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The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham

My thanks to the Library of Law and Liberty for inviting me to respond to David Upham’s review of my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge U. Press 2014). Thanks also to Prof. Upham for taking the time to review the book and his gracious acknowledgement that it constitutes a step forward in our understanding of the Privileges or Immunities Clause. Unfortunately, in some of his more critical comments, it appears that Upham has misunderstood the theory of the book and (worse) missed much of the evidence presented in the book.

First, just to summarize the book itself. The effort is to recover the original meaning of the text. I proceed by investigating the historical usage of terms like “privileges and immunities of citizens in the several states” (language found in the Comity Clause) and “privileges and immunities of citizens of the United States” (language originally found in antebellum treaties and, ultimately in the Fourteenth Amendment). This reflects a methodology that seeks to identify patterns of usage in order to determine the likely understanding of a competent speaker of the English language aware of the content in which the text was communicated for ratification. Note: The book seeks to identify historical patterns of usage, not historically unanimous usage.

I conclude that, although the Privileges and Immunities Clause of Article IV seems superficially similar to the Privileges or Immunities Clause of the Fourteenth Amendment, in fact these two provisions are worded differently for a reason–they protect two distinguishable sets of rights. The Comity Clause’s protection of the rights “of citizens in the several states” was broadly understood as providing visiting citizens equal access to a limited set of state-secured rights. The 14th Amendment, on the other hand, protects the rights “of citizens of the United States,” and was broadly understood as protecting all constitutionally enumerated rights. These national Privileges and Immunities of American citizenship were understood to include not only the equal protection rights of the Comity Clause, but also the substantive rights of the first eight amendments (among others).

I arrive at this conclusion by exploring antebellum legal and political rhetoric, the drafting debates, and the public discussion of the 14th Amendment during the political debates of 1866. I do not build my case (as others have) on Bingham’s 1871 speech (which supports my view), or on any particular antebellum speech. The effort is to identify patterns of usage; no one piece of evidence, pro or anti, can establish a convincing pattern. So, although it is helpful to learn what Poland, Bingham and others said on specific occasions, the overall effort is to identify broad patterns of usage in an effort to determine the most likely original meaning of the text. In this regard, being able to trace a particular understanding of national privileges and immunities from the time of the Louisiana Cession, through the antebellum period, through the drafting debates, and into the public debates of 1866 is itself evidence of a common understanding (whether or not anyone in 1866 was conscious of the fact that they were repeating an idea which had first emerged decades earlier in discussions of United States treaties).

Counter-usage, of course, may signal either a different understanding, an emerging understanding, or nothing more than an outlier understanding. You cannot know without engaging the full body of evidence. And, in fact, there were numerous examples of counter-readings of “privileges and immunities,” both liberal and conservative. What these outliers failed to achieve, however, was sufficient agreement to establish a pattern of usage and common understanding.

This is why so much of Upham’s review misses the mark. He apparently believes that the arguments in my book can be successfully countered by presenting instances of disagreement. But one can always find instances of disagreement, particularly as political partisans vie for their favored view of a particular text. What we are looking for are arguments that prevailed, or arguments that reflect common (even if not unanimous) understanding. Worse, Upham appears to miss what are clearly established patterns of usage.

One example: Upham points out that the antebellum meaning of the Comity Clause was contested: There were, as he puts it “controversies and sharp divisions on the courts.” If by controversies, Upham means that there were arguments before the courts, then yes, there were. But, no, the courts themselves were not sharply divided—they were broad agreement about the equal protection reading of the Comity Clause, as were treatise writers. Upham tries to find disagreement by pointing to decisions that declined to define the full list of protected privileges and immunities. But no one is arguing about which rights received equal protection (a contested question). The issue was whether all such rights, whatever they were, received only equal protection: On this point courts broadly agreed: The Comity Clause did nothing more than provide visiting citizens a degree of equal access to a limited (if not completely defined) set of state-secured rights. Upham cannot reasonably claim otherwise.

The investigation of the debates in the 39th Congress regarding the Comity Clause reveals the same pattern. A majority of the members repeatedly rejected efforts to read the Comity Clause as protecting substantive national rights. Instead the majority embraced the very common antebellum equal protection reading.  Upham tries to claim that only Democrats followed the equal protection reading of the Clause and that Republicans were vague on the issue. This is not only false, I devote an entire section in the book to disproving it.

As just one example, the Radical Republican Samuel Shallabarger eventually conceded that Comity Clause provided nothing more than a degree of equal protection for visiting citizens—citing as he does so antebellum case law and treatises. Shellabarger wanted to provide broader protection but conceded the Comity Clause provided no additional protections. (See Lash, p. 167, CG, 39th Cong. 1st Sess. app. at 293) Yes, one can find Radical Republicans in the early months pressing for a broader reading of the clause. No, these arguments did not represent common understanding and they were repeatedly defeated—so decidedly that such arguments were eventually abandoned by the 39th Cong. Radical Republicans themselves.

The same debates that revealed the consensus equal protection reading of the Comity Clause also convinced John Bingham to redraft his proposed Fourteenth Amendment. Bingham’s efforts that Spring were directed at forcing the states to protect the substantive rights listed in the Bill of Rights. His initial draft used the language of the Comity Clause due to Bingham’s initial belief that this clause, properly read, required the states to respect the Bill of Rights.   After hearing his colleagues describe his proposed language as doing nothing more than enforcing the Comity Clause, Bingham withdrew his first draft and replaced it with a version that used the language of antebellum treaties—language that, if read consistently with antebellum rhetoric, would force the states to protect enumerated constitutional rights. If Bingham simply wanted to enforce the Comity Clause, it is exceedingly odd that he would do so by removing the language of the Comity Clause from his amendment. On the other hand, if Bingham’s effort was to protect all constitutionally enumerated rights, including the Comity Clause and the Bill of Rights, then it seems a bit more than a coincidence that he decided to use language that already had a long history of being understood as protecting enumerated constitutional rights.

Upham resists this reading and claims that there is no evidence that anyone distinguished the rights protected by the Comity Clause from the rights protected by the 14th Amendment’s Privileges or Immunities Clause. But the most famous speech in the historical record does exactly that, and does so expressly. Presenting the proposed final draft of the amendment to his colleagues in the Senate, Jacob Howard described the Privileges or Immunities Clause as protecting Comity Clause rights and other constitutionally enumerated rights. According to Howard:

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.

Howard here expressly distinguishes Comity Clause Rights from other enumerated rights and claims the amendment will protect them all. Howard’s speech was widely reprinted and was so influential that the proposed Fourteenth Amendment became known as the “Howard Amendment.” As the book explains, Howard’s description of the Clause tracks antebellum political and legal rhetoric which also understood the term “privileges and immunities of citizens of the United States,” as referring to all constitutionally enumerated rights, whether in Article IV or in the Bill of Rights.

Prof. Upham correctly points out that not everyone agreed. Sen. Poland, for example, included a line in one of his speeches that described the Clause as protecting only those rights covered by the Comity Clause. Actually, you can find other sporadic examples of disagreement—examples which I include in my book. But my book does not claim unanimous agreement about the meaning of the Privileges or Immunities clause, only common agreement. Howard’s speech (it probably goes without saying) was far more influential than Poland’s sentence. As the debates of 1866 proceeded, it became clear that the country understood the Clause as accomplishing much more than simply Comity Clause-style equal protection.

Remarkably, Prof. Upham does not address the public discussion of the Privileges or Immunities Clause that occurred prior to the elections of 1866. This discussion occupies the central part of the book! The elections that year constituted a referendum on the Fourteenth Amendment, with Republicans in favor and Democrats (under the leadership of Andrew Johnson) opposed. When Louisiana state officials led an attack killing a group of freedmen meeting in New Orleans in the summer of 1866, political commentary exploded with cries favoring the adoption of the Fourteenth Amendment and its protection of privileges and immunities of citizens of the United States, rights which Republicans repeatedly described as including the liberties listed the Bill of Rights. When the Southern Loyalists Convention met that September, the members adopted an “Appeal” that specifically pointed to the former rebel states’ abridgment of the privileges and immunities of citizens of the United States—privileges they expressly described as including both the rights listed in the Bill of Rights and Comity Clause rights. According to the Appeal:

 Statute books groaned under despotic laws against unlawful and insurrectionary assemblies aimed at the constitutional guarantees of the right to peaceably assemble and petition for redress of grievances; it proscribed democratic literature as incendiary; it nullified constitutional guarantees of freedom of free speech and a free press; it deprived citizens of the other States of their privileges and immunities in the States . . . .

The Appeal concluded by announcing its support of the Republicans in the forthcoming elections and calling for the adoption of the Fourteenth Amendment. The Republicans eventually enjoyed a landslide victory that Fall. Days after the election “Madison” of the New York Times wrote:

 The elections are now over. The country has decided between the policy of the President and Congress. . . . The one great issue really settled is, that the people will not lose the fruits of the victory won in the suppression of the rebellion. They demand and will have protection for every citizen of the United States, everywhere within the national jurisdiction—full and complete protection in the enjoyment of life, liberty and property, the pursuit of happiness, the right to speak and write his sentiments, regardless of localities; to keep and bear arms in his own defence, to be tried and sustained in every way as an equal, without the distinction to race, condition or color. These are the demands; these the securities required.

As had Howard, “Madison” understood the privileges and immunities of citizens of the United States included both Comity Clause rights (what the Corfield case had described as the equal right to pursue happiness) and other enumerated rights. Recognizing the distinction between the language of the proposed Amendment and the more limited language of the Comity Clause, President Andrew Johnson made an eleventh hour proposal to replace the proposed Amendment with a draft that used the language of the Comity Clause instead of Bingham’s reference to the privileges and immunities of national citizenship. Johnson’s effort to limit the scope of the Amendment, obviously, was unsuccessful. But it stands as one more piece of evidence that the both Democrats and Republicans understood the language of the Fourteenth Amendment as covering different and broader territory than the Comity Clause.

Over and over again, in antebellum rhetoric, in the drafting debates, and in the public discussion of the proposed amendment, we find evidence that the term “the privileges and immunities of citizens of the United States” was understood as distinguishable from the more limited language of the Comity Clause. The Privileges and Immunities of national citizenship included all constitutionally enumerated rights, both those equal protection rights of the Comity Clause and those enumerated rights in the Bill of Rights. The evidence is not unanimous, but substantial enough to establish a pattern of usage representing the likely original meaning of the Privileges or Immunities Clause.

Enough. Prof. Upham makes a number of other claims about the historical evidence with which I either disagree or I believe are countered by a larger body of evidence. It would take an entire book to fully respond.

So, I end my response by encouraging readers to engage this evidence by reading the book!

Reader Discussion

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on October 08, 2014 at 14:07:31 pm

It would sure be a very weird Comity Clause if it excluded all protection for all rights that are shared by both citizens and other persons, such as the right to possess personal property. This is one reason why I am not persuaded by Professor Upham.

He does have a point that American citizens established the Constitution, not vice versa, and so the privileges and immunities of American citizenship might be expected to pre-date the Constitution. But many rights listed in the Bill of Rights did pre-date the Constitution. Can there really be any doubt that a right listed in the Bill of Rights, which ALSO was prevalent from 1776 to 1791, is covered by the Privileges or Immunities Clause. I think there can be no doubt of that.

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Andrew Hyman
on October 08, 2014 at 14:26:21 pm

I am very grateful that Professor Lash has taken the time to write such an extensive response. I fear the length of my own review, with its focus on my disagreements, may have obscured the extent to which I agree with him. Namely, I agree (1) that the best method for discerning the original meaning of the Privileges of Immunities Clause is to try to identify "historical patterns of usage," (2) that one need not, and probably cannot, seek and rely on "historically unanimous usage"--for there is no such unanimity, and (3) that as to the evidence of this usage, a strong preponderance supports the conclusion that proponents of the Fourteenth Amendment counted freedom of speech and of the press among the "privileges and immunities" secured by the Amendment.

My disagreements, which have many interesting implications, concern what that the preponderance of that evidence indicates as to Republican understanding of Article IV's Privileges and Immunities Clause, and its relationship to the Amendment's Privileges or Immunities Clause. My tentative conclusion is that pro-Amendment Republicans generally believed (1) that Article IV's privileges comprehended a somewhat broad range of rights, including the freedoms of speech and press, and (2) that the Amendment was designed to give enhanced protection to Article IV privileges.

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David Upham
on October 08, 2014 at 15:03:31 pm

Mr. Hyman:

Good point. My tentative conclusion is that such human rights are not, properly speaking, privileges of citizenship, but are implicated by force of the entitlement to enjoy the privileges of citizenship; that is to say, for instance, to enjoy the right to acquire real as well as personal property, one needs the protection of the laws in one's property lawfully acquired. But I have found only a handful of authorities even hinting at this explanation.

Still, it is plain that nearly everyone who held to the absolute-rights reading of Article IV, that they thought it entitled citizens to security both by (equal protection) and against (due process) government--rights generally extended to all homo sapiens within the jurisdictions of the states.

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David Upham
on October 08, 2014 at 15:26:25 pm

Professor Upham (David hereafter), thanks for the reply. In your book review, you wrote: "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."

So are you now saying that the Constitution (e.g. in Article IV) does treat some human rights as privileges of citizenship, even if the Bill of Rights extends those rights to all persons? If that's what you're now saying, then I agree.

Professor Hamburger made a similar argument that rights of persons cannot be included among rights of citizens, which I found unpersuasive.

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Andrew Hyman
on October 08, 2014 at 23:14:39 pm

Right, but the difference between Article IV and the Fourteenth Amendment is that the former provides a broad entitlement to enjoy the privileges--so that requires one enjoy all the rights necessary to their enjoyment, e.g., the human right of security in bodily liberty is necessary to the citizen's privilege of travelling). The Privileges or Immunities Clause, however, simply prohibits the states from making or enforcing any laws abridging the privileges, and hence there is a need to also secure human rights both against (due process) and by (equal protection) the government.

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David Upham
on October 09, 2014 at 08:51:50 am

In a 2011 article, Professor Hamburger wrote: “It ... is not easy to understand how the [14th] Amendment's guarantee of the privileges or immunities of citizens can be understood to refer to the rights of persons protected by the Bill of Rights." But then in the same article he wrote about the Comity Clause: “the right to enter into contracts belonged to all persons and hence all citizens, and it thus apparently had to be available to visitors.”

I have a very hard time reconciling those two statements. It also seems noteworthy that Chief Justice Taney, in a rare part of his Dred Scott opinion that all the other justices agreed with, listed "rights and privileges of the citizen" as the rights listed in the Bill of Rights.

So, it's hard for me to understand what the problem is with recognizing that the rights of persons are a subset of the rights of citizens.

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Andrew Hyman
on October 09, 2014 at 16:42:05 pm

The main reason to be hung up on the distinction is the sheer text, its use of words like "privileges "immunities," and "citizens,", which seems contrasted with all "persons" (protected by the DP Clause) and some subset of "persons" (those who happen to be within a state's borders--protected by the EP Clause). If the text matters alot, it's hard not to conclude that citizenship matters alot.

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David Upham
on October 09, 2014 at 17:41:06 pm

As Professor Hamburger correctly indicated, the Comity Clause protects rights that only a state's citizens possess, plus the rights possessed by both non-citizens and citizens who permanently reside in the state. And the benificiaries of that protection are citizens from out of state who come to visit. People who are not citizens cannot be benificiaries of the protection provided by the Comity Clause.

By analogy, the PI Clause (in the 14th Amendment) protects both rights of citizens as well as rights of non-citizens, but the only benificiaries are citizens. So you see I do put great weight on the word "citizen." (But please keep in mind that it may be possible for the Equal Protection Clause to extend some protection of the PI Clause to non-citizens.)

As for the word "privileges," that word is critically important too, because it excludes rights that are merely abstract natural rights that have not been given governmental protection. The Comity clause did not protect natural rights even when those rights were listed in state constitutions, except insofar as such rights were already enforceable by the state’s own citizens. See generally Robert Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 GA. L. REV. 1117, 1188 (2009) (noting that “any privileges a state granted to its citizens in vindication of those [natural] rights had to be extended to visitors”).

One can give great weight to the words "citizen" and "privileges" while still adhering to Professor Lash's interpretation.

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Andrew Hyman
on October 09, 2014 at 17:58:01 pm

Just to be clear, I agree that great weight should be given to the words "privilege" and "citizen" in the P or I Clause. Only citizens are beneficiaries of the P or I Clause, just like the Comity Clause. (Though the Equal Protection Clause may allow extension of that benefit to non-citizens.) Moreover, the word "privileges" excludes free- floating natural rights, and instead only refers to rights that can be vindicated against the government.

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Andrew Hyman
on October 09, 2014 at 19:18:18 pm

P.S. My comment at 5:41 got caught in a filter, and so I didn't think it would show up. So I wrote a condensed version at 5:58. Then the comment from 5:41 showed up. :-)

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Andrew Hyman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.