To qualify as a “privilege” or “immunity” of U.S. citizenship, the right must be both fundamental to citizenship and have a long history.
There are two questions one must answer to understand the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause, which provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The first is to what privileges and immunities the clause refers. The second is how the clause protects those privileges and immunities—whether it guarantees a fundamental minimum of such rights against any state interference, or merely equality.
In Randy Barnett and Evan Bernick’s ambitious new book on the Fourteenth Amendment, the authors argue that the Privileges or Immunities Clause does everything at once: it (1) incorporates the Bill of Rights against the states; (2) guarantees a fundamental minimum of unenumerated property, contract, and other civil rights; and (3) requires equality in the provision of civil rights and public privileges above the fundamental floor. Professors Barnett and Bernick land on this theory because there is some support for each element in the historical record. The authors do not point to anyone in that record, however, who adopted this all-inclusive view of the clause.
Most of the book’s first part focuses on the evidence for the second of these propositions: that the clause guarantees in all the states a minimum content of contract and property and other fundamental rights. The claim centers on the evolution of the meaning of the Comity Clause in the original Constitution. That clause provides, in Article IV, that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States.” The idea was that State A had to give citizens of State B when traveling through or residing in State A the same civil rights—the same privileges and immunities—that state A gave its own citizens. In other words, it was (and is) an interstate nondiscrimination provision.
Barnett and Bernick do not dispute this traditional “interstate comity” understanding of Article IV (which is why the clause is called the Comity Clause). But they argue that a fundamental rights reading of the Comity Clause emerged in the antebellum era, and that this initially unorthodox reading was ultimately enshrined in the Privileges or Immunities Clause of the Fourteenth Amendment. “The original meaning of the Privileges and Immunities Clause of Article IV most likely required only that citizens of any given state be treated the same as local citizens when they traveled,” they concede. But this “comity-only legal meaning” was contested, and the consensus view fell apart over slavery. “By the eve of the Civil War,” they write, “both Democratic proponents and Republican opponents of slavery agreed that Article IV, Section 2 established a floor of fundamental substantive rights that could not be abridged by states.”
As I explain in my own recent book The Second Founding: An Introduction to the Fourteenth Amendment, the Privileges or Immunities Clause was likely an equality provision, intended to extend the antidiscrimination work of the Comity Clause to discrimination among a state’s own citizens. It is true that the traditional reading of the Comity Clause did not help free blacks who resided in states that discriminated against their own black citizens. Thus some antislavery thinkers did advance unorthodox readings of the clause. Best understood, however, the unorthodox view was not that the Comity Clause guaranteed a fundamental minimum of rights everywhere or authorized the national government to define a minimum content of such rights. It was rather that the clause also required equality among a state’s own citizens—exactly what the equality reading of the Privileges or Immunities Clause, which I advance in my own book, would accomplish.
The evidence amassed by Barnett and Bernick is consistent with the proposition that the states themselves would continue to define various property, contract, and other civil rights and that such regulations would vary from state to state but that all citizens within a state were entitled to enjoy those rights equally. I cannot go through all the evidence in this short review. Instead, I will compare three statements—one that unequivocally supports the fundamental rights reading, and two others that the authors take to support such a reading but that in fact do not. As to the former, Justice Bradley, in one of the lower-court cases that would come up to the Supreme Court as the Slaughter-House Cases, stated in 1871:
The “privileges and immunities” secured by the original constitution, were only such as each state gave to its own citizens. Each was prohibited from discriminating in favor of its own citizens, and against the citizens of other states.
But the fourteenth amendment prohibits any state from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges; but it demands that the privileges and immunities of all citizens shall be absolutely unabridged, unimpaired.
Barnett and Bernick argue that Bradley “expressly adopted a fundamental-rights reading of these privileges or immunities.” Bradley’s statement does seem to reject the equality-only reading of the Privileges or Immunities Clause, though, it should be noted, he expressly affirms the equality-only reading of the Comity Clause.
Consider, however, the authors’ invocation of John Bingham’s “ellipses” theory of the Comity Clause, which he articulated in the debates over the Fourteenth Amendment. Bingham, the principal author of the Fourteenth Amendment’s critical first section, explained how the Comity Clause had been violated and why another amendment, which would become the Fourteenth Amendment, was necessary. Bingham stated:
The citizens of each state (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (applying the ellipsis ‘of the United States’) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several states. This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and more vital in that great instrument.
This is unquestionably an unorthodox reading of the Comity Clause. Under Bingham’s reading, the clause is not merely an antidiscrimination provision with respect to out-of-state citizens, but instead guarantees all citizens of the United States their privileges and immunities as such citizens within every state.
But it is important not to overread Bingham’s theory; it is consistent with the idea that a state cannot deny to some part of its own population—such as free blacks—the privileges and immunities that it grants its other citizens under state law. That is, Bingham’s statement is consistent with the proposition that states still define and regulate the content of civil rights. His theory of Article IV is consistent with the idea that the equality work of the Comity Clause should be extended to intrastate discrimination—again, exactly what the equality reading of the Privileges or Immunities Clause would accomplish.
That would also be consistent with his speech seven years earlier on the admission of Oregon. Bingham objected to the proposed provision of Oregon’s constitution that would exclude free blacks from migrating to the state on the ground that it violated the Comity Clause. He demanded equality: “The equality of all to the right to live; to the right to know; to argue and to utter, according to conscience; to work and enjoy the product of their toil, is the rock on which [the] Constitution rests.” Nowhere did Bingham deny that states defined and regulated civil rights; he objected only to “the interpolation into [the Constitution] of any word of caste, such as white, or black, male or female.”
Consider next the authors’ treatment of John Pomeroy’s treatise, written as the Fourteenth Amendment was being considered for adoption. The authors claim that Pomeroy “interpreted Section 1 as overturning Barron v. Baltimore and applying at least the personal rights enumerated in the first eight amendments to the states.” The treatise, however, likely reveals the opposite: it reveals that the same kinds of rights guaranteed in the federal Bill of Rights were also guaranteed as a matter of state constitutional law, and the new Amendment would require only equality in and protection for those rights.
Pomeroy argued that the Fourteenth Amendment was intended to afford “complete protection against the discriminating legislation of the states which may attempt to invade their privileges and immunities.” Turning to the right to bear arms, Pomeroy lamented that, prior to the Fourteenth Amendment, if a state constitution guaranteed the right to bear arms, but the state denied that state-guaranteed right to blacks, there previously was no remedy in the national courts:
[L]et it be supposed that the constitution of a certain state contains clauses securing to the people the right of keeping and bearing arms; and declaring that no person shall be deprived of life, liberty, or property, without due process of law. Let it also be supposed that the legislature of the same state passes statutes by which certain classes of the inhabitants—say negroes—are required to surrender their arms, and are forbidden to keep and bear them under certain penalties. . . . An individual of the class mentioned . . . insists that the statutes in question are opposed to the Bill of Rights in the state constitution; the local courts settle the law against him, and hold that all this legislation is in conformity with the organic law of the commonwealth. Now, this person could obtain no redress from the national courts under the [existing] amendments to the United States Constitution . . . .
This is a result which is dismaying, and a remedy is needed. Such a remedy is easy, and the question of its adoption is now pending before the people.
The remedy to which Pomeroy referred was the proposed Fourteenth Amendment. He maintained that section one would “give the nation complete power to protect its citizens against local injustice and oppression.” Pomeroy’s treatise suggests that the new Amendment would empower the federal government to require equality and protection in the rights guaranteed under state constitutions and state law.
My reading of the evidence brought forth by Barnett and Bernick is that, with only a few exceptions, it can be read consistently with this equality view of both the Comity Clause and the Privileges or Immunities Clause. Only a few statements—Justice Bradley’s from 1871, a Western Law Journal article from 1845, and proslavery arguments on the eve of the Civil War—seem to adopt a fundamental rights reading of either clause. Thus, although Barnett and Bernick’s book gets many things right, which space constraints have prevented me from addressing—such as the reach of privileges or immunities to civil rights under state law and to public privileges, the remedial reading of the protection of the laws, and Congress’s capacious authority to enforce that guarantee—the authors’ central claim about fundamental rights likely misreads the historical evidence.