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The Privileges or Immunities Clause and Unenumerated Rights

In a recent essay at American Greatness, Mark Pulliam took the Supreme Court and libertarian constitutional scholars to task for supporting the doctrine of substantive due process and the concept of unenumerated constitutional rights.  Pulliam in particular objects to the efforts of what he calls “false” originalists to reverse the Supreme Court’s holding in The Slaughterhouse Cases[1] and resurrect the long-ignored Privileges or Immunities Clause of the Fourteenth Amendment as a source of unenumerated constitutional rights.  In a response posted in this space, Professor Mike Rappaport insists that “[t]he Slaughterhouse Cases misinterpreted the Privileges or Immunities Clause of the Fourteenth Amendment” and that “[v]irtually every legal scholar, no matter of what viewpoint, believes the majority opinion in this case was mistaken.”

It is because of scholars like myself that Rappaport cannot write every legal scholar believes Slaughterhouse was mistaken. In fact, the historical record strongly suggests that Justice Miller was correct to lead a majority in Slaughterhouse to reject the idea that the Privileges or Immunities Clause protects unenumerated absolute rights. Pulliam is absolutely right to question the originalist reasoning of those scholars who wish to reverse Slaughterhouse and open the door to judicial construction and enforcement of unenumerated rights, natural or otherwise.  But Pulliam is wrong to further suggest that the Court erred in incorporating the Bill of Rights against the states.  Although the Supreme Court has been wrong to enforce that doctrine under the Due Process Clause, it would be entirely right to do so under the Privileges or Immunities Clause. Further, doing so would not require reversing Slaughterhouse or open the door to judicial construction of unenumerated rights.

The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.”[2] On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.”[3] On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.”[4] The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”[5]  Finally, in 1871, Bingham explained:

Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . .

Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.”[6]

This was Bingham’s vision—a vision embodied in the text he drafted and presented to Congress and the public. The rights of American citizenship, the privileges or immunities of citizens of the United States, were those rights “expressly enumerated in the Constitution,” which prior to the adoption of the fourteenth amendment “were only limitations on the power of Congress, not on the power of the States.” As Texas Judge and Constitutional Treatise writer George Paschal wrote only one week after the Secretary of State declared the ratification of the Fourteenth Amendment, “anyone doubting the tremendous importance of the amendment “should know that the national bill of rights has, by a common error, been construed not to apply to or control the States.” This is what the amendment was meant to change.

Nothing in Justice Miller’s opinion in Slaughterhouse contradicts the idea that the “privileges or immunities of citizens of the United States” include the rights enumerated in the 1791 amendments to the Constitution.  The case involved nothing more than whether the Privileges or Immunities Clause protected the unenumerated right to pursue a trade (the slaughterhouse trade in that case). To the degree that Miller said anything else about the scope of the Clause, it was no more than dicta. But, in fact, Miller expressly included rights enumerated in the First Amendment as the privileges or immunities of national citizenship. According to Miller, “[t]he right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution.”[7]

Miller’s inclusion of the rights of habeas corpus is telling.  The privileges or immunities of citizens of the United States include all enumerated rights. As John Bingham himself explained, this “chiefly” involves those listed in the Bill of Rights, but it also includes other constitutionally enumerated rights, such as the rights of habeas corpus listed in Article I, Section 9, and the equal rights of traveling citizens enumerated in Article IV, Section 2 (the Comity Clause). When Jacob Howard introduced the Privileges or Immunities Clause to the Senate, he also listed only enumerated rights, but included both those listed in the first eight amendments as well as the equal treatment rights of Article IV, Section 2.

Miller seemed to believe that the enumerated rights of national citizenship included both those enumerated in the Constitution and those established by Congress under their enumerated powers and protected against state interference by the Supremacy Clause (congressional power to regulate interstate waterways, for example). But this theory does not in any way call into question the idea that the Privileges or Immunities Clause has the effect of binding the states to respect the personal rights listed in the Bill of Rights.  It is time that Slaughterhouse be delivered from the accusation that it killed the incorporation of the Bill of Rights. It did not. That dubious privilege belongs to the odious case of United States v. Cruikshank (1876), where the court ruled the Bill of Rights did not bind the states and, in doing so, cited Barron v. Baltimore (not Slaughterhouse).

But what of unenumerated rights? Would not applying the Bill of Rights against the states have the effect of applying the Ninth Amendment against the states? And does not this amendment declare that there are “other rights” beyond those enumerated in the constitution?

Scholarship on the Ninth Amendment is broad and deep, as are the various theories regarding its meaning. Suffice it to say for now that when John Bingham and Jacob Howard listed the enumerated rights now enforceable against the states by the Privileges or Immunities Clause, they named those listed in the first eight amendments.  It seems fairly obvious why they left the Tenth Amendment off the list: This is an amendment understood at the time, as it is now, as a text declaring the principle of constitutional federalism and the reserved right of the people in the several states to retain control over all “powers not delegated” to the national government. What scholars often fail to recognize, however, is that at the time of Reconstruction, both the Ninth and Tenth Amendments were regarded as provisions declaring the reserved powers and rights of the people in the several states.

Since the moment of its ratification, the Ninth Amendment was associated with the reserved right of the people to local self-government. This is how James Madison described the Ninth and Tenth Amendments in his speech opposing the original Bank of the United States.  This is also how the Ninth and Tenth Amendments were described throughout the antebellum period. In fact, by the time Congress debated the Fourteenth Amendment, the Ninth Amendment had been wielded in support of some of the most “pernicious” doctrines of state rights.

In the original debates on the admission of Missouri, proponents of slavery insisted the Ninth and Tenth Amendments prevented Congress from banning slavery in the territory.[8]  In his concurring opinion in Dred Scott v. Sanford,[9] Justice John A. Campbell declared that “the ninth and tenth amendments to the Constitution were designed to include the reserved rights of the States, and the people.”[10]  In his speech supporting South Carolina’s secession from the Union, Democrat Judah P. Benjamin quoted the Ninth and Tenth Amendments as “an important addition made to the Constitution by which it was expressly provided that it should not be construed to be a General Government over all the people, but that it was a Government of States. . . . The language of the ninth and tenth amendments to the Constitution is susceptible of no other construction.”[11]  In his speech opposing the Thirteenth Amendment, New York’s Fernando Wood declared “[t]he control over slavery, and the domestic and social relations of the people of the respective States, was not and never was intended to be delegated to the United States, and cannot now be delegated except by the consent of all the States. Articles nine and ten of the Amendments to the Constitution are conclusive on this point.”[12]  In the Thirty-Ninth Congress, Pennsylvania Democrat Benjamin M. Boyer opposed Section Two of the Fourteenth Amendment and quoted the Ninth and Tenth Amendments as evidence that Congress had no right to “disfranchise the majority of the citizens of any State on account of their past participation in the rebellion.”[13]  This practice of linking the Ninth Amendment to the rights of the states continued after the Thirty-Ninth Congress. In the Fortieth Congress, opponents of the 1870 Enforcement Act insisted that its passage violated the state rights principles of the Ninth and Tenth Amendments.[14]

In short, there is good reason why John Bingham and Jacob Howard would leave the Ninth Amendment off their list of personal rights protected by the Privileges or Immunities Clause. This amendment was not understood as a fount of unenumerated personal rights. It, like the Tenth Amendment, represented a declaration of the reserved powers and rights of the people in the several states. Efforts to rely on the Ninth Amendment as somehow supporting an unenumerated rights reading of the Privileges or Immunities Clause cannot be supported in light of the actual historical evidence.

In conclusion, Mark Pulliam is quite right to object to efforts to reverse Slaughterhouse and read the Privileges or Immunities Clause as authorizing judicial construction and enforcement of unenumerated rights.  The Clause does nothing more than protect the enumerated rights of national citizenship, rights enumerated in the Constitution.  But he is wrong to suggest that this does not support the incorporation of the Bill of Rights. This was the declared goal of the man who drafted the Privileges or Immunities Clause. It is time the Supreme Court recognize this historical fact and place incorporation where it belongs.

[1] 83 U.S. 36 (1872)

[2] Cong. Globe, 39th Cong., 1st Sess., 1087-95 (February 28, 1866).

[3] Cong. Globe, 39th Cong., 1st Sess., 1290–96 (March 9, 1866).

[4] Cong. Globe, 39th Cong., 1st Sess., 2530–45 (May 10, 1866).

[5] Id.

[6] Cong. Globe, 42d Cong. 1st Sess., Appendix, 81-86 (March 31, 1871).

[7] Slaughterhouse Cases, 83 U.S. 36, 79 (1872).

[8] See Annals of Cong., 15th Cong., 2d sess. 1197 (February 1819) (Remarks of Mr. Scott from Missouri).

[9] 60 U.S. 393 (1857).

[10] Dred Scott, 60 U.S. at 511.

[11] Cong. Globe, 36th Cong., 2nd Sess., 212-17 (December 31, 1860).

[12] Cong. Globe, 38th Cong. 1st Sess., 2941 (June 14, 1864).

[13] Cong. Globe, 39th Cong., 1st Sess., 2467 (May 8, 1866).

[14] See Cong. Globe, 41st Cong., 2d. Sess., appx. 354 (May 18, 1870) (statement of Sen. Hamilton) (citing the Ninth and Tenth amendments together as establishing the principle of enumerated federal power and protecting the reserved sovereignty of the states); id. at app’x 431 (May 27, 1870) (statement of Rep. Swan) (same).

Reader Discussion

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on March 21, 2019 at 07:57:02 am

Thank you, Professor Lash!

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Mark Pulliam
on March 21, 2019 at 08:55:01 am

Interesting. In an article on another blog dealing with the structural purpose/intent of the 9th and 10th Amendments, a commenter made what I take to be the similar point, that they serve as suspenders (my words, not the commenter's) to the belt of enumerated Congressional powers, to reinforce the principle that the national government's powers were limited exclusively to those enumerated.

But I am confused by such a theory. First, as we all know, Madison opposed a bill of rights on the old inclusio unius ground. The bill of rights is understood as a list of personal individual rights, and the fear was that a finite list might be taken to suggest there were no others. But if the 9th & 10th amendments are simply additional reminders that Congress may not legislate beyond its enumerated powers, then that had to mean that someone believed that the mere positive enumeration of powers standing alone would not be understood to so limit Congress? Right? Because what else could be the purpose? It's almost as if the Framers had second thoughts about their original handiwork and the theory on which it was based, because it should have needed no additional text to reinforce the idea that what was not specifically granted to Congress nor specifically prohibited to the States was a matter for the people in their capacities as citizens of their several States. Even with respect to the First Amendment: that Congress shall make no law abridging the freedom of speech does not mean that the legislature of Pennsylvania could not make such a law applicable within that commonwealth (subject to its own constitution, of course).

Second, Lash's interpretation makes either of the 9th or 10th Amendments redundant of the other. It seems to me that the 10th alone fully and completely expresses what Lash says is the meaning of both, that [The 9th] amendment was not understood as a fount of unenumerated personal rights. It, like the Tenth Amendment, represented a declaration of the reserved powers and rights of the people in the several states. I just don't see any way to understand the 9th other than as a "fount of unenumerated personal rights." That the drafters of the 14th Amendment may not have understood it that way is, if not irrelevant, less relevant that what its own drafters understood. However, for all practical purposes, as I said elsewhere, the "Overton window" for judicial utilization of the 9th for the enunciation of additional personal rights based on natural law--rights whose thrust would necessarily have been, like those in Amendments 1 - 8, limitations on the power of the national government over individual citizens--closed definitively on April 12, 1861, if not before.

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QET
on March 21, 2019 at 11:25:24 am

Professor Lash,

What you say here contradicts Kent's definition of privileges and immunities, which was submitted as authoritative by Senator Trumbull on April 4, 1866 and by Representative Lawrence on April 7, 1866. According to Story, privileges and immunities = personal security, personal liberty (freedom of locomotion), and property.

“The privileges and immunities conceded by the Constitution of the United States to citizens of the several States were to be confined to those which were, in their nature, fundamental, and belonged of right to the citizens of all free Governments. Such are the rights of protection of life and liberty, and to acquire and enjoy property”

You also do not mention the fact that everyone who spoke on the subject insisted that the 14th secures the same rights as the Civil Rights Act of 1866, which explicitly only secures these three absolute rights. See, for example, Latham:

“The ‘civil rights bill’ which is now law…covers exactly the same ground as this amendment.” (Rep. George R. Latham of West Virginia, May 29, 1866).

So the 14th only incorporates those parts of the Bill of Rights that have to do with the rights of person and property (a.k.a. civil rights or the rights of citizens), and only if a State is failing to protect those rights in the same why for all its citizens--in particular one set of laws for people of one race and another for another.

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GTT
on March 21, 2019 at 11:50:44 am

I continue to strongly suspect Professor Lash is 100% correct. But even if one supposes that the clause is similar to the Comity Clause in covering more than just enumerated constitutional rights, it’s very telling that supporters of that view refuse to complete the analogy to the Comity Clause: after all, the Comity Clause includes fundamental rights but ONLY to the extent that current state governmehts also protect them for in-state citizens. By analogy, there’s just no way that the PI clause of the 14th Amendment includes any rights that are not already protected by federal law in federal jurisdictions like the District of Columbia, Puerto Rico, et cetera. So the very selective and peculiar reliance on the Comity Clause by his opponents us a big point in Professor Lash’s favor. And those opponents who construe the Comity Clause differently are fighting against 230 years of consistent interpretation by virtually everyone.

Moreover, the Ninth Amendment simply protects “retained” rights; only enumerated constitutional rights are “retained” by citizens in jurisdictions like the District of Columbia, where the federal government has plenary power (instead of limited & enumerated powers), and therefore the Ninth Amendment does not do anything for nationwide rights (e.g. the rights of citizens of the United States) unless we implausibly construe “United States” as omitting the District of Columbia and other exclusively federal jurisdictions.

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Andrew T. Hyman
on March 21, 2019 at 13:07:52 pm

I continue to believe Professor Lash is 100% correct. But even if one views this clause of the 14th Amendment as similar to the Comity Clause in covering more than just enumerated constitutional rights, it’s very telling that supporters of that view almost always refuse to complete the analogy to the Comity Clause: after all, the Comity Clause includes fundamental rights but ONLY to the extent that current state governments also feel inclined to protect those rights for in-state citizens. If that feature of the Comity Clause is transferred to the PI Clause of the 14th Amendment, then the PI clause could only include rights that are already protected currently by federal law in federal jurisdictions like the District of Columbia, Puerto Rico, et cetera. Professor Lash’s opponents usually deny this limitation on the PI clause’s scope, which is a big point in Professor Lash’s favor, because selectively picking and choosing admirable parts of the Comity Clause has no historical basis in the 1860s. Those few opponents of Lash’s interpretation who construe the Comity Clause differently from its usual meaning (and who insist that its protections are not limited by how a state wants to protect its own citizens) are fighting against 230 years of consistent interpretation by virtually everyone. There are also a few opponents of Lash’s interpretation who do limit the 14th Amendment’s PI Clause protection of unenumerated rights to rights that are currently endorsed by Congress, but those opponents of Lash’s interpretation nevertheless agree that enumerated constitutional rights are also protected by the PI clause, so there is considerable overlap between these plausible theories, and traditional canons of interpretation require adopting the theory that is most reconcilable with state law —— which is Lash’s interpretation.

As for the Ninth Amendment, those scholars who want to apply it against the states via the 14th Amendment implicitly misconstrue the “United States” (in the PI Clause) as omitting the District of Columbia and other exclusively federal jurisdictions. After all, the Ninth Amendment does not do anything in the District of Columbia, because the federal government has plenary power there, and no rights are retained there by virtue of any enumeration of specific powers.

So, I agree with Lash.

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Andrew T. Hyman
on March 21, 2019 at 13:55:42 pm

QET, I don't understand your first point. But, if I understand your second point correctly, the answer is straightforward. The Ninth Amendment CANCELS the exclusio unius canon with respect to the enumeration of rights (mostly in Amendments 1-8). The Tenth Amendment AFFIRMS the exclusio unius canon with respect to the enumeration of powers (mostly in Article I, Section 8). So both amendments are needed, and I think this is also Professor Lash's view.

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Andrew T. Hyman
on March 21, 2019 at 14:18:10 pm

GTT, Professor Lash provides greater detail in a new law review article that became available earlier this month:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3351142

Regarding the 14th securing the same rights as the Civil Rights Act of 1866 (CRA), Professor Lash's position is that the CRA rights are dealt with by the second sentence of the Fourteenth Amendment, but not by the PI Clause.

Regarding the rights of person and property, I understand Professor Lash's position to be that the first eight amendments are all about rights of person and property, and that the PI Clause is confined to rights of person and property, and moreover that the PI Clause is further confined only to those right f person and property enumerated in the Constitution. Incidentally, the quote you give from Kent is similar to Bushrod Washngton's statement in Corfield v. Coryell, but notably Bushrod Washington also agreed that there are further limitations upon the rights of person and property in question (i.e. they must be recognized by a state as belonging to its own citizens). See:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3254489

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Andrew T. Hyman
on March 21, 2019 at 14:47:28 pm

My first point not so much a point as a muddle.

As to my second, your statement seems to confirm my point that the 9th was intended as a fount of unenumerated personal rights, contra Lash. Both Madison and various anti-Federalists proposed many more individual rights for inclusion in the list than eventually were enacted, suggesting that the 9th was substituted as a kind of conceptual fount from which at least those, and possibly others, might be drawn at a later time.

Of course, the issue was, how could they be so drawn? Because they were deliberately excluded from the original set of amendments, it would seem to be the case that they could be drawn only by the people via future constitutional amendment, just as the first 8 had been. In which case it would have been improper for the judiciary ever to draw them, seeing that the people themselves (or at least the Framers of the Bill of Rights), had rejected them (or not insisted on them) in the first go-round. So in that sense Lash's view would make sense--the 9th could not be a fount from which the courts could draw.

But if that is so, then the 9th was (and is) nothing more than an anodyne for the anti-Federalists of the day who were still grousing about the Constitution, without any operative effect or intent--nothing but a general reminder to the nation that there were other rights available for inclusion in the Constitution should the people ever decide to include them--because even in its absence the people could always amend the Constitution to add further rights, drawn from whatever fount they would, including any that had originally been proposed but had not been enacted in the first effort.

And it goes without saying that, insofar as individual rights are concerned (as opposed to State powers), the 9th was unnecessary to enable people, or even to remind them, that they could enact whatever rights they wished at the State level.

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QET
on March 21, 2019 at 15:10:46 pm

QET, suppose that there were no Ninth Amendment. When Congress requires men to wear hats in public (or some other ridiculous thing), you and I will argue in court that the enumerated powers of congress do not include any power to regulate attire within the states, and we would argue that the commerce power is insufficient because hats are no longer in the stream of interstate commerce once they have been purchased. But then DOJ will argue: "Sorry, but the Constitution includes a list of your rights, and going in public without a hat is not among them." That's where the Ninth Amendment comes in. With it, we can respond to DOJ that the list of rights in the Constitution is not exclusive, but without it we have to start wearing hats. Thus, the unenumerated rights to which the 9th Amendment refers are those that we have in each state (but not in D.C.) because of the enumeration of powers in the Constitution. Don't take my word for it. Here's Madison:

"It has been said, that in the Federal Government [a declaration of rights is] unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent...."

But don't take Madison's word for it. The 9th Amendment itself clearly implies that the enumeration of POWERS in the Constitution may be construed to deny or disparage unenumerated rights. Only the enumeration of RIGHTS in the Constitution cannot be construed that way.

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Andrew T. Hyman
on March 21, 2019 at 15:21:20 pm

Professor Lash is correct in his analysis of the intentions of the framers of the 14th amendment: the privileges or immunities clause was intended to the substantive core of the amendment and the rights enumerated in the Bill of Rights were privileges or immunities of US citizens protected against abridgement by the States. That is, contrary to Pulliam, the 14th amendment “incorporated” the provisions of the Bill of rights. But Lash is also correct to point out that the 9th and 10th amendments are not, properly speaking, part of the Bill of Rights. Rather, they are instructions on how to interpret or construe the previous eight amendments. It is well known that James Madison, who took the leading role in passing the Bill of Rights, never waivered in his opinion that it was a bad idea—even a dangerous idea. He endeavored to propose a list of rights that was simple and uncontroversial, but he worried that no list could ever be complete. The necessary legal and constitutional construction, however, must be that whatever is not included is excluded. The future course of events, Madison argued, would undoubtedly reveal other rights that were needed to restrain the excesses of intrusive government. Thus he included in the ninth amendment the interpretative rule that because the previous eight amendments contain an “enumeration” of “certain rights” that fact “shall not be construed to deny or disparage others retained by the people.” In other words, the list of enumerated rights contained in the first eight amendments is not exhaustive and should never be read as a complete list of rights. There are other (unenumerated) rights that are retained by the people, and these may be advanced when necessary to secure the principles and purposes for which the Constitution was founded. And the unenumerated rights have the same constitutional status as the enumerated rights.
I differ with Professor Lash on his approval of the truncated reading of the privilege or immunities clause by the Slaughterhouse opinion. The majority opinion held that the Louisiana monopoly did not implicate any privilege or immunity of US citizenship. But, of course, monopoly is an open assault on the right to property, certainly a privilege or immunity of US citizens. James Madison in his essay “Property” written shortly after the ratification of the Bill of Rights noted that property was a comprehensive right that included freedom of speech, free exercise of religion, and the free use of one’s faculties,” among other rights. Madison’s famous summary is that “as a man is said to have a right to his property, he may be equally said to have a property in his rights.” More specifically, Madison avers “that is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”
Here Madison describes the free choice of an occupation as a necessary means to acquire property. As a means necessary to the acquisition of property, the right to choose an occupation is an essential part of the right to property. The right to property is, of course, a natural right. The right to choose an occupation, may or may not rise to the level of a natural right, but as a means to the accomplishment of a natural right it is surely a civil right or a privilege or immunity of citizenship. Surely, it is one of the rights “retained” by the people, but not enumerated in any of the first eight amendments. It is one of the privileges or immunities that cannot be abridged by the state of Louisiana. The Slaughterhouse majority was thoroughly mistaken on this issue.

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EDWARD ERLER
on March 21, 2019 at 15:46:00 pm

P.S. My sixth sentence can be clarified: “Thus, the unenumerated federal rights to which the 9th Amendment refers are those federal rights within the borders of each state (but not in D.C.) that limit the federal government because of the enumeration of powers in the Constitution.”

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Andrew T. Hyman
on March 21, 2019 at 15:57:19 pm

"...but notably Bushrod Washington also agreed that there are further limitations upon the rights of person and property in question (i.e. they must be recognized by a state as belonging to its own citizens)"

Finally someone includes the concept of STATE level P&I as distinct from those P&I's of NATIONAL citizenship.

It strikes me that this was missing from the previous discussions / comments; consequently, it became more difficult to accept Lash's contention that P&I (national, that is) was limited to those enumerated rights guaranteed by the first eight amendments to COTUS.

But what of those other rights?
Some questions.
Are they natural rights, in the sense that they are both universally recognized? are fundamental to a free government? are they essential to the proper functioning of the regime? AND, are they within the (anticipated / intended) purview of the LIMITED "partly national - partly Federal" allocation of powers proposed and ratified by the Framers. Are they simply, or additionally those rights endowed by the Legislature via positive law?

OR

Were they intended to find protections within the jurisdiction of STATE constitutions and Legislation in a manner best suited to the several States as those States perceived them?

It follows that STATE P&I is NOT coextensive with NATIONAL P&I. It can only be greater both by virtue of the text of COTUS (1791) and of the 14th. The national government guarantees rights under the first eight amendments, as well as those rights secured by COTUS itself. A State may not limit those rights. It can only provide, via positive law, additional P&I deemed appropriate to the functioning of a State Level republican form of government.

I would add that it is not unreasonable to assert that the Drafters of the 14th Amendment DID NOT intend to completely vitiate any and all State Police powers. As Bingham said, it was limited to the first eight and nothing more. Admittedly, this view was not shared by the Radical Republicans - BUT they did not hold sway. Bingham won.

If State police powers were not eliminated, albeit being somewhat diminished, did it not remain within the purview of the States to continue to afford, via positive law, such State level P&I as they had theretofore provided? Consider licensing - may a state require licensing for certain professions? May one State choose to do so while another does not?

To argue that P&I is all inclusive AND must be defended by the Federal Government is to a) reduce any possibility of State level experimentation AND b) to eliminate any discretionary state Police Powers.
I submit that this was neither the intention NOR the effect of the 14th.

Rather, the 14th protects the P&I attendant upon NATIONAL citizenship. It does not reach STATE level P&I, except to the extent that such P&I infringes Nation rights. Neither the Framers of COTUS nor the Drafters of the 14th would have supposed that a) these "unenumerated rights (P&I) were ALL worthy of protection or complete non-infringment (even Bushrod Washington admitted this), b) that the National government was capable of regulating them and c) that a government so empowered, so extensive could long be kept within its Constitutional limitations. Both groups of men believed these matters were best left to local legislation and discretion.

Also, were we to rejuvenate the concept of STATE P&I / state police powers, we may find that we are better able to address many of the inflammatory and seemingly irresolvable issues of the day, SSM, "privacy", abortion, licensing,etc AND would limit the neverending overreach of the Federal Branches of government into our lives.

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gabe
on March 21, 2019 at 16:30:34 pm

I'm not persuaded. By your reasoning, the 9th amendment alone would be all that was needed to accomplish the desired result; it would have been pointless to enumerate any rights in the Bill of Rights. As someone indicated, there are individual rights in the main body of the Constitution itself, so any further enumeration capped by a general saving amendment would have been unnecessary.

As far as your hat/DOJ example--we can further assume that the DOJ would not accept our assertion, and would then prosecute us for not wearing hats, whereupon we would raise the 9th amendment as a defense, and the court would then have to find that we had an unenumerated right not to wear hats, which I suppose was once a plausible vision of how the 9th might practically operate, but I quoted yesterday a recent article noting that the 9th has not once been the basis for any Supreme Court decision, and offered that the time period within which the 9th political-realistically could have been operationalized by the judiciary in that manner ended on or before the outbreak of the Civil War. And per my first response to you in this comment thread, in thinking it over, it is not apparent to me that any such right could even have been pronounced by the judiciary in the first place, but perhaps only by the people via further amendment.

I further don't understand the concept of the 9th referring to "rights we have in each state (but not DC) because of the enumeration of powers in the Constitution." Whatever rights we have in any state must be found in that state's constitution, laws or judicial decisions, and would be limited only to that state. So Maryland could pass a law that said it was our right not to wear hats in Maryland, but if no other state had such a law, and we weren't in Maryland, the DOJ could still prosecute us and the 9th would not, I think, be understood to grant us the no-hat right in all states.

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QET
on March 21, 2019 at 16:47:02 pm

Mr. Erler, you say that the Ninth Amendment is an instruction on how to interpret or construe the previous eight amendments. Thus, it is not an instruction on how to interpret the enumeration of powers in the Constitution. So why cn't the enumeration o powers be construe to deny or disparage unenumerated rights? I so, I am puzzled by why you would thin that "the unenumerated rights have the same constitutional status as the enumerated rights."

Also, you quote Madison, who refers both to "property in the general sense of the word" and also "property strictly so called.” Which way do you think that word is used in the Takings Clause?

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Andrew T. Hyman
on March 21, 2019 at 16:48:39 pm

Mr. Erler, you say that the Ninth Amendment is an instruction on how to interpret or construe the previous eight amendments. Thus, it is not an instruction on how to interpret the enumeration of powers in the Constitution. So why can’t the enumeration of powers be construed to deny or disparage unenumerated rights? If it can, I am puzzled by why you would think that “the unenumerated rights have the same constitutional status as the enumerated rights.”

Also, you quote Madison, who refers both to “property in the general sense of the word” and also “property strictly so called.” Which way do you think that word is used in the Takings Clause?

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Andrew T. Hyman
on March 21, 2019 at 17:11:00 pm

Andrew:

"So why cn’t the enumeration o powers be construe to deny or disparage unenumerated rights?

That is a novel construction. I mean no slight with my characterization. Rather, I would argue that there is some plausibility to it. If i am correct that the Framers did not a) intend to institute utopia in the colonies, b) recognized that under "compact" theory (yes, a clever constructive myth) a trade-off is indeed made wherein certain, let us call them *unenumerated* rights are relinquished in exchange for the protection of "natural" rights to life, propery, etc and c) believe that a constitutionally limited republic could be held within its defined boundaries if it were charged with the guarantee of all those "innumerable" and *unenumerated* rights, then we may conclude that the 9th was a mechanism by which the Central government enabled the State governments and / or the People to either protect or denigrate those unenumerated rights as the States / People best thought proper for social order and comity.

I think such a construction of the 9th is consistent with the overall character / purpose and structure of the FEDERALISM purportedly at the heart of COTUS. The States and the People would "police' these matters. Wear a hat or don't wear a hat. If wearing a hat for religious reasons, one MAY have 1st Amendment guarantees; if wearing one is because one is bald, can it be said that this is an unenumerated right protected by COTUS? Would Madison, etc contemplate the exercise of Central government powers to resolve this issue. I think not. It was to be left to the States. Here we observe the difference. The religious hat wearer would have a 1st amendment claim as freedom of religion is deemed a natural AND enumerated right. Not so for the bald man as there is neither a right to hair nor a right to hide that follicle deficiency. Yet, a State could either afford the bald man that privilege or deny him that privilege as it saw fit.
Bingham and Lash are correct. P&I under both COTUS and the 14th are coextensive with the first eight amendments. State level P&I may not be less than that BUT it may be greater than that AND it is for the State to determine how extensive it will be (provided that it does not infringe on COTUS).

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gabe
on March 21, 2019 at 17:11:00 pm

QET, I favorably quoted Madison at length, and I cannot explain any better than him why the 9th amendment was needed: even if Government keeps within the limits of its enumerated powers, it has certain discretionary powers with respect to the means, and so the first eight amendments were needed to limit the means. The Ninth Amendment by itself does not directly limit any of the enumerated powers or the means to carry out the enumerated powers. It's merely a rule of construction.

I have not examined whether the Ninth has been the basis for any Supreme Court or lower court decisions. I do know that Marbury v. Madison was based on a clause in Article III of the Constitution, and SCOTUS thereafter did not decline to apply any federal law until the Dred Scott Case many decades later. Surely you don't think that the many dozens of constitutional clauses that were not operationalized by the judiciary prior to the Civil War are now void?

The unenumerated federal rights to which the 9th Amendment refers are those federal rights within the borders of each state (but not in D.C.) that limit the federal government because of the enumeration of powers in the Constitution. The 9th Amendment does bar the federal government from violating the no-hat right within the borders of all states, but of course those states themselves are not barred from violating it. Hopefully, no state would be so weird.

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Andrew T. Hyman
on March 21, 2019 at 17:21:09 pm

Gabe, I agree. In his letter transmitting the Constitution, George Washington said: "Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests."

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ndrew T. Hyman
on March 21, 2019 at 17:25:20 pm

Gabe, I agree. See the letter George Washington wrote transmitting the Constitution: "Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests."

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Andrew T. Hyman
on March 21, 2019 at 18:44:41 pm

Yes, you cannot construe the list of rights in the first eight amendments to be a complete list of rights. There are other rights reserved to the people. That is how you must interpret the Bill of Rights. Obviously the Takings Clause refers to property in the narrow sense, but as the example of monopoly suggests the right to property extends to the means by which property is acquired, i.e., the founders were well acquainted with Locke's idea that labor was the title to property. After all Madison wrote in Federalist 10 that the "first object of government" was the "protection of different and unequal faculties of acquiring property." The FIRST object! This was not a static view of property, but a dynamic one, which if it did not protect the right to acquire property by free choice of an occupation, then the statement doesn't mean much. This is one of the "other" rights that should have been included in privileges or immunities. To deny that it is an unenumerated right is to "deny or disparage" it as a right because it is not listed in the first eight amendments, the very thing the ninth amendment says you must not do.

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Edward Erler
on March 21, 2019 at 19:35:09 pm

The right to wear a hat, or a cross necklace, or light a candle, or put up a decorated tree only means anything if it applies to all people--Christians, Jews, and Atheists alike. The only way it can apply to everyone is if people can do it for religious or non-religious reasons. If you can only wear a hat for religious reasons, than the right to wear a hat will never apply to atheists--which violates the equal protection clause that applies rights to all people regardless of religion.
Freedom of religion only means anything if you can still exercise rights even if you choose not to have a religion at all. If you lose the right to wear a hat, for instance, if you choose not to be a Christian or Jew, than you don't really have a right not to be a Christian or Jew. The right not to be religious means that you still have all the rest of your rights--right to wear a hat, own a gun, vote--even if you don't practice religion.
See Employment Division v. Smith.

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James
on March 21, 2019 at 19:56:22 pm

Mr. Erler, you’re apparently referring here to a right to be free of government-mandated monopolies, We agree that they’re very often a very bad idea. Whether freedom from such monopolies is a constitutional right is another question. They may well be beyond the federal power to regulate interstate commerce, and sometimes beyond even the federal power conferred by the Necessary and Proper Clause. If so, then I would agree that freedom from government-mandated monopolies is a Ninth Amendment right, except where Congress has plenary power such as in the District of Columbia. It cannot be a nationwide constitutional right if it is not a constitutional right in the District of Columbia, so I cannot consider it a privilege or immunity of citizens of the United States. If we suppose that Congress has forbidden federally-mandated monopolies even in the District of Columbia, then it becomes a much closer question as to whether it’s then a privilege or immunity of citizens of the United States, but the very fact it’s a close question leads me to conclude it isn’t, given that this conclusion better reconciles the Privileges or Immunities Clause with state law (i.e. no laws should ever be declared unconstitutional except in a clear case). If decisions by Congress could render something a privilege or immunity of citizens of the United States under the 14th Amendment, then I think Congress would have just as much power as it would have had under the preliminary version of the 14th Amendment that Congress rejected.

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Andrew T. Hyman
on March 23, 2019 at 17:39:27 pm

I would like to see the professor's thoughts on Raoul Berger's scholarship on the 14th Amendment. He has persuasively argued that Bingham's views were often not those of the committee or the Congress that later adopted the amendment, and that in fact he was sometimes overruled by a majority of his colleagues and denied the full scope of what he wanted. Berger, in short, shows that the 14th Amendment was intended to and did in fact do no more than Constitutionalize, as it were, the 1866 Civil Rights Act, and that if it had been understood at the time to grant the federal government the power to "enforce" the Bill of Rights against the states, it never would have passed. (One example of this is that the Amendment was widely understood to leave the dual school systems of various Northern and Southern states--and the District of Columbia--untouched.)

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Aaron
on March 24, 2019 at 10:57:10 am

Aaron: Have you seen Michael McConnell's work on this issue? Yes, the 14th Amendment was meant to constitutionalize the Civil Rights Act of 1866. But McConnell shows that it was meant to empower the federal government to do additional things that the Civil Rights Act of 1866 didn't do.

Where I scratch my head is I question whether the framers and ratifiers of the 14th intended federals COURTS to be able to do these things without a congressional statute (like for instance the Civil Rights Act of 1866).

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Jonathan Rowe
on March 25, 2019 at 11:09:26 am

[…] that the 14th Amendment was intended only to validate the Civil Rights Act of 1866. Kurt Lash concludes that the 39th Congress intended to incorporate the first eight amendments of the Bill of Rights in […]

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The Many Flavors of “Originalism”
on March 26, 2019 at 05:57:18 am

[…] rights, like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article that it does not. But that seems to be contradicted by the textual and historical foundation of the […]

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The Unenumerated Rights of the Privileges or Immunities Clause
on April 01, 2019 at 20:25:29 pm

[…] like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article that it does not. But that seems to be contradicted by the textual and historical foundation […]

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Image of The Unenumerated Rights of the Privileges or Immunities Clause - G20 Intel
The Unenumerated Rights of the Privileges or Immunities Clause - G20 Intel
on April 02, 2019 at 07:29:15 am

Jonathan,

I confess I have not seen McConnell's work, but in going back and reviewing Berger's research and arguments, to me he is fairly convincing that the Amendment was not, in fact, intended to go beyond the reach of the Civil Rights Act of 1866. I think Berger shows that for Trumbull (chairman of the Senate Judiciary Committee) and Wilson (chairman of the House Judiciary Committee), the sponsors of the Act, and even for John Bingham himself, the Act and the Amendment the next year were specific and limited, and that "privileges and immunities" were terms of art known at common law and embracing nothing other than life, liberty, and property. In fact Bingham insisted that the Act's initial phrasing "civil rights and immunities" was too broad because "civil rights" encompassed far more than the federal government could properly oversee within the States, so that phrase was changed.

Then, Bingham submitted a report of the House Judiciary Committee in 1871 in which the Committee stated that the "privileges and immunities" of the Amendment were no broader than those of Article IV, and that the Amendment "did not add" to those privileges or immunities. The Supreme Court has agreed on several occasions, including Maxwell v. Dow and Adamson v. California.

In short I have a hard time seeing how any part of the Amendment, including this clause, is accurately understood to have been intended to expand beyond the limited rights of life, liberty, and property protected by the 1866 Act. The clause was not broad or vague to the men who drafted, debated, and passed the Amendment.

And your point about the courts v. Congress is well taken. I agree that whatever the Amendment was meant to protect, it does not confer plenary power on the judiciary to discover new rights and enforce them against the States.

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Aaron
on April 02, 2019 at 07:44:30 am

I would like to know Professor Lash's thoughts on chapter 8 of Berger's Government by Judiciary, where he argues that Bingham's desire to use the Amendment's clause to incorporate the Bill of Rights was rejected by the Committee and Congress, and that Bingham did not mention the Bill of Rights during debate on the final proposal that became Section 1 of the Amendment. And there were other assurances (by Wilson, no less) that the Amendment was not making a "general criminal code" for the States.

And what of Bickel, who rejects Justice Black's attempt to place incorporation on a historical footing and concludes that nearly all the weight of the evidence cuts against the idea that the framers of the Amendment, or those who voted for it, or the States that ratified it, intended to make the entire Bill of Rights enforceable against the States.

It must be admitted, after all, that incorporation would entirely and fundamentally alter the federalism that the Constitution had hitherto provided. Would we not require the strongest proof that this Amendment carried that intention, and was widely so recognized at the time, by both committees and the States that ratified it? Surely Bingham's subjective views far fall short of that burden of proof.

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Aaron

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