In its turn to history, the Court continues to look for national, judicially enforceable answers to questions on which the Constitution offers silence.
The Fundamental Rights of American Citizenship: Neither “Natural” nor Constitutionally “Enumerated”
What are the “privileges and immunities of citizens of the United States”? In the last week, this blog has featured two originalist answers to this question.
According to an “enumerated rights” reading, set forth by Kurt Lash, these “privileges and immunities” consist only in the personal rights found in the text of the Constitution (and chiefly in its first eight amendments). As Mark Pulliam remarked at American Greatness, this textualist approach provides a clear determination of the rights protected, and thus forestalls the activism whereby the judge confuses his “own personal predilections” with bona-fide “constitutional rights.” According to a second interpretation, offered by Devin Watkins, these privileges include not only these enumerated rights, but also various “natural rights” that defy enumeration. Both Lash and Watkins cite as supporting evidence the speech delivered by Jacob Howard at the beginning of the Senate’s debate over the proposed Amendment in spring 1866.
At the risk of further muddying the water, I’d like to contend here that both accounts are mistaken. The most important originalist evidence, including the Amendment’s text and Howard’s speech thereon, strongly indicates that the “privileges and immunities of citizens of the United States” were, strictly speaking, neither “natural” nor constitutionally “enumerated” rights, but as the term suggests, citizenship rights, and more specifically, the rights of American citizenship—the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic.
As the Amendment’s text strongly suggests, these rights are the privileges of United States citizenship. That is, these special rights belong to U.S. citizens qua U.S. citizens. In Howard’s words, the rights belonged to “citizens of the United States, as such, and as distinguished from all other persons not citizens of the United States.” John Bingham likewise told his colleagues in the House that Privileges or Immunities Clause would protect the rights of “all the citizens of the Republic” while the Equal Protection and Due Process Clauses would secure “the inborn rights of every person within its jurisdiction.” Various other prominent participants in the adoption of the Amendment said much the same thing. That summer, Indiana’s Governor explained that the Clause would secure “certain great privileges and immunities” that belonged to the U.S. citizen “as such,” while the Due Process and Equal Protection Clauses would “throw the equal protection of the laws around every person who may be within the jurisdiction of any State, whether citizen or alien . . . not only as to life and liberty, but as to property.”
Senator Howard and Justice Washington Provide a Definition
What are these privileges of “citizens of the United States”? Senator Howard looked first to our Constitution’s text to see (1) that the Constitution presupposed the existence of U.S. citizenship (e.g., the nine-year durational citizenship prerequisite for Senate membership), and (2) that the Constitution, like the Articles, sought to “secure and perpetuate” this citizenry’s unity by guaranteeing the citizens of each state the “privileges and immunities of citizens” in the several States.
For a general definition of these “privileges and immunities of citizens,” Howard then relied on Justice Washington’s famous opinion in Corfield v. Coryell:
[Rights] which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign.
According to this definition, it seems, the privileges are fundamental in two respects: (1) fundamental to citizenship in any free government, and (2) fundamental to citizenship in the free governments of the American Union from the beginning.
Not Natural Rights
As privileges of citizenship, these rights were not, strictly speaking, “natural” rights, but civil and conventional; the privileges arose from the convention of membership in the American Republic. Hence, for instance, these privileges did not comprehend such inalienable human rights as life, liberty, and pursuit of happiness.
But Watkins contends that Justice Washington included these “natural rights” among these privileges. To do so, Watkins’s relies on an obvious misrepresentation of Washington’s language. After giving his general definition, Washington wrote, in the next sentence, that these “fundamental” privileges may “be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” But Watkins omits Washington’s phrase that the privileges may be “comprehended under” these general heads, and instead substitutes the word “including.” Watkins thereby obfuscates the distinction between natural rights, mentioned as category headings in one sentence, and the privileges of citizenship, partially enumerated in the next. Washington, then, presented these natural rights not as exemplars of privileges of citizenship but as principles under which to categorize these privileges. Only in the following sentence did Washington offer a very partial enumeration of these privileges—including the rights of travel and commerce throughout the several states.
Nor Constitutionally Enumerated Rights
Conversely, pace Lash, these privileges of U.S. citizenship were not rights born from the text of the U.S. Constitution. The convention establishing these civic privileges was not the establishment of the Constitution but the establishment of the United States and the citizenry thereof. After all, the Constitution did not ordain and establish the American people; the American people ordained and established the Constitution.
Hence, as Senator Howard indicated by quoting Justice Washington, the privileges of U.S. Citizenship are as old as the Republic; to find them, we should look back to Year 1 of the United States—or 1776.
Why then, did Senator Howard look to rights listed in constitutional amendments adopted in 1791—the sixteenth year of the “Independence of the United States”? Probably for the same reason he looked to the “privileges and immunities of citizens” of Article IV, as expounded by Justice Washington in 1823. As Howard noted, such constitutional law merely “secured,” “guarantied” or “recognized” pre-existing rights. Such law did not create these rights, but provided very strong evidence thereof. And to identify the fundamental rights of citizenship, severally recognized by the American states from 1776, perhaps the best place to look would be the fundamental rights that the same American states jointly enumerated in the Constitution just a few years later.
Howard’s Selective Enumeration Explained
Still, enumeration in the federal Constitution cannot be the sole evidence. On the one hand, such enumeration may not be necessary, as some fundamental rights (like the rights of travel and reside, and to acquire real as well as personal property) perhaps seemed so obviously fundamental to citizenship and their violation so unlikely, as to be omitted from the Constitution.
On the other hand, such enumeration was not sufficient, for some of the rights listed were fundamental not to citizenship but to universal human dignity, and in some cases did not reflect a multistate American consensus as of 1776. That is to say, some enumerated rights failed to satisfy both parts of Justice Washington’s general definition.
For this reason, Howard proceeded to enumerate only some of the rights set forth in the first eight amendments. As indicated by both the text of his speech, and his prepared notes (recently discovered by Andrew Hyman), Howard carefully listed only certain rights. He included such rights of civic membership as speech, assembly, petition, and arms-bearing as well as various Anglo-American procedural rights that, like the writ of habeas corpus or trial by jury of the defendant’s vicinage, primarily benefited the community’s members—even if such rights were also extended to aliens. Conversely, Howard conspicuously omitted (1) rights that respected basic human dignity or natural rights (such as religious free exercise or the immunity against compulsory self-incrimination), and (2) rights that was not universal to the states from 1776 (such as religious non-establishment and jury trial in civil cases).
Neither the “natural rights” nor “enumerated” rights readings can explain Howard’s selective enumeration.
Although not enumerated in the Constitution, these fundamental privileges of citizenship were not indeterminate—but defined. According to the formal written report of the Joint Committee on Reconstruction, the Privileges or Immunities Clause, together with the Due Process and Equal Protection Clauses, would “determine the civil rights and privileges of all citizens in all parts of the Republic.” This report is the most important evidence of the Amendments original understanding; drafted by the chairman Senator Fessenden, the report was signed by Howard and all the Republican members of the Committee (save those who were not in Washington upon publication), and very widely praised and reprinted.
The “privileges and immunities,” then, had a determined meaning, even if “enumerate[ing]” these “many” rights might be “tedious” and even “difficult,” as Justice Washington had said, and even if such enumeration could not define the rights in their “precise nature and exact extent,” as Senator Howard claimed.
Unfortunately, neither Justice Washington nor Senator Howard left us a complete list of these determinate and fundamental rights of American citizenship. Still, they left us a sturdy test—one not amenable to judicial activism: to qualify as a “privilege” or “immunity” of U.S. citizenship, the right must be both fundamental to citizenship and enjoyed throughout the United States from the beginning of our Republic. This answer to the question is close to the same answer given by the Supreme Court in Washington v. Glucksburg—but with two important qualifications: the (1) rights must be deeply rooted in our traditions of citizenship, and (2) those traditions must be traceable to a genuine American consensus in 1776.