress understood the Second Amendment as doing so.

What the brief documents is the powerful evidence demonstrating that that Congress was irate that southern states and communities were disarming freedmen and Republican sympathizers, leaving them to the tender mercies of gangs of murderous thugs. Rightly or wrongly, Congressional Republicans believed that the Second Amendment embodied an individual right to personal security and regarded these actions of southern states as clear violations of this right. Reconstruction era Republicans did not view the Second Amendment as tied to membership in state militias -- to the contrary, state authorities and “militias” were the problem. It was the need for freedmen and southern Republican sympathizers to protect themselves, their homes and their families against state and state militia violence that was the concern.

As the brief explains, the Republicans responded by enacting legislation and by proposing a constitutional amendment. Both the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 contained provisions that were plainly premised on the belief that the freedmen were being deprived of their constitutional right to bear arms, and were designed to remedy that unconstitutional outrage as Congress saw it.

The belief that the southern states were violating the Second Amendment likewise contributed to the core of the Privileges or Immunities Clause of the Fourteenth Amendment, proposed by the same 39th Congress later in 1866. Among other things, members of Congress made clear during debate that that Section 1 of the Amendment was designed to insure that the Second Amendment – understood as the right of individuals to possess and use firearms for the protection of themselves, their homes and their families – was applicable against the states.

The brief falls down however, when it comes to explaining how the Reconstruction era understanding of the right to bear arms affects, or should affect, our interpretation of the Second Amendment itself. After all, as the brief concedes, what applies to the District is the Second Amendment itself, not the Fourteenth.

The brief seems to argue that the understanding of the right to bear arms that underlies the Fourteenth Amendment should somehow relate back to the meaning of the Second Amendment. This is, in effect, Professor Amar’s “doctrinal feedback effect” theory, which I discussed (and expressed confusion about) here, here and here.

The brief’s discussion of the issue strikes me as evasive at best. Here is the core of the argument:

The amendments to [the Constitution] are, of course, part of the essential intrinsic context of such a document. The Constitution following an amendment is, in many ways, a substantially different document than it was just prior to amendment, and the internal context even for provisions not expressly altered by the amendment nonetheless changes, and changes the interpretation of such provisions. Cf. United States v. La Franca, 282 U.S. 568, 576 (1931) (Statutes after amendment “are to be read, as to all subsequent occurrences, as if they had originally been in the amended form”). And insofar as an amendment was made with reference to earlier provisions, the amendment will control over such earlier provisions . . ..

The passage sounds very learned and sophisticated; the citations (I have omitted one) render it imposing. But when you cut through it, I’m not sure it says anything. If you understand it, by all means, tell me!

I readily admit that, if you assume that the Second Amendment did not originally convey an individual right of personal security, the alternative is awkward and unsatisfying. It is downright weird to posit that the Second Amendment itself grants no individual right against the federal government (including the District), but that the Second Amendment, as incorporated into the Fourteenth, does grant an individual right against the States. However, until someone points me to a comprehensible theory supporting the “doctrinal feedback effect," that is what I’m left with.

A Doctrinal "Feedback Effect" 2

In my last post, I set the stage for Professor Akhil Amar’s justification of his position that “the Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action.”

Unfortunately, here is where I get lost. Essentially, Professor Amar points out that neither First Amendment paradigm (local citizen complaining about distant federal government vs. beleaguered southern Unionist advancing Reconstruction against irate locals) is contained in the text of the First Amendment. Likewise, the text of the Amendment does not reflect either the pro-jury or the anti-jury rules that flow from those paradigms.

Professor Amar then proceeds as follows:

"[It is reasonable to infer] that the core purpose of the unreconstructed First Amendment was to prevent not majority tyranny, but self-dealing by unrepresentative government agents. Given an agency-cost theory of free speech, a jury may well be the best guardian of the First Amendment’s core – a conclusion buttressed by the efforts of eighteenth-century speakers like Zenger and Callender to appeal from judge to jury. But if the original “First Amendment due process” theory is built in part on structural inferences from Barron, then the Fourteenth Amendment’s repudiation of Barron requires us to rethink the original assumptions that led us to juries. Once the Fourteenth Amendment is on the books, the agency theory of free speech is less explanatory than the minority-protection theory, for the latter better accounts for speech limitations on majoritarian state legislatures. And the minority-protection theory suggests a different optimal allocation between judge and jury. To put the structural point textually, the parallel language between the First Amendment and the Fourteenth should strongly incline us toward a unitary theory of freedom of speech against both state and federal governments.

With all due respect to Professor Amar, whom I admire greatly, I just don’t think this flies (or, more likely, I just don’t understand what he's saying). Professor Amar may well be correct that “[o]nce the Fourteenth Amendment is on the books . . . the minority-protection theory . . . better accounts for speech limitations on majoritarian state legislatures.” That does not establish, however, that the minority-protection theory better accounts for speech limitations on the federal government. In 1866-68, Republicans who passed the Fourteenth Amendment almost certainly viewed the federal government -- which they controlled -- as part of the solution, not part of the problem. Why isn’t it equally or more reasonable to posit different theories applicable to the federal and state governments?

A Doctrinal "Feedback Effect"

In my last post, I raised a question concerning what I termed (incorrectly, as we will see) “reverse incorporation.” I posed a hypothetical in which one of the provisions of the Bill of Rights (I was using the Second Amendment) was originally understood to convey limited or no individual rights. However, in 1868, when the Fourteenth Amendment was ratified, the same Bill of Rights provision was (incorrectly) understood to convey broader individual rights, and it was generally understood that a purpose and effect of the Fourteenth Amendment was to bestow those broader rights on individuals as against state governments.

Under those circumstances, I asked, which construction would apply to the federal government (and the District of Columbia)? Logically, it would seem that the original, more restrictive understanding would apply. After all, the underlying Bill of Rights provision was not amended, and the Fourteenth Amendment does not apply against the federal government. On the other hand, it certainly is awkward and odd as a practical matter to apply one version of, say, the First Amendment to the federal government and another version to the states.

Finally, I mentioned that I recalled that Professor Akhil Amar had discussed the issue and advanced a justification for “reverse incorporation,” although I had not understood it.

I have found that passage, in Amar’s book The Bill of Rights, and thought I’d discuss it as best I can.

Amar’s discussion of what he calls a “feedback effect” (not “reverse incorporation”) of the Fourteenth Amendment occurs in the context of a discussion of the First and Fourteenth Amendments. By way of background, Amar’s view is that the core purpose of the freedom of speech provision of the First Amendment was, originally (i.e., in 1791), to insure that local citizens had the right to speak out against distant, unfaithful federal representatives. A corollary was that local juries were a key procedural protection – think of the John Peter Zenger case as the paradigm.

How, then, Amar asks, do we reconcile this with the modern tendency to take First Amendment issues away from juries by characterizing them as issues of law? Amar argues that this is justified by the Fourteenth Amendment. In 1868, the paradigmatic speaker in need of protection was not John Peter Zenger, but rather a beleaguered southern Unionist seeking to defend Reconstruction policy amidst a sea of hostile locals. In this context, juries were part of the problem, not part of the solution. The paradigms of the original First Amendment and the 1868 First Amendment (as incorporated by the Fourteenth) are essentially opposite in this respect.

But a question then arises. Let us assume that anti-jury rules are justifiable in Fourteenth Amendment-First Amendment cases involving states. Even so, how does that validate applying the same anti-jury rules to First Amendment cases involving the federal government? Amar puts it this way: “Can it be argued that the Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action?”

Amar’s answer is unambiguous: “Yes it can.”

In the next post, I will try to pick my way through Amar’s argument in support of his conclusion to see (a) whether I can understand it, and (b) if so, whether it makes any sense.

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.

The Fourteenth Amendment and Incorporation XIII: It's About Time

Back in February, I pointed out a new article by Brian Wildenthal on the Fourteenth Amendment and Incorporation. Turns out I beat the Volokh Conspiracy by over a month! What's the deal with these law profs, anyway?

Are There Two Sets of Constitutional Amendments?

Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

Many constitutional scholars, however, seem to contend that the "revised" meaning of the original understanding would somehow also be applied back against the federal government. I don't have the book at hand, but I distinctly recall Akhil Amar making such an argument in his book on the Bill of Rights (or perhaps it was America's Constitution). I distinctly recall it because I remember repeatedly rereading the passage in which he made the argument -- it was utterly incomprehensible. He might have used a phrase such as "reverse incorporation" (although perhaps I saw that phrase elsewhere). (When I get ahold of the book, I'll post the quote.)

There's probably a vast body of legal literature on the topic. I just don't know it.

The Fourteenth Amendment and Incorporation XIII: A New Article

I have previously published a number of posts here discussing the background of the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment, analyzing portions of the speeches and debates in the 39th Congress concerning the Amendment, and arguing that the Clause was clearly intended to apply the Bill of Rights against the states. You are invited to look under the tags "Fourteenth Amendment" and Incorporation" to find those earlier entries.

I am pleased to see a new article that reaffirms this conclusion. Bryan H. Wildenthal of the Thomas Jefferson School of Law has released on SSRN a working draft of an article entitled "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67." The full article is available via SSRN. Here is the abstract:

For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood (except by a few “eccentric” or “confused” figures) to “incorporate” or nationalize the entire Bill of Rights so as to apply it to the states. This modern conventional view was developed primarily by Charles Fairman and Stanley Morrison in 1949, and defended by Raoul Berger from 1977 to 1997. A revisionist, pro-incorporation view was expressed by Justice Hugo Black (and three colleagues) in Adamson v. California (1947), echoing the late-19th century view of the elder Justice John Marshall Harlan, and defended by William Crosskey in the 1950s and Alfred Avins in the 1960s (among others). Michael Curtis, starting in 1980, led a renewed wave of revisionist scholarship, joined by Akhil Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook (among others) in the 1990s.

Few scholars would dispute that the modern conventional account has been severely challenged. Many have been persuaded that Black (and the “eccentric” Justice Harlan the elder) were right all along. But some still reject or question the legitimacy of the “incorporation doctrine.” Hence the purpose of this article. It demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. Fairman's 1949 article, in particular, has been viewed as a “classic” for more than half a century. It is one of the most-cited law review articles of all time.

Surprisingly, my research has shown that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. I have found relevant original source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67 that suggests the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.

This article, following up on two articles I published in 2000, is part of a broader project that will include several forthcoming articles, to be eventually combined into a book.

The Fourteenth Amendment and Incorporation XII: Robert Safford Hale

OK, let’s discuss an opponent of the Fourteenth Amendment – or at least the version of the amendment as it existed in late February 1866. One of the principal opponents of that early version in the House was Robert Safford Hale (R. – NY). Hale hailed (sorry, I can’t help myself!) originally from Vermont (born 1822). He moved to Elizabethtown, New York (near Lake Champlain), opened a legal practice there in 1847 and later became a judge. The 39th Congress was his first term in Congress. He was one of the most conservative Republicans in the House.

Hale spoke against Bingham’s proposed amendment as it then stood on February 27, 1866. Rep. Hale’s remarks concerning the amendment as then proposed focused on the “equal protection” language, not on the “privileges and immunities” language, which I have bracketed for sake of clarity:

“The Congress shall have power 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, and] to all persons in the several States equal protection in the rights of life, liberty and property.”

Rep. Hale construed this language as “a grant [to Congress] of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” Granting Congress such power, he argued, would turn the Constitution on its head. Rather than being limited to specific, enumerated powers, Congress would be granted sweeping powers to legislate on almost every subject.

In the course of his speech, Rep. Hale turned to the Bill of Rights. His explanation of his understanding of the Bill demonstrates that Rep. Hale believed that the Bill of Rights was already binding on and enforceable against the States in court. He had no problem with that idea. He objected only to granting Congress the power to enforce the Bill of Rights through general legislation.

Rep. Hale began by setting forth his understanding of the Bill of Rights. It protected citizens by limiting Federal and State powers. What the Bill did not do was grant Congress power to enact legislation to enforce its provisions:

“Now, what are these amendments to the Constitution, numbered one to ten . . .. What is the nature and object of these articles? They do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power. They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation. They are not matters upon which legislation can be based.”

That did not mean, however, that the Bill of Rights conveyed rights without remedy. “Throughout they provide safeguards to be enforced by the courts, and not to be exercised by the Legislature.”

Rep. Hale obviously was unaware of Barron v. Baltimore. Rep. Bingham, who was aware of that case, jumped up and rudely challenged this assertion:

“I ask him [Mr. Hale] now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? I want an answer.”

In response, Rep. Hale admitted that he did not know of such a case. He simply assumed that the Constitution somehow protected the liberties of citizens. I quote the response in full because it is so striking:

“The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning.

“I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.”

After another Representative joined in to ask Rep. Bingham whether he was aware of such a case, Bingham said that was “ready to answer the gentleman now, and to produce such a decision” – almost certainly Barron and Livingston v. Moore, the cases that he cited and quoted from the next day (see my post immediately below). Hale, however, objected that this was a “side issue” and stated that he preferred to continue with his speech.

Shortly thereafter, Hale nonetheless returned to the issue of court enforcement of the Bill of Rights. Yet again, he made clear that he understood that the Bill applied to the States and was enforceable against the States in court:

“If he [Rep. Bingham] claims that those provisions of the constitution or the laws of Oregon [to which Bingham had referred] are inconsistent with the bill of rights contained in the Constitution of the United States, then I answer that his remedy is perfect and ample, and the courts may be appealed to vindicate the rights of the citizens, both under civil and criminal procedure. Their powers are ample; it never was questioned, it never could be questioned, that the decrees of the courts, in all the States at least where slavery did not exist, have been thoroughly and sufficiently enforced.”

In short, even the most conservative Republican, one who clearly believed in a federal government of limited powers, believed that the Bill of Rights was binding on the States and thought that it was perfectly natural to assume that citizens could vindicate those rights in court.

No wonder, then, that the speeches of Rep. Bingham and Senator Howard explaining the Privileges or Immunities Clause elicited few if any objections. So far as I'm aware, no Republican – including Rep. Hale -- stated during the debates that he believed that the Bill of Rights did not and should not apply to and restrict the States. (As I’ve noted before, Radicals complained that the amendment did not go even further and grant political rights, particularly the right to vote, as well as civil rights.) Rep. Hale and a handful of other Republican legislators objected only to granting Congress sweeping enforcement powers.

The final version of the amendment passed by the House (and Senate) in June 1866 may have alleviated some or all of Rep. Hale’s concerns. The enforcement provision of the final version was placed in a separate Section 5. Although it affirmed the enforcement power of Congress, it did not contain the language that Rep. Hale found most offensive. It stated simply: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Perhaps also, Rep. Bingham’s quotations from Barron and Livingston v. Moore and the need to overrule Dred Scott ultimately convinced Rep. Hale that the amendment was essential to "vindicate the rights of the citizens." For whatever reason, Hale voted for the final version of the amendment.

All quotes are from The Congressional Globe, 39th Congress, First Session, pp. 1063-65 (Feb. 27, 1866). All emphasis within the quotes is mine. Easy access to the Globe for the 39th Congress may be found here.

The Fourteenth Amendment and Incorporation XI: John A. Bingham

My last post inspired me to return to my discussion of the Fourteenth Amendment and Incorporation.

John A. Bingham (R. – Ohio) was a member of the Joint Committee on Reconstruction and the principal author of the Amendment. By contemporary Republican standards, he was no radical. Several modern scholars have ranked him as moderate or mildly conservative in relation to his Republican colleagues. He gave several speeches. To keep this post manageable, I will focus here on one of them, given on February 28, 1866.

At that point, Section 1 of the proposed Amendment had not reached its final form. As of February 28, 1866, it read as follows:

“The Congress shall have power 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, and to all persons in the several States equal protection in the rights of life, liberty, and property.”

In his speech of February 28, Rep. Bingham made clear that he regarded the amendment as giving Congress the power to enforce the Bill of Rights against the States. After a brief introduction, he squarely stated the issue as follows:

“The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”

He then turned to the question why the amendment was even necessary. Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it. Unlike his less sophisticated colleagues, however, Bingham was aware of Barron v. Baltimore and its progeny. He pointed directly to Barron and another Supreme Court case, which had held that provisions of the Bill of Rights (the Fifth Amendment and the Seventh Amendment) were not binding on the States:

“A gentleman on the other side interrupted me [in debate recently] and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

“Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’

“I read one further decision on this subject – the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:

“’As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.’”

Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.

[Aside: We have seen this “right but no remedy” argument, in a different context, before. Before the War, Salmon Chase and others had argued, in effect, that the Fugitive Slave Clause conveyed a right on the slave states, but that they had no remedy if free states refused to turn over fugitive slaves.]

“Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment. By the decisions read, the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”

[I would add here that Bingham’s understanding of the Constitution was almost certainly wrong as a historical matter. Neither the Supremacy Clause nor the Oaths Clause bound State legislators to pass State laws that did not violate the Bill of Rights (or any other requirements of the Constitution that did not expressly apply to the States). That, however, is irrelevant. Bingham’s understanding, or misunderstanding, was a common one; indeed it represented the mainstream Republican view.]

Bingham then continued as follows, in a passage that emphasized that the proposed amendment supplied no new rights (because the Bill of Rights, properly construed, already applied to the States), but rather an enforcement mechanism for those rights (emphasis added):

“Those oaths have been disregarded; those requirements of our Constitution have been broken; they are disregarded to-day in Oregon [more about Oregon in another post]; they are disregarded to-day, and have been disregarded for the past five, ten, or twenty years in every one of the eleven States recently in insurrection.

“The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for their violation of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

* * *

“Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, liberty and property?”

A few minutes later, Bingham was even more explicit as to what his understanding of the Constitution was. In the process, he made clear that he equated “the privileges and immunities of citizens” with “these provisions of the bill of rights.” Specifically citing the Supremacy Clause and the Oaths Clause, Bingham explained that the Framers had placed an obligation in the Constitution – the obligation of State officials to honor the Constitution. They had even placed in the Constitution an enforcement mechanism of sorts – the final portion of the Supremacy Clause, which provided that “the Judges in every State shall be bound thereby [i.e., by the Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What the Framers had failed to do was provide an effective enforcement mechanism, namely power in the Congress to enforce those obligations and rights. The purpose of the proposed amendment was to supply Congress with that power:

“With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person – those rights dear to freemen and formidable only to tyrants – of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, ‘Let it be remembered that the rights for which America has contended were the rights of human nature?’ Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred right of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?

“What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”

The New York Times reported a summary of Bingham's February 28, 1866 speech and specifically noted Bingham's belief regarding the purpose of the proposed Amendment. "This was simply a proposition to arm the Congress of the United States ... with power to enforce the Bill of Rights as it stood in the Constitution." N.Y. Times, Mar. 1, 1866, at 5.

Later in 1866, while the Fourteenth Amendment was awaiting ratification by the States, Bingham had his speech published as a separate pamphlet. In the title, the pamphlet specifically described the proposed amendment as one “to Enforce the Bill of Rights.” (The full title is, John A. Bingham, One Country, One Constitution, and one People, Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (Washington, Printed at the Congressional globe [sic] office, 1866)).

Salmon Chase and The Fugitive Slave Clause

I don't know whether Abram Smith, Sherman Booth or Byron Paine ever met Salmon Portland Chase, but they had clearly absorbed Chase's arguments about the constitutionality of the Fugitive Slave Acts. You will recall that one of Associate Justice Smith's principal arguments was that the Fugitive Slave Clause did not delegate any power to Congress. The Clause was simply a compact between the States, unenforceable by Congress.

Well, this was exactly the argument that Chase had been making and popularizing since the late 1830s, as part of his thesis that the founders loathed slavery and provided in the Constitution that the federal government should have nothing to do with it:

"Chase . . . tried to interpret the [fugitive slave] clause almost out of existence. The section . . ., Chase pointed out, differed from other clauses in neglecting to delegate to Congress power to enforce it by appropriate legislation. Since all powers not delegated to the federal government were reserved to the states, Chase insisted that the clause was really a compact between the northern and southern states, and that 'each State must judge for itself as to the character of the compact, and the extent of the obligation created by it.' The laws of 1793 and 1850 involving the federal government in the capture of fugitives were unconstitutional, since Congress had no power on the subject."

Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford Univ. Press 2d Ed. 1995) at 77.

Sound familiar?

This helps us understand, by the way, why many members of the Reconstruction Congress believed that it had the power to enforce the Thirteenth Amendment via civil rights legislation, even though that amendment contained no provision specifically delegating power to Congress to do so. It also helps explain why many members of the Reconstruction Congress believed that Section 1 of the Fourteenth Amendment was unnecessary. In Prigg v. Pennsylvania (1842), the Supremes had held -- contrary to Chase's arguments, that the Fugitive Slave Act of 1793 was constitutional: the Fugitive Slave Clause necessarily gave Congress, by implication, the power to enforce it. Members of the Reconstruction Congress reasoned or assumed that the Thirteenth Amendment similarly carried the necessary implication that Congress had the power it enforce it.

It was John Bingham of Ohio who drove his colleagues to include Section 1 in the Fourteenth Amendment because he was one of the few who understood that the implication of Barron v. Baltimore was that Congress did not have the power to enforce the provisions of the Bill of Rights against the States.

Lemmon v. People XI

Having established his foundation, Judge Clerke began building on it by asking a rhetorical question:

"Is it consistent with this purpose of perfect union, and perfect and unrestricted intercourse, that property which the citizen of one State brings into another State, for the purpose of passing through it to a State where he intends to take up his residence, shall be confiscated in the State through which he is passing, or shall be declared to be no property, and liberated from his control?"

20 N.Y. at 636.

In order to answer the question, Judge Clerke first turned to the "the law of nations" for support. Under that law, he asserted, "the citizens of one government have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property." Moreover, foreign nations yield this privilege to each other "without any express compact. It is a principle of the unwritten law of nations." Id.

As you may guess, Judge Clerke then concluded that, if sovereign nations, unbound by compact, granted this privilege to one another, a fortiori "this principle is much more imperative on the several States." "For it can be clearly deduced, as we have seen, from the compact on which their union is based." Id.

Judge Clerke has one more hurdle to pass: are slaves "property," or is that term limited to "merchandise or things?" And who defines the term? We will deal with these issues in our next installment.

The Fourteenth Amendment and Incorporation VI

All right. Back to the Fourteenth Amendment and Incorporation after a substantial delay. Let's look next at the speech of Senator Luke P. Poland (Republican, VT). Senator Poland's speech is sometimes cited as supporting the proposition that the Fourteenth Amendment was not intended to apply the Bill of Rights to the states. In fact, it proves exactly the opposite.

Senator Poland spoke on June 5, 1886 (thirteen days after Senator Howard gave his speech). He spoke only briefly about Section 1, precisely because, he said, he did not disagree with what had already been said (including, presumably, Senator Howard's explicit and widely-reported statements that the Privileges or Immunites Clause was designed to incorporate the Bill of Rights). Senator Poland explained that "all the questions in the proposed amendments to the Consititution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail."

Senator Poland's speech has been misinterpreted because he apparently did not understand that, in Barron v. Baltimore, the Supreme Court had held that the Bill of Rights did not apply to or limit the states -- or at least, in common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights. He expressed the opinion that the Privileges or Immunities clause secured “nothing beyond what was intended” by the similar provision in the original Constitution -- and he then quoted the Privileges and Immunities Clause, Article IV, Section 2.

But, he complained, slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”

In addition, Senator Poland analyzed Section 1 as follows:

“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”

The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference “to all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)

In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.

Previous posts:

The Fourteenth Amendment and Incorporation I

The Fourteenth Amendment and Incorporation II

The Fourteenth Amendment and Incorporation III

The Fourteenth Amendment and Incorporation IV

The Fourteenth Amendment and Incorporation V

The Fourteenth Amendment and Incorporation V

Well, I’m going out of order, but hey, it’s my blog, so tough. Having told you about Corfield v. Coryell, I’m going to discuss the principal speech of Senator Jacob Howard (Republican – Michigan), who discussed the case. It also gives me an opportunity to give Raoul Berger a whack or two.

Senator Howard was a member of the Joint Committee on Reconstruction, which created the Fourteenth Amendment. He was considered at the time, and historians consider him now, a moderate. It’s worth bearing that in mind. If Senator Howard he was a “moderate,” does it make sense to think that “Radical Republicans” disagreed with what he said?

Senator Howard presented the Joint Resolution containing the proposed amendment to the Senate, sitting as a committee of the whole, on behalf of the Joint Committee in a speech on May 23, 1866. The speech appears in the Congressional Globe, Cong. Globe, 39th Cong., 1st sess., 2764, et seq. (May 23, 1866), and is available online. By all means read it yourself.

After some introductory remarks, Senator Howard quoted the draft of Section 1 as it then stood:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Senator then began his discussion as follows:

“It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is the first clause, and I regard it as very important. . . .

“The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”

Senator Howard then moved on to the meaning of the phrase “privileges or immunities” in the proposed amendment. He began by citing and quoting at length from Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. His quotation from Corfield v. Coryell included the entire passage that I quoted in an earlier entry.

He then continued (emphasis added):

“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. 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; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him; and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

“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; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper Clause] of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guaranties.”

In short, Senator Howard specifically and clearly stated that the “privileges and immunities” protected by the amendment included “the personal rights guarantied and secured by the first eight amendments of the Constitution." He then specifically mentioned:

* “the freedom of speech and of the press” (the First Amendment);

* “the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people” (the First Amendment again);

* “the right to keep and to bear arms” (the Second Amendment);

* “the right to be exempted from the quartering of soldiers in a house without the consent of the owner” (the Third Amendment);

* “the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit” (the Fourth Amendment);

* "the restriction contained in the Constitution against the taking of private property for public use without just compensation" (the Fifth Amendment);

* “the right of an accused person to be informed of the nature of the accusation against him (the Sixth Amendment);

* “his right to be tried by an impartial jury of the vicinage” (the Sixth Amendment again);

* “the right to be secure against excessive bail and against cruel and unusual punishments (the Eighth Amendment).

It is, frankly, hard to imagine a statement that more clearly conveys the point that the “privileges or immunities” clause of the proposed amendment was intended to incorporate the Bill of Rights.

In his book Government by Judiciary, Raoul Berger attempted to minimize Senator Howard’s speech. He said that the sum and substance of Senator Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that “to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.” According to Berger, this “remark” by Senator Howard was “casually tucked away in a long speech.”

I have quoted at length from Senator Howard’s speech precisely because it makes crystal clear how dishonest Berger’s description is. Michael Kent Curtis has correctly described Berger’s characterization as “grossly inaccurate:”

“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”

Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights at pp. 126-27 (footnotes omitted).

Senator Howard’s speech – including the portions in which he specifically referred to the Bill of Rights – was reported in detail in the press. Both the New York Times, on May 24, 1866, and the New York Herald (the latter then ranked as the nation’s best-selling newspaper) reprinted the passage on the Bill of Rights on their front pages. Curtis, No State Shall Abridge, p. 128; Akhil Amar, America’s Constitution: A Biography, p. 197.

Previous posts:

The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
The Fourteenth Amendment and Incorporation III
The Fourteenth Amendment and Incorporation IV