History in the Making

The big news in the legal world today is that the Supremes have granted cert in a case called McDonald v. City of Chicago. The issue? Whether the Second Amendment right to bear arms applies against the states (and their political subdivisions):

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

The reference to the Privileges or Immunities Clause is fascinating.

Dave Kopel at Volokh recommends a number of articles for background reading here.

Based on the explosion of scholarly articles we got in advance of Heller, I am hopeful that we will be beneficiaries of a like outpouring between now and next June, when McDonald will likely be decided. This time, the articles will focus on Reconstruction and the Reconstruction Congress. John A. Bingham may become the most famous man in America!

Kurt Lash, hurry up with the second part of your article on the Privileges or Immunities Clause!

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.

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."

Kurt Lash

I'm a big fan of Kurt Lash and his articles on the Ninth Amendment. I'm excited to see that the good Professor has yet another paper publicly available on SSRN, this time about the Tenth Amendment, "The Puzzling Persistence of a Missing Word: The Tenth Amendment, Popular Sovereignty and 'Expressly' Delegated Power." Here's the abstract:

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power, “was neither more nor less, than [an] attempt to foist into the text the word 'expressly'. Modern courts often cite to McCulloch's “omitted text” analysis of the Tenth Amendment in support of broad interpretations of federal power. In fact, Marshall's point regarding the significance of the missing word “expressly” is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is puzzling therefore to learn that courts and commentators during the early decades of the Constitution regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation insisted that Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing actually reflects the original understanding of the Tenth Amendment. Completely missed by generations of Tenth Amendment scholars, adding the phrase “or to the people” to the Tenth transformed the clause into a declaration of popular sovereignty. This declaration established what the Founders referred to as the principle of “expressly delegated powers,” meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, these twin assertions of popular sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

How am I going to get any work done next week? I've got to sneak in time to read the articles on Dred Scott recently published in the Chicago-Kent Law Review (mentioned a few posts ago), and now Professor Lash's as well.

New Kurt Lash and Randy Barnett Articles

On balance, I think Kurt Lash has gotten the better of Randy Barnett in their ongoing debate over the meaning of the Ninth Amendment. I see that Professor Lash has posted his latest effort on that amendment, A Textual-Historical Theory of the Ninth Amendment (forthcoming in the Stanford Law Review), on SSRN:

Despite the lavish attention paid to the Ninth as a possible source of unenumerated rights, surprisingly little attention has been paid to actual text. Although often raised in opposition to reading the Due Process Clause as incorporating only textual rights, the text of the Ninth has nothing to do with interpretation of enumerated rights such as those contained in the Fourteenth Amendment. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. In fact, the standard theory of the Ninth places the text in considerable tension with that of the Tenth. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, recent historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. This seems out of sync with a text that speaks only of the retained rights of the people, not the states.

This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution such as the Tenth and Fourteenth Amendments. Particular attention is paid to the meaning of “deny or disparage,” the distinction between “rights retained” and “rights assigned,” and the relationship between rights retained by the people under the Ninth Amendment, and powers reserved to the people under the Tenth. The article closes by sketching a textual-historical approach to judicial enforcement of the Ninth Amendment in a manner that reconciles the text with the Fourteenth Amendment.

That said, I enjoy reading Professor Barnett's pieces. Coming at issues with a distinct perspective, he often illuminates them from unexpected angles.

I see that Professor Barnett also has a new article up on SSRN: The People or the State? Chisholm v. Georgia and Popular Sovereignty, the abstract of which is as follows:

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court's individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.