Originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell.
The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was.
Partly because of this scholarly discord, the Supreme Court has resisted efforts to revive the Clause. Most notably, four years ago, in McDonald v. City of Chicago, the petitioners asked the Court to invalidate Chicago’s comprehensive ban on handguns as violative of the Clause, as originally understood. Although splitting 5-4 on whether to strike down the ban, the Court was nearly unanimous in deciding to let the sleeping Clause lie—in part because there was no scholarly consensus as to what the Clause would say if awakened. Only Justice Clarence Thomas disagreed.
In the construction of a scholarly consensus, Professor Kurt Lash’s new book represents an important step forward. He presents what is perhaps the most extensive study into the “original meaning” of the Clause. Relying on Professor Lawrence Solum’s terminology, Lash identifies this “meaning” as “the likely original understanding of the [Clause’s] text at the time of its adoption by competent speakers of the English language who were aware of the context in which the text was communicated for ratification.”
In seeking this original meaning, Lash explores an extensive array of evidence—some of which has been largely overlooked by scholars. Of particular note, he highlights the way in which the New Orleans Race Riot of August 1866 shaped the ratification debates. This mob violence, directed at citizens exercising their freedoms of speech and assembly, led Republicans to emphasize how the Amendment would provide needed protection for these liberties. Lash also calls scholarly attention to the analogous provisions of various territorial treaties (e.g., the Louisiana Treaty) wherein the United States had pledged to admit the inhabitants to the rights and immunities of “citizens of the United States.”
Lash’s work is significant not only for the important evidence he introduces and highlights, but also for his influence on Justice Thomas. Much of the book’s content was initially published in law-review articles over the past few years. Justice Thomas has cited some of these articles in concurring opinions in two prominent cases: McDonald and Town of Greece v. Galloway (last term’s city-council prayer case).
Based on the evidence Lash surveys, he reaches the following main conclusions as to the original meaning of the Privileges or Immunities Clause.
First, the “privileges [and] immunities of citizens of the United States” secured by the Fourteenth Amendment were “altogether different” from the “privileges and immunities of citizens in the several states,” protected by Article IV.
Second, according to a generally accepted antebellum and postbellum consensus, the Article IV privileges represented rights conferred by the states; the provision guarantied citizens only the freedom from interstate discrimination—that is, a citizen from one state, in another state, would be entitled, no more and no less, to what a citizen of that other state would enjoy.
Third, in sharp contrast, according to a similarly dominant consensus, the privileges of citizens of the United States (a term first prominently used in antebellum territorial treaties), represented federally-conferred privileges—including “all constitutionally enumerated personal rights,” such as those found in the first eight amendments to the federal Constitution.
Fourth, this “total incorporationist” view of the Privileges or Immunities Clause is conformable with the preponderant post-bellum interpretation, and especially the reading offered by the Supreme Court in the Slaughter-House Cases—the first, and by far the most elaborate, of the Court’s interpretations of the Clause.
Fifth, this view of the Clause is consonant with the text of the Constitution as a whole.
Lash marshals powerful evidence in support of his thesis. Most importantly, his account is (1) supported by an 1871 speech by the Clause’s principal drafter, John Bingham (2) consistent with the Supreme Court’s unanimous interpretation of Article IV in Paul v. Virginia (1869) and subsequent cases, and (3) conformable with the majority opinion in the Slaughter-House Cases (1873).
Nonetheless, despite the obvious importance of this work, and the extensive evidence he presents, I believe that his principal conclusions are disproven by a preponderance of the very evidence on which he relies.
Conformity with the text
Let us begin with his fifth conclusion, for it involves the primary evidence of original meaning: the actual text of the Constitution. Lash claims a textual foundation for his claim that the privileges of citizens of the United States are the personal rights enumerated in the text of the U.S. Constitution.
Despite a superficial plausibility, this formula does violence to the text in two respects. On the one hand, Lash’s account inverts the relationship between the nation’s citizenry and the nation’s Constitution. The Constitution did not create the citizens, the citizens created the Constitution. This primacy of the citizenry is indicated by the Preamble–“the people of the United States” established a “Constitution” for the [pre-existing] United States, as well as Article I’s durational-citizenship requirements for Senators—indicating that American citizenship predated the Constitution of 1787 by at least nine years (and the Article of Confederation, ratified 1781, by at least three years).
The citizens of the United States created the Constitution of those same states. So a more likely place to find the privileges of American citizenship is not in the federal Constitution, but in the rights that pertained, from the beginning, to the members of the sovereign people who authored the Constitution.
On the other hand, Lash’s account eviscerates the significance of the Latinate words “privileges” and “immunities” and “citizens.” As Lash points out, the words “privileges and immunities” were typically used to designate “unique or special advantages” belonging to a subset of persons. In the Fourteenth Amendment, this particular subset is plainly the “citizens of the United States.” Therefore, the privileges here are seemingly the special rights pertaining to American citizens. Yet Lash’s total-incorporationist approach encompasses all “personal” constitutional rights, including the procedural rights of Amendments V–VIII that are expressly or impliedly extended to all persons, regardless of citizenship. The Constitution treats the freedoms from compulsory self-incrimination, or cruel and unusual punishment as human rights, not privileges of citizenship. Rather, only some enumerated personal rights seem extended to the citizenry (or “the people”), such as the freedom of petition and the right to bear arms; these liberties might qualify as privileges of citizenship.
The relationship between Article IV and the Fourteenth Amendment
Lash emphasizes that in his March 1871 speech, Bingham “contradistinguished” the rights of national citizenship, secured by the Fourteenth Amendment, from the rights of state citizenship, secured by Article IV. Lash repeatedly quotes from this speech–by far the best evidence supporting Lash’s sharp distinction between the rights secured under Article IV (state-conferred) and the Amendment (federally-conferred).
But conspicuously missing is evidence that, during the adoption of the Amendment, Bingham or anyone else had drawn this sharp distinction. Indeed, all express statements seem uniformly contradictory. What became Section 1 began as Bingham’s proposal, drafted in February 1866, to give Congress the authority to secure, to all persons in the states, the equal protection in the rights of life, liberty, and property, and to all citizens, “all privileges and immunities of citizens in the several States.” As Lash explains, well before 1866, Bingham had long believed that the term “privileges and immunities of citizens of the United States” identified the rights of citizenship under Article IV; congressional enforcement of Article IV would ensure a fuller security for these national privileges.
But according to Lash, Bingham’s interpretation was both peculiar and temporary. Lash spends two chapters contending that by April 1866, when he drafted the final version of the Clause, Bingham had come to agree with mainstream Republicans that Article IV secured only equal access to state-conferred rights, and not the privileges of national citizenship. Bingham thus abandoned his peculiar effort to provide enhanced enforcement of this provision.
But the evidence strongly indicates that Bingham’s understanding was neither idiosyncratic nor temporary. Mainstream Republicans had long supported fuller enforcement of Article IV in order to secure certain fundamental civil rights.
In their 1860 national platform, Republicans resolved as follows:
That we deeply sympathize with those men who have been driven, some from their native States and others from the States of their adoption, and are now exiled from their homes on account of their opinions; and we hold the Democratic Party responsible for this gross violation of that clause of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.
According to mainstream Republicans, then, the Clause, fully understood, protected citizens in all the states, even in their home states, in certain rights of travel, residence, and opinion.
The Republican project to enforce a robustly-interpreted Article IV still prevailed in the Thirty-Ninth Congress. Two days before Bingham presented his proposal to the Joint Committee, the Senate approved a resolution directing the Committee, to inquire into the expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine, by appropriate legislation, all the guarantees contained in that instrument, and more especially—
1st. That which recites the people, without distinguishing them by color or race, as those who are to choose representatives.
2d. That which assures the citizens of each State all privileges and immunities of citizens in the several States.
3d. That which enjoins upon the United States to guarantee to every State in the Union a republican form of government.
On the same day, in the House, Ohio’s James Garfield called for the full enforcement of the rights secured by the Due Process and Privileges and Immunities Clauses, for “[w]e must make American citizenship the shield that protects every citizen, on every foot of our soil.”
This circumstantial evidence, then, strongly suggests that Bingham’s proposed Amendment—designed to fully enforce those same two clauses—reflected a widespread demand. Indeed, Bingham’s plan was endorsed by nine of the eleven Republicans who voted on sending it to the full Congress.
But Lash argues that in the final draft of Section 1, Bingham and his colleagues abandoned this approach. Here too the evidence strongly points the other way. In his oft-cited speech, Senator Jacob Howard strongly implied that the Clause would protect, first and foremost, Article IV privileges, including the travel and economic rights found in Corfield v. Coryell’s expressly incomplete enumeration—as supplemented by most, if not all, the rights set forth in the first eight amendments. More emphatically, his colleague Luke Poland stated categorically that Section 1 “secures nothing beyond what was intended by [Article IV’s Privileges and Immunities Clause].” Speaking with greater specificity, the pseudonymous “Madison” wrote in the New York Times, that the Privileges or Immunities Clause was “intended for the enforcement” of the Privileges and Immunities Clause. Indeed, as David Bogen has pointed out, “[e]very speaker who touched on the issue stated that the Fourteenth Amendment clause was derived from Article IV.” Lash presents no clear countervailing evidence.
The prevailing understanding of Article IV’s Privileges and Immunities Clause
Lash counters, however, that ascribing such an intent to Republicans is implausible, because the mainstream Republican interpretation of Article IV’s Privileges and Immunities Clause was the same “clear and stable” interpretation that prevailed among antebellum and postbellum jurists: the Clause secures only state-conferred privileges, and only against interstate discrimination. The enforcement of Article IV, so understood, would have provided no remedy to the evils Republicans complained of: primarily racial discrimination in civil rights, and abridgement of the freedoms to travel and speak.
Lash’s evidence, however, suggests the absence of any prevailing “clear and stable” antebellum interpretation. In Conner v. Elliott (1855), a unanimous Supreme Court carefully avoided any general interpretation, because the Clause involved “matters not only of great delicacy and importance, but which are of such a character, that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief.” As Senator Howard pointed out a decade later, the antebellum Court had thus avoided identifying “either the nature or extent of the privileges and immunities thus guarantied.”
The “delicacies” the Court had in mind probably involved the serious sectional issues that had sharply divided courts as well as the whole polity. During the debates over Missouri’s admission, congressmen argued at length whether the state’s prospective constitution, by prohibiting black immigration, violated the Clause. In Amy v. Smith (1822), a divided Kentucky court rejected a black woman’s claim that the Clause entitled her to an exemption from a local statute excluding blacks from filing certain lawsuits. Conversely, in Lemmon v. People (1860), a divided New York court rejected a slaveowning woman’s claim that the Clause exempted sojourning citizens from local antislavery laws. To be sure, in both cases, the majority endorsed the strict interstate-equality reading of the Clause; but the very existence of these heated controversies, and the sharp divisions on the courts, indicated the absence of consensus.
More famous was a case that never reached the courts. In 1844, Massachusetts tried to launch a judicial challenge to South Carolina’s law summarily imprisoning all black sailors without benefit of the writ of habeas corpus. But the attorney sent by the Massachusetts legislature, Samuel Hoar, had to flee South Carolina under threat of state-sanctioned mob violence.
Another major controversy was alluded to in the Republicans’ 1860 platform. As mentioned, they decried the states’ abridgement of the freedoms of locomotion and opinion as violative of the Privileges and Immunities Clause.
In sum, there was no “clear and stable” antebellum consensus as to the Clause’s meaning. And Republicans certainly did not concur that the Clause secured only the immunity against interstate discrimination.
To be sure, as Lash writes, some speakers in Congress clearly endorsed the now-conventional reading of Article IV. But these speakers were Democrats, like Indiana Representative Michael Kerr. Incidentally, in Kerr’s own state, the Republican-dominated supreme court would take a different approach just a few months later; in Smith v. Moody; the court struck down the state’s constitutional restriction on blacks’ right to immigrate and make enforceable contracts on the grounds that such a law violated the “the privileges and immunities of general citizenship of the United States” secured by Article IV.
The prevailing understanding of the citizenship provisions of the territorial treaties
Lash, argues that Bingham and others’ comments notwithstanding, the expression “privileges and immunities of citizens of the United States” was informed primarily, not by Article-IV jurisprudence, but by the treaty provisions securing such privileges to the inhabitants of various acquired territories (Louisiana, Florida, etc.). Lash says that this language was generally deemed to refer to the personal rights secured by the Constitution, including its eight amendments.
Lash presents no evidence of anyone clearly relying on the treaties to explain the Privileges or Immunities Clause. He points only to a handful of treaty references, but these served to explain the Citizenship Clause or its analogue in the Civil Rights Act of 1866, not the Privileges or Immunities Clause. This silence is deafening given the substantial evidence of this provision’s close relationship with Article IV’s Privileges and Immunities Clause.
Moreover, Lash provides scant evidence to show that his incorporationist reading of the treaties prevailed when the Amendment was adopted. He relies almost exclusively on an old (1819), partisan tract by Daniel Webster, but does not explore to what extent subsequent authorities agreed; indeed he cites none of the cases expounding these treaty provisions. Furthermore, he does not address the peculiar implications of his reading: that by these treaties, despite Barron v. Baltimore, and despite the “equal footing” doctrine, the Bill of Rights was already incorporated against some of the states—those formed from the territory governed by those treaties—Florida and the states west of the Mississipppi.
Conformity with the Slaughter-House Cases
Finally, Lash argues that his account of the original meaning is conformable with the majority opinion in Slaughter-House. If so, then a revival of the Privileges or Immunities Clause would not require reversal of this powerful precedent. In this regard, Lash does not dispute that the Court eviscerated the Clause’s original meaning. But unlike most scholars, Lash identifies 1876, rather than 1873, as the fatal year. In United States v. Cruikshank (1876), the Court held that the privileges of U.S. citizenship protected the freedom of petition only vis-a-vis the federal government but not a general freedom to petition other governments.
As Lash points out, Justice Miller, writing for the majority in Slaughter-House, followed Bingham in drawing a sharp distinction between the privileges of state and national citizenship, secured by Article IV and the Fourteenth Amendment, respectively. Although Miller did not expressly endorse total incorporation, his definition was broad enough to encompass all the personal rights enumerated in the national Constitution.
Although a plausible reading of the bare text of Justice Miller’s opinion, Lash’s view is inconsistent with that opinion’s original meaning. Just three years later, in Cruikshank, most of the same judges that had decided Slaughter-House endorsed Chief Justice Waite’s opinion in Cruikshank. Lash asserts that Slaughter-House was the “dog that didn’t bark.” Yet Slaughter-House figured quite prominently in Waite’s opinion for the Court. Slaughter-House provided the first citation, and the only citation supporting the Court’s general definition of the privileges of national citizenship.
Although Lash’s study does not support Lash’s broad conclusions, it lays (or at least reinforces) a strong foundation for a partial scholarly consensus as to the original meaning of the Privileges or Immunities Clause. In particular, Lash shows, by clear and convincing evidence, that (1) according to the term’s original meaning, the “privileges and immunities of citizens of the United States” included the freedoms of speech, press, assembly and petition; but (2) that within eight years after ratification, the Supreme Court decisively abandoned that original meaning. Thanks to Lash’s work, we are thus significantly closer toward a general scholarly consensus.
 As Lash notes, Akhil Amar gave some attention to the treaties. But primary credit for introducing these treaties to the Fourteenth-Amendment literature belongs to Arnold T. Guminski (a now-retired California prosecutor), who discussed these treaties extensively in a rarely-cited 1985 article, which he has since adapted in an interesting self-published book, The Constitutional Rights, Privileges, and Immunities of the American People (2009).
 Accordingly, in setting forth my disagreements below, I will limit myself to the cases and other sources he cites.
 In his enumeration, Howard conspicuously omitted several provisions, especially the religion clauses of the First Amendment.
 Unlike northern Democrats like Kerr, Republicans offered a broader, often amorphous reading of the Clause. Lash quotes comments by Representative William Higby (MA), Hiram Price (IA) and Frederick Woodbridge (IA) in support, but these speakers merely emphasized the interstate-equality component of the Clause; none, to my knowledge, joined Democrats in asserting that interstate equality exhausted the Clause’s meaning.