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!