Resurrecting the Privileges or Immunities Clause and Revising the

Boston College Law Review

Volume 38

Issue 1 Number 1

Article 1

12-1-1997

Resurrecting the Privileges or Immunities Clause

and Revising the Slaughter-House Cases Without

Exhuming Lochner: Individual Rights and the

Fourteenth Amendment

Michael K. Curtis

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Recommended Citation

Michael K. Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House

Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C.L. Rev. 1

(1997), h6p://lawdigitalcommons.bc.edu/bclr/vol38/iss1/1

BOSTON COLLEGE

LAW REVIEW

VoLumE

XXXVIII



DECEMBER 1996



Numtictt

RESURRECTING THE PRIVILEGES OR

IMMUNITIES CLAUSE AND REVISING

THE

SLAUGHTER-HOUSE CASES

WITHOUT EXHUMING

LOCH1VER:

INDIVIDUAL RIGHTS AND THE

FOURTEENTH AMENDMENT t

MICHAEL KENT CURTIS

I. INTRODUCTION

The decision in the

Slaughter-House Cases liquidated the Privileges

or Immunities Clause of the Fourteenth Amendment. The Clause has

never been resurrected.' On the larger question of national protection

for civil liberties, the decision no longer means what it says because

much of the damage done by

Slaughter-House

has been corrected

under the Due Process Clause. Though the

Slaughter-House

decision

has been much criticized, it has never been overruled.

The

Slaughter-House Cases

faced a question that was at the heart

of the American experiment. It was a question that had been raised in

t (c) Michael Curtis

* Professor of Law, Wake Forest University Schtml of taw. I owe special thanks to Akhil

Richard Ayi

Yes,

Man Curtis, Steven Heyman, David Logan, Alan Pahniter, Eugene Volokh, Ronald

Wright, and Michael Zucker'. for comments on an earlier d

aft. Special thanks also to Steven

McCallister and Andrew Sheffer, my research assistants and to _John Perkins for assistance with

research. The shortcomings are my own. An earlier draft of this article was prepared for an

Institute of justice conference on the Slaughter-House Cases.

83 U.S. 36 (1872).

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[Vol, 38:1

the Declaration of Independence, finessed in the Constitution of 1787,

deferred in the Bill of Rights, hotly debated as slavery became a central

national issue, and answered by the Reconstruction Amendments, par-

ticularly the Privileges or Immunities Clause of the Fourteenth Amend-

ment. The question examines our constitutional soul. Was the Consti-

tution a system designed to protect slavery or guarantee liberty? While

it recognized the inevitable death of slavery, the

Slaughter

House Cases

left the protection of liberty much as it had been under a Constitution

construed to protect slavery.

Ultimately, attempts to justify the contorted construction of the

Privileges or Immunities Clause in the

Slaughter

House Cases

(or to

offer some modern equivalent protective of state power to invade Bill

of Rights liberties) fail to come to grips with the constitutional and

historical context of the Fourteenth Amendment. A look at text, con-

text, history, ethical aspirations, precedent and constitutional structure

suggest that the Fourteenth Amendment's Privileges or Immunities

Clause was designed to make the Constitution what its preamble prom-

ised—a guarantee of liberty.

But burying this aspect of

Slaughter

House

while reviving the Privi-

leges or Immunities Clause has its own perils, particularly today when

many see the Unregulated Market as an ultimate good and the dollar

is winning the battle between man and the dollar. Our own era bears

a striking resemblance to the Gilded Age and the Roaring Twenties,

eras in which the original vision of the Fourteenth Amendment was

buried and replaced with an interpretation that did much to make it

a Magna Carta of corporate power. Can we resurrect the Privileges

or Immunities Clause and revive

Slaughter

House

without exhuming

Lochner,

a case that too often left the worker and the small business

person to be regulated by massive combinations of corporate power?

Too often

Lochner's

legacy treated democratically enacted limits on

concentrated economic power as impermissible. The picture is com-

plex, of course. For concentrated power can also use regulation to

disadvantage the less politically powerful.

These questions are not theoretical. In December 1995, the Insti-

tute of Justice, a free market legal foundation, convened a conference

to consider overruling

Slaughter

House.

In calling the conference, the

Institute quoted Justice Scalia on the "urgent" need to find protection

for economic liberties in the Constitution. For many, revival of

Lochner

is a fond hope. Here again, a look at the broader historical context of

198 U.S. 45 (1905).

December 19961

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PRIVILEGES OR IMMUNITIES CLAUSE



the Fourteenth Amendment suggests that, far from enacting

Lochner,

the Amendment's vision of liberty does not require replacing one

system of concentrated economic power with another.

This article looks more intensively at the

Slaughter

House Cases

and

it examines recent scholarship suggesting that the Privileges or Immu-

nities Clause was primarily a prohibition against certain forms of dis-

crimination.' In addition, it looks in more detail at the idea of resur-

recting

Lochner's

"liberty of contract" under the rubric of the Privileges

or Immunities Clause. Further, it makes some observations on the role

of original intent or original meaning. Finally, it makes suggestions

about private attacks on free speech rights and the doctrine of state

action. In the end, I conclude that the Fourteenth Amendment and

its Privileges or Immunities Clause were designed to protect basic

constitutional liberties; left a broad sphere for state power; prohibited

(under the Equal Protection Clause) racial and similar discrimination

in many rights conferred by state law; should not be read to outlaw

worker safety, maximum hours, or the minimum wage; and should

allow federal protection of individual rights against certain types of

private attack.

The liquidation of the Privileges or Immunities Clause and devel-

opment of the state action doctrine occurred at about the same time.

The state action doctrine suggested that much private conduct aimed

at destroying Bill of Rights liberties like freedom of speech and press

was beyond the reach of the federal government. As to both private

attacks on Bill of Rights liberties and state violations of Bill of Rights

See, e.g.,

RAOUL BERGER, GOVERNMENT

JUDICIARY:

TILE TRANSFORMATION OF THE FOUR-

TEENTH AMENDMENT, Cll.

8 (1977); DAVID CURRIE, THE CONSTITUTION AND THE SUPREME COURT:

'lire FIRST DUNDRF,D YEARS, 342-51 (1985); WILLIAM NELSON,

Tint FOURTEENTH AMENDMENT:

FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988);

Cf.

John Harrison,

Reconstructing the

Privileges or Immunities Clause, 101

YALELJ. 1385 (1992).

For my prior efforts, see MICHAEL KENT

Gowns, No STATE SHALL ABRIDGE, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS

(1985) [hereinafter Cutups, No STATE SHALL Amonoal; Michael Kent Curtis,

The Bill of Rights

as a Limitation on State Authority: A Reply to Professor Berger,

16 WAKE FOREST L. Rev. 45 (1980)

[hereinafter Curtis,

A Reply to Professor Berger];

Michael Kent Curtis,

Further Adventures of the

Nine-Lived Cat: A Response to, Mr. Berger on Incorporation of the Bill of Rights,

43 Onto ST. Li. 89

(1982) [hereinafter Curtis,

Further Adventures]; Michael Kent. Curtis,

The Fourteenth Amendment

and the Bill of Rights,

14 CONN. L. Ray. 237 (1982) [hereinafter Curtis,

The Fourteenth Amendment];

Michael Kent Curtis,

Still Further Adventures of the Nine-Lived Cat: A Rebuttal to Raoul Berger's

Reply on Application of Me Bill of Rights to the States,

62 N.C. L. Rev. 517 (1984).

For a recent

spirited attack on application of privileges in the Bill of Rights to the states, see Donald Dripps,

Akhil Amor on Criminal Procedure and Constitutional Lau), "Here I Go Down that Wrong Road

Again," 74

N.C. L.

REv. 1559, 1571-92 (1996).

See

United States v. Cruikshank, 92 U.S. 542 (1875); Slaughter-House Cases, 83 U.S. 36

(1872).

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liberties, the Supreme Court initially found that the Fourteenth

Amendment had not changed things very much.

The destruction of the Privileges or Immunities Clause and the

development of an excessively broad state action doctrine had a pro-

found impact on American history. They represented a one-two punch

that did much to eliminate the Fourteenth Amendment as an effective

protector of individual rights and democracy. Both were motivated in

part by considerations of federalism, and in both cases the judicial

solution was far broader than necessary.

The story of the Fourteenth Amendment is part of the great story

of liberty. It reveals important patterns. It shows how guarantees like

those in the Bill of Rights have functioned holistically to protect politi-

cal freedom and how the absence of those guarantees has repressed

political liberty. It is a story well worth telling, particularly today, when

study of the history of liberty is neglected and when guarantees are

likely to be dismissed as mindless technicalities. For individuals, for

families, and for nations, the stories we tell about our past are impor-

tant ways of understanding our identity.' The best understanding

comes from looking at the bleaker as well as the brighter side of our

natures.

Today a striking phenomenon is reductionism—the attempt to

explain law by a single method, such as the theory that law is merely

economics, or the idea that the Constitution is to be understood based

on the narrowest reading of original intent or meaning. In fact, legal

decisions reflect a combination of methods. The task of the lawyer or

the judge is constructive—to give the best possible account of the

Constitution considering text, context, history, precedent, structure

and ethical aspirations, and also to use this understanding to resolve

particular controversies." Often the most accurate, purely historical

explanation recognizes cross currents and confusion—although, be-

cause of their own tradition, the needs of the human mind, and the

demands of tenure, few historians write in this way. The human mind

imposes patterns on an unruly world. Because of their different pur-

poses, seeing history as cross currents and confusion is not viable for

judges or political leaders. Usually they must provide a coherent mean-

ing, though coherence often comes at a cost.

See

generallyJEROME

BRUNER, ACTS OF MEANING

(1990);

see also

SAM KEEN,

A DANCING

GOD

83-105

(1990) (providing another discussion of story-telling).

See generally

Richard

Fallon, Jr., A

Constructivist Coherence Theory of Constitutional Inter-

pretation, 100 HAttv.

REV.

1189 (1987). Cf

RONALD DWORKIN, LAW'S EMPIRE

(1986);

Phillip

Shaw Paludart,

Hercules Unbound: Lincoln, Slavery, and the Intention of the Framers, in

THE

CONSTITUTION, LAW, AND AMERICAN LIFE

1, 6-7

(Donald Neiman ed., 1992).

December 19961

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PRIVILEGES OR

IMIVIONMES CLAUSE



Obviously, the idea that judges

must

construct constitutional

meaning from diverse sources and give the best interpretation has its

risks. It is tempting instead to look, for example, for the most specific

indication of original intent or for the plain meaning of the text and

to follow only that. So if the galleries of the Senate were segregated

when the Fourteenth Amendment was passed, if Congress seemed to

accept segregated schools in the District of Columbia, and if many

states accepted segregation, state-imposed racial segregation could be

constitutionally acceptable. Since the First Amendment says Congress

shall make no law abridging freedom of speech, presidents and judges

could abridge free speech.

Often the nation and its judges have rightly rejected such a narrow

approach. Framers and ratifiers of constitutional provisions have broad

goals as well as specific understandings of how to apply their goals to

concrete facts. Like the rest of us, they often have inconsistent pur-

poses.

So, for example, the framers of the Fourteenth Amendment

wished to confer civil equality on Americans of African descent, at least

with reference to fundamental rights and interests. But many did not

see state-imposed racial segregation in education as incompatible with

that goal.? If a court finds the goals of civil equality and racial segrega-

tion in conflict, it must make a choice. It is tempting to pick the specific

view (segregation) over the general (civil equality), but such a choice

is not necessarily true to the framers' intent.

A purely historical interpretation based on the understanding of

1866 cannot always account for changes in the constitutional structure

since that time. For many framers of the Fourteenth Amendment in

1866, the right to vote, then denied to all women and most American

men of African descent, was not a fundamental right or interest of the

cf.

CONG. Gtoin:., 39th Cong., 1st Sess. 1117 (1866) (statement of Rep. Wilson) (citing 1

KENr's

COMMENTARIES

199 (1827)) on the Civil Rights Bill, belOre amendment:

What do [civil rights and immunities] mean? Do they mean that in all things civil,

social, political, all citizens, without distinction of race or color, shall be equal? By

no means can they be so construed. Do they mean that all citizens shall vote in the

several States? No; for suffrage is a political right which has been left under the

control of the several States, subject to the action

Congress only when it becomes

necessary to enforce the guarantee

a republican government. Nor do they mean

that all citizens shall sit on the juries, or that their children shall attend the same

schools. These are not civil rights or immunities



What are civil rights? I

understand civil rights simply to be the absolute rights of individuals, such as—"The

right of personal security, the right of personal liberty, and.the right to acquire and

enjoy property. Right itself in civil society, is that which any man is entitled to have,

or to do, or to require from others, within the limits of proscribed law,"

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(Vol. 38:1

citizen

or within the equality the Amendment secured.° Senator Jacob

Howard said it was not "regarded as one of those fundamental rights

lying at the basis of all society and without which people cannot exist

except as slaves subject to despotism."'° With the passage of the Fif-

teenth Amendment (prohibiting denial of the right to vote based on

race), the Nineteenth (based on sex), and the Seventeenth (direct

election of Senators), there is strong reason to treat the right to vote

as fundamental.

The Constitution is a set of basic instructions from the people to

their agents in the judicial, legislative and executive branches." In the

law of agency, when specific instructions conflict with general pur-

poses of the employer or principal, the agent is sometimes expected

to follow broader goals—a reasonable interpretation of what the prin-

cipal would want, rather than the principal's more specific instruc-

tions.'

That such cases are rare does not mean departure from more

specific instructions is never appropriate. Judges are agents interpret-

ing the commands of the sovereign people enshrined in the Constitu-

tion. But looking from the specific to the general has its obvious

dangers. Perhaps the best that can be said is that to the extent that

text, context, intent, history, structure and ethical considerations point

in the same direction, we can be more confident that a decision is

correct.

II. THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS

The Original Constitution and the Addition of a Bill of Rights

The original American Constitution of 1787 said that it was de-

signed to secure the blessings of liberty.'' It contained some important

See id.

(statement of Rep. Wilson).

See.

CONG.

Gam:, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard).

See

THE FEDERALIST No. 78

(Alexander Hamilton). "flIn other words, the Constitution

ought to be preferred to the statute, the intention of the people to the intention of their agents."

Id.

The agency conception is a metaphor which highlights some of the aspects of the relation

and hides others.

See

RESTAT•MENT (FIRST) OF AGENCY §

33 (1958). "P, the owner of a ffictory running on

half time for lack of orders, before leaving for his vacation, directs his purchasing agent to 'put

in our usual monthly coal supply of 1000 tons.' The following day a large order comes in which

will immediately put the factory on full running

time." Id.

at 115-16, illus. 2. If P cannot easily

be reached, Id t may be found that A is authorized to purchase sufficient coals to keep the factory

running, this depending upon whether or not P can easily he reached, the amount of discretion

usually given to A, the condition of P's hank balance, and other factors."

Id.

U.S.

CONST.

preamble.

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE

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guarantees of liberty such as the provision against ex post facto laws,

the provision for habeas corpus," and the clause limiting treason so

that simple political opposition to those in power could not be prose-

cuted as treason.'

It divided power between federal and state govern-

ments and within the federal government. Divisions of power are an

important mechanism for limiting its abuses.

But the document of 1787 contained basic imperfections. It rec-

ognized the existence of slavery,'

and it gave slavery enhanced political

power through the clause that counted slaves as three-fifths of a person

for purposes of representation in the federal House of Representa-

tives.'

(At least that is so if one assumes slaves should not have been

counted at all in the basis of representation.) The three-fifths provision

also increased the power of the slave states in the electoral college. The

Constitution of 1787 protected the traffic in kidnapped and enslaved

human beings until 1808,

required Northern states to return escaped

slaves,

and committed the federal government to helping end domes-

tic violence in the states.

° In the nineteenth century, many Americans

understood this to be a commitment to put down slave rebellions.

The framers of the Constitution of 1787, like most of us, had

inconsistent goals. They wanted liberty and union, protection for lib-

erty and protection for the institution of slavery. Time would prove

these to be impossible combinations.

The framers left a Bill of Rights out of the Constitution. When

challenged on that score in the ratification process, they responded

with a collection of arguments. They insisted, somewhat inconsistently,

that the Constitution already contained guarantees of liberty (a sort of

virtual Bill of Rights) and that the federal government lacked the

power to perform the invasions of liberty feared. (It had no delegated

power to interfere with the liberty of speech and press, for example.)

They warned that guarantees of liberty were dangerous because a

limitation on power implied the existence of power, much as the

provision that the government cannot take property for public use

U.S.

CoNs•r. art.

1, §

9 (bill of attainder, ex post facto laws, habeas corpus);

id. §

10 (bill

of attainder, ex post facto laws).

U.S. GONST. art. III, § 3, cl. 1.

See, e.g.,

U.S. CONST.

art.

I, §

2, cl. 3;

U.S. CONSr.

art. I, § 9, cl. 1; U.S. CONST. art. IV, § 2,

cl. 3; U,S. CONST. art. IV, § 4 (protection of states against domestic violence).

U.S. CONST. art.

I, §

3, cl. 3; U.S.

CONST.

art.

II, § 1,

cl. 2.

U.S. CONST. art. 1, § 9, cl. 1.

U.S. CONST. art. IV, § '2, cl.

° U.S. CONST. art. IV, § 4.

See.

TIRE FEDERALIST No. 84

(Alexander Hamilton); Akhil Reed Amar,

Some Opinions on

the. Opinions Clause,

82 VA. L. Rev. 647, 649 nn.10-11 (1996).

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[Vol. 38:1

without paying for it suggests that it can take property if it does pay

for it. And they argued that listing rights was dangerous because it

would imply that those rights not listed did not exist, an argument at

odds with the idea that the Constitution already contained a virtual Bill

of Rights.

The final argument against a Bill of Rights was based on popular

sovereignty. Bills of rights were devices needed to limit the power of

the King in favor of popular rights. In the United States, the people

were sovereign, and since the people would not invade their own

rights, a Bill of Rights was superfluous.

A quick historical flashback

will show why this argument is extraordinarily hollow. Fortunately, it

did not prevail.

American revolutionaries were the heirs of the English revolution-

aries of the seventeenth century and of those in England who followed

the tradition that they established.

The radical wing of English revo-

lutionaries fought for religious toleration, broader suffrage, repre-

sentation in Parliament in accordance with population, and fought

against monopolies. Parliament was not sovereign, they insisted; the

People were sovereign, and Parliament was simply the agent of the

sovereign people. "We are your Principalls," one petition to Parliament

explained, "and you our Agents. . . . For if you . . . shall assume, or

exercise any Power, that is not derived from our Trust and choice

thereunto, that Power is no lesse then usurpation."

' The oligarchy that

ruled England after the successful revolution against King Charles I

felt threatened by the ideas of these proto-democrats.

In brilliantly

loaded language, the oligarchs named the proto-democrats the "Lev-

ellers." Their charge was that political democracy would lead inevita-

See,

e.g.,

JmnEs MADISON, NOTES OF THE DEBATES IN THE FEDERAL CONVENTION or 1787,

640 (Adrienne Koch ed., 1966) (Sherman); THE FEDERALIST No. 84 (Alexander Hamilton); 2

THE BILL OF RIGHTS, A DOCUMENTARY HISTORY 1025, 1034 (Bernard Schwartz ed., 1971)

(Jackson) [hereinafter 2 THE Btu, OF RIGHTS]; William Van Alstyne,

Congressional Power and Free

Speech: Levy's Legacy Revisited,

99 HARV. L. REV. 1089, 1094-97 (1986)

(book review).

25 See

THE FEDERALIST

No. 84 (Alexander Hamilton) (alluding to this argument but not

expressing it in so bald a form).

See

David Mayer,

The English Radical Whig Origins of American Constitutionalism,

70 WASH.

U. L.Q. 131, 204

08 (1992) (discussing views of Radical Whigs).

Richard Overton, A

Remonstrance of Many Thousands of

Citizens (1646), in

TRACTS ON

LIBERTY IN THE PURITAN REVOLUTION 1638-1647 1, 3

(William Haller ed., 1934).

" See

Michael Kent Curtis,

In Pursuit of Liberty: The Levellers and the American Bill of Rights,

8 CONST.

Comm. 359, 377-86 (1991) [hereinafter Curtis,

The Levellers].

For excellent discussions,

See

HENRY NOEL BRAILSFORD, THE LEVELLERS AND THE ENGLISH REVOLUTION (1961); JOSEPH

FRANK, THE LEVELLERS (1955); PAULINE GREGG, FREE: BORN

JOHN:

A BIOGRAPHY OF JOHN LIL-

BURNE (1961).

December 1996]

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PRIVILEGES OR IMMLWI71ES CLAUSE



bly to equal division of property. The oligarchs also turned weapons

the King had used against Puritans and Parliamentarians against the

proto-democrats. So the parliamentary oligarchs used against the Lev-

ellers the very weapons the King had used against them: sedition laws,

treason laws reaching verbal attacks on government, broad power to

search, compelled self-incrimination and denials of other criminal

procedure guarantees. Eventually, the oligarchs suppressed the Level-

lers."

The Levellers invented (or at least espoused) what would become

some basic American ideas of liberty and popular sovereignty. They

proposed a written constitution that contained a list of powers denied

to government, something like a bill of rights. Because this constitution

came directly from the people, its authority would limit parliamentary

power. The sovereign people were the principal, Parliament was the

agent, and the constitution,

the Agreement of the People,

was a set of

limiting and binding instructions the people gave their agents. These

fundamental instructions, in turn, could not be changed by their

agents in Parliament.

Ideas of popular sovereignty contributed to the

gradual transformation of formal political power in America, and the

right to vote progressively expanded.

Their emphasis on agency principles and their own experience

with parliamentary power led the Levellers to simple but profound

insights, insights that showed the hollowness of suggestions that popu-

lar governments have less need for bills of rights. The Levellers saw the

basic problem with all agency relations—the danger that the agent will

use the power given by the principal to the advantage of the agent and

the disadvantage of the principal.

As they put it in explaining the

need to limit the power of government, the Levellers had "by woeful

experience found the prevalence of corrupt interests powerfully inclin-

ing most men once entrusted with authority, to pervert the same to

their own domination, and to the prejudice of our Peace and Liber-

ties."" Put another way, the claim that the people actually rule is a legal

fiction—useftil, instructive, partially true, but still a legal fiction. For

the governors and the governed are different, and the power the

people give to the governors may be used to the disadvantage of the

See

Curtis,

The Levellers, supra

note 26, at 375-89.

' See id.

See id.

at 367

68,387.

3(1

An Agreement of the Free People of England, in

THE LEVELLER TRACTS

(1647

1653) 323

(William Haller and Godfrey Davies eds., 1960).

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[Vol. 38:1

people themselves.

' Like all metaphors, the claim that the people rule

highlights one aspect of the truth, while leaving others in darkness.

While the Levellers were suppressed, many ideas remarkably simi-

lar to those of the Levellers were carried on by a small group of Radical

Whigs. The Radical Whigs, in turn, transmitted many of these ideas to

American revolutionaries."

The attacks on the United States Constitution of 1787 came in

part from those concerned about the lack of protection for individual

rights. But attacks also came from those concerned with preserving the

power of the states, and one of the chief reasons for that concern was

fear that the federal government might grow sufficiently powerful to

threaten slavery.

James Madison, of course, led the fight for a bill of rights in the

first Congress. A bill of rights, Madison said, would give legitimacy to

principles of liberty, help the people to internalize these values, and

provide a basis for rallying against abuses of power. It would also give

new power to the courts. Madison announced, with excessive opti-

mism, that "courts of justice" would form "impenetrable barriers"

against violations of the liberties in the Bill of Rights.

Madison also wanted some guarantees of liberty to be directed

against the power of the states. Specifically, he wanted protection for

the "invaluable privileges" of free press, freedom of conscience and

trial by jury." The proposal to limit the states' power in the interest of

liberty, a proposal Madison said was the most valuable part of his

guarantees of liberty, passed in the House but was defeated in the

Senate.

In spite of Federalist assurances that the federal government

lacked power over speech and press, assurances that were re-enforced

by the First Amendment, it was not long before Federalists in Congress

exercised this allegedly non-existent and specifically prohibited power.

They made it a crime to make false and malicious criticisms of the

Federalist President, John Adams, or of the Congress. The law did not

protect Vice-President Thomas Jefferson, Adams' likely opponent in

See

EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN

ENGLAND AND AMERICA

282-84 (1988); Curtis,

The Levellers, supra

note 26, at 367-68, 371-74,

387-93.

See

GEORGE LAKOFF

MARK JOHNSON, MEIAPHORS WE LIVE BY 3-13 (1980).

See generally

Mayer,

supra

note

'24.

For the Leveller legacy, see Curtis,

The Levellers, supra

note 26, at 387-93.

2 THE BILL OF



supra

note 22, at 1030-31.

See generally

Paul Finkelman,

James

Madison and

the

Bill of Rights: A Reluctant Paternity,

1990 Sul.. Cr. REV.

301 (1990).

2 THE BHA. OF RIGHTS,

Supra

note 22, at 1032-33, 1113, 1145.

Id.

December 19961

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PR/V1LEGES

OR IMMUNITIES CLAUSE



the upcoming presidential election.r Federal prosecutors (appointed

by Adams) enforced the law. Soon jeffersonian newspaper editors and

a jeffersonian congressman were jailed for suggesting that Adams was

given to ridiculous pomp and favored a standing army."

There seems to be a pattern emerging here—the use of laws,

including sedition laws and other laws aimed at political expression,

the use of police, courts and the criminal justice system, to destroy or

hobble political opponents. Laws aimed at speech and press have

extraordinary potential for political abuse.

Of course, reality is paradoxical. Criminal laws are necessary to

protect basic rights. Protections against self-incrimination, unreason-

able search and seizure, jury trial and the other criminal procedure

guarantees of the Bill of Rights simply reflect a recognition, at least as

old as the Levellers, that the useful and necessary power to enforce

criminal laws also contains inherent threats to liberty and needs to be

carefully confined. The limits have costs, but the history of liberty

shows that jettisoning the guarantees has costs as well.

Slavery and Abolition Shatter a Constitutional Consensus

1. The Controversy over Slavery

The pattern of using the criminal justice system and laws aimed

at speech and press to silence political opponents reappeared in the

political battle over slavery. State laws to silence opponents of slavery

were not subject to federal judicial review. This was so because, in 1833,

as agitation against slavery began to convulse the nation, the Supreme

Court ruled that guarantees of liberty in the Bill of Rights did not limit

the states."

In the mid-1830s abolitionists launched a massive attack on the

continued legitimacy of slavery. They demanded immediate emancipa-

tion, though they admitted that Congress lacked power over slavery in

the Southern states. The Southern slave-holding elite, meanwhile, in-

sisted on increased security for slavery. Proposed security devices in-

Act for the Punishment. of Certain Crimes, 1 Stat., 596 (July 14, 1798).

See, e.g,

United States v. Cooper, 25 F. Cas. 632 (C.G.D. Pa. 1800); United States v.

Callender, 25 F. Gas. 239 (C.C.D. Va. 1800); United States v. Lyon, 15 F. Cas. 1183 (C.C.D. Vt.

1798).

See generally

LEONARD LEVY, THE EMERGENCE OF A FREE PRESS

(1985);

JOHN MORTON

SMI'I'll, FREEDOMS FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES

(1966);

David A. Anderson,

The Origins of the Press Clause,

30 UCLA L.

REV.

455 (1983); David

M. Rabban,

The Ahislorical Historian, Leonard Levy on Freedom of Expression in Early American

History,

STAN.

L. REv. 785 (1985).

Barron V. Baltimore, 32 U.S. 243 (1833).

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

eluded more slave states, opening all federal territories to slavery,

banning from the mails anti-slavery literature sent to Southern states,

banning anti-slavery publications directed to slave holding states, ex-

traditing Northern abolitionists to the South to face trial for anti-slav-

ery statements sent to the South and suppressing abolition societies

and literature in the North.

In the North, most of these proposed restrictions were not

achieved.

' This was so because many Northerners held a broader and

more general view of free speech and press. They believed that aboli-

tionists could not be suppressed without delegating dangerous discre-

tion to suppress speech to public officials. A substantial block of North-

ern public opinion agreed, at least, that abolitionism was an evil and

the nation would be better off without it. How to get rid of abolitionist

speech without also undermining state and federal guarantees of free

speech and press was a more puzzling problem, and most Northerners

concluded that the puzzle was insoluble.

Rooting out anti-slavery

speech and press was hobbled by provisions for free speech and press

and for jury trials, by provisions against compulsory self-incrimination,

by provisions limiting search and seizure powers of government, and

by the federal system.

Why was it that so many Northerners and Southerners alike were

initially so hostile to abolition? There were two basic rationales. One

fear was that anti-slavery expression would eventually reach slaves and

lead to slave revolts, which the entire nation would be obligated to

quell. A second fear was that anti-slavery agitation would make slavery

a political issue, create sectional parties and eventually lead to civil

war." For the Southern slave-holding elite, abolition threatened their

wealth and power. They responded by suppressing anti-slavery expres-

sion. But, as Francis Lieber warned John C. Calhoun, a system that

refused to tolerate criticism was one that admitted it was based on

violence. Such a system could only come to a violent end."

By the 1850s, escalating Southern demands to protect and expand

slavery had produced a great political realignment. The Republican

party opposed the extension of slavery to new territories, insisting that

See

M ichael Kent Curtis,

The Curious History of Attempts to Suppress Antislavery Speech, Press,

and Petition in 1835

37,

89 Nw. U. L. ItEr. 785, 796

817 (1995) [hereinafter Curtis,

Curious

Histaty].

See id.

at 866.

See id. at

786-849.

See id. at

802-04.

See id,

at 846; FREEDOM OF THE PRESS FROM HAMILTON TO THE WARREN COURT 179 (Harold

Nelson ed., 1967).

December 1996]

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PR/WLEGES

OR IMMUNITIES CLAUSE



slavery in any federal territory was an unconstitutional deprivation of

liberty without due process of law. Republicans rejected slavery as

barbarism and demanded free speech and free press on the subject:*

The Southern slave-holding elite, and many Southerners who

followed it, found Republican ideas just as evil and criminal as those

of the abolitionists." In truth, Republicans shared many premises with

abolitionists, although they reached different conclusions. Like the

abolitionists, Republicans believed that slave-holding was evil, that it

should be banned from federal territories, that slavery in the states was

beyond the immediate power of the federal government, and that

open discussion of the issue in the South would lead to state-by-state

abolition. Most abolitionists, however, were committed to racial equal-

ity, a position many Republicans approached more gradually.

2. Irreconcilable Differences: The Liberty Model vs.

the Slavery Model

So, from the 1830s to the 1850s, two different models

the Fed-

eral Constitution emerged: the liberty model and the slavery model.

Advocates of the liberty model read the Constitution as

ultimately

committed to the goals of liberty and equality in life, liberty and the

pursuit of happiness. For them, the Constitution was infused with the

purposes of the Declaration of Independence. Supporters of the lib-

erty model differed on how quickly those goals could and should be

achieved, as well as on the extent to which the Constitution was an

actively anti-slavery document.

Advocates of the slavery model saw the Constitution as a compact

between North and South, requiring the North to protect the institu-

tion of slavery where it existed and to allow it at least to compete with

free labor for dominance in the territories." Protection for slavery

required at least some extra-territorial effects for slave codes. These

included banning the reading and discussing of anti-slavery petitions

in Congress. Advocates of the slavery model believed that abolitionists,

and later, Republicans, should not be permitted to make anti-slavery

arguments in the South and, many said, not in the North either—be-

See

CURTIS,

No STATE Stim.t, AtouncE, supra note 3, at ch. 2.

See

GONG. GLOBE,

36th

Cool;., 1st Sess. 281 (1860) (statement of Rep. Pryor);

id.

at 17

(statement of Rep. Clark);

id.

at 69 (statement of Rep. Davis);

id.

at 524 (snuentent of Rep.

ndman).

See

Michael Kent

Curtis, The 1859 Crisis Over Hinton Helper's Book, The Impending Crisis..

Free Speech, Slavery, and Some Light on the Meaning (Ore First Section of the Fourteenth Amendment,

68 OIL- KENT L.

REV. 1113,

1140-51, 1168 (1993) [hereinafter Curtis,

The 1859 Crisis].

See

Curtis,

Ctaious History, supra

note 40, at 8(18, 842, 860-61.

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cause newspapers from one section of the nation circulated in the

other.

Some attempted a middle course: attempting to protect the South

from anti-slavery literature without banning it in the North. Amos

Kendall, Postmaster General for Andrew Jackson, explained that in

many ways states were as independent as before the Constitution was

formed, and slavery was one of these areas of state independence:

No state obtained by the union any right whatsoever over

slavery in any other State, nor did any State lose any power

over it, within its own borders . . . . Nor have the people of

one State any more right to interfere with this subject in

another State, than they have to interfere with the internal

regulations . . . of a foreign nation. If they were to combine

and send papers among the laboring population of another

nation, calculated to produce discontent and rebellion, their

conduct would be good ground of complaint . . .

As Kendall saw it, the Constitution showed that one of its purposes

was to secure more perfect control over slavery to

the Southern

states. Kendall did not claim the Constitution authorized the federal

government to suppress speech in the North to protect

slavery, for

anti

slavery expression was legal

there. But he was sure that, because

of the requirement that states be protected against domestic vio-

lence, abolitionist literature should be kept out of mail sent to the

South. IT] he United States have no right, through their officers

or departments, knowingly to be instrumental in producing, within

the several

states the very mischief which the constitution com-

mands

them to repress."

Both those who saw the Constitution as a charter of liberty and

those who saw it as a compact that promised protection for slavery

could point to parts of the text of the Constitution and the history of

the nation to support their cases.•

The Constitution had enfolded

within it radically divergent tendencies.

See id.

at 796-863.

"WASH. Gronr., Dec. 14, 1835, at 2 (Report of Postmaster Kendall to first session of 24th

Congress).

Id.

at 3.

5'2

For protections of slavery, see, for example, U.S. CONST. art. I, § 2, cl. 3 (slaves swell slave

state representation in the House);

id.

art. II, § I, cl. 2 (the electoral college);

id.

art. IV, § 2, cl.

3 (fugitive slaves); id.

art. IV, §

(protection against slave rebellions—"domestic violence"). For

protections of liberty, see, for example,

id.

preamble (to secure blessings of liberty);

id.

art.

I, §

cl. 1 (protection for speech and debate in Congress from being questioned In any other place");

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



Protection for slavery required eradication of guarantees of politi-

cal liberty, implicit in popular sovereignty and explicitly contained in

state and federal constitutional guarantees for speech and press. It

required that a major political issue be kept off the agenda. Protection

for liberty required freedom to criticize slavery and to take political

steps for its eradication. Once slavery became a major political issue,

the Jeckyl-and-l-Iyde nature of the constitutional

arrangement

became

apparent. Lincoln was right in his "house divided" speech: the nation

could not endure half slave and half free," for slavery undermined

liberty, and liberty undermined slavery."

The Declaration of Independence was a central founding docu-

ment of the American nation. The dispute over the nature of our

constitutional arrangement focused in part on the meaning of the

Declaration. Those who saw the Constitution as a compact requiring

protection of slavery insisted that the Declaration in fact meant "all

[white] men" are created equal and are entitled to basic rights. Oth-

erwise, they insisted, slave holding founders like Jefferson would be

hypocrites."

Lincoln read the Declaration as setting out the basic purposes of

the nation, as a charter of freedom. Here is his numinous explication:

I think the authors of that notable instrument [the Declara-

tion of Independence] intended to include all men, but they

did not intend to declare all men equal in all respects. They

did not mean to say all were equal in color, size, intellect,

moral developments, or social capacity. They defined with

tolerable exactness, in what respects they did consider all men

created equal—equal in "certain inalienable rights, among

which are life, liberty, and the pursuit of happiness." This they

id.

art, I, § 9, el. 2 (writ of habeas corpus may only be suspended in cases of rebellion or invasion);

id.

art. III, § 2, cl. 3 (jury trial in criminal cases); id.

art. III, § 3 (limited definition of treason);

id. art.

IV, 4 (republican government);

id.

amend. I (freedom of speech, press, religion, and

petition);

id,

amend, IV (protection against unreasonable searches and seizures);

id.

amend. V

(criminal procedure guarantees including privilege against self-incrimination);

id,

amend. VI

(right to

counsel, local

trial, speedy and public trial, confrontation and right to present defense

witnesses);

id.

amend. VII (civil jury trial);

id.

amend. VIII (hail and no excessive fines or cruel

and unusual punishments).

1 ABRAHAM

LINCOLN,

SPEECHES, LETTERS, MISCELLANEOUS WRITINGS, THE

LINCOLN

DOUGLAS DEBATES ( 1832-1858) 426 (Library of America ed. 1989).

See

CURTIS, No STATE S/ IA LI. ABRIDGE,

.supra

note 3, at ch. 2; Curtis,

The 1859 Crisis,

supra

note 47, at 1141-77; Walter F. Murphy, Slaughter-House,

Civil Rights, and Limas on Constitutional

Change,

Ast.,1. Jufus. 1,17-20 (1987); Paludan, supra

note 6, at 1-22.

See, e.g., Speech of Stephen Douglas at Springfield, July 17, 1858, in

Cutwrito LquAL: THE.

COMPLETE

LINCOLN-DOUGLAS

DEBATES OF 1858 62-63 (Paul M. Angle ed., 1958),

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said, and this they meant. They did not mean to assert the

obvious untruth, that all were then actually enjoying that

equality, nor yet, that they were about to confer it immediately

upon them. In fact they had no power to confer such a boon.

They meant simply to declare the right, so that the enforce-

ment of it might follow as fast as circumstances should permit.

They meant to set up a standard maxim for free society, which

should be familiar to all, and revered by all; constantly looked

to, constantly labored for, and even though never perfectly

attained, constantly approximated, and thereby constantly

spreading and deepening its influence, and augmenting the

happiness and value of life to all people of all colors every

where. The assertion "that all men are created equal" was of

no practical use in effecting our separation from Great Brit-

ain; and it was placed in the Declaration, not for that, but for

future use. Its authors meant it to be, thank God, it is now

proving itself, a stumbling block to those who in after times

might seek to turn a free people back into the hateful paths

of despotism. They knew the proneness of prosperity to breed

tyrants, and they meant when such should re-appear in this

fair land and commence their vocation they should find for

them at least one hard nut to crack.

In the 1830s and in following years, the constitutional paradigm

was that of the semi-sovereign state. The federal government had

power to pursue common objectives, but the great mass of day-to-day

governmental power was exercised by the states, sovereign within their

domain. Slavery could be explained by the semi-sovereign state para-

digm. It was one of the matters reserved to the states. As against state

and local governments (except for a few federal limitations, which did

not include the Bill of Rights), citizens of states and visitors from other

states got just as much liberty as state constitutions and laws provided.

How could Southern states arrest and jail people for criticism of slav-

ery? The problem was simply solved by the paradigm of the semi-sov-

ereign state.

LINCOLN,

SUPra

note 53, at 398-99.

See

Letter from Postmaster General Amos Kendall to Samuel L. Gouveneur, Esq. Postmas-

ter, New York, in

From the New York Times, WASH.

GwisE, Sept. 1,1835, at 2.

When those states became independent they acquired a right to prohibit the

circulation of such [abolitionist] papers within their territories; and their power

over the subject of slavery and all its incidents, was in no degree diminished by the

December 19961



PRIVILEGES OR IMMUNITIES CLAUSE



With the founding of the Republican party, the semi-sovereign

state paradigm came under increasing strain. Here, after all, was a

national political party that was not allowed to campaign in one half

of the nation. As the Civil War approached, southern slaveholders

intensified demands to prohibit circulation of speeches by Congres-

sional Republicans in the South. Slavery was the overriding political

issue of the day, but one party was forbidden to speak or write about

it in much of the South.''' Laws limiting speech and political advocacy

were enforced by searches and seizures, and by the machinery of the

criminal justice system—at least when critics were not silenced by

in ohs .

In 1859 and 1860, Republicans used Hinton Helper's anti-slavery

book

The Impending Crisis

as a campaign document in the North, and

a number of Republican congressmen endorsed a proposed abridge-

ment of the book and contributed funds for its printing.w Southerners

who circulated the book were indicted, tried and convicted. In Decem-

ber 1859, a grand jury in Wilson County, North Carolina, branded

The

Impending Crisis

treasonous to North Carolina and called on New York

Republican Governor Edwin Morgan to deliver Republican endors-

ers of the book "to indictment and punishment," including himself."

Of course, no trial followed the indictment because the defendants

were beyond the power of the court, Other Republican endorsers of

Helper's allegedly incendiary book included John Bingham and others

adoption of the Federal Constitution. It is still as undivided and sovereign as it was

when they were first emancipated from the dominion of the King and Parliament

of Great Britain. In the exercise of that power, some of those States have made the

circulation of such papers a capital crime; others have made it a felony ... and

perhaps there is no one among them which has not forbidden it under heavy

penalties,

Id.

See

Curtis,

The 1859 Crisis, supra

note 47, at 1141-64.

•

As the

RALEIGH WEEKLY STANDARD

announced, after a University of North Carolina

chemistry professor was driven from the state after his support for the Republican presidential

candidate John C. Fremont became public, "[W]e now say, after due consideration . . . that no

man who is avowedly for John C. Fremont for President ought to be allowed to breathe the air

or Dead the soil

North Carolina."

Me Hedrick Once More,

RALEIGH WKLY. STANDARD,

Nov. 5,

1856, at 1.

)

Curtis,

The 1859 Crisis, supra

note 47, at 1143.

° See Governor Seward, Irrepressible Conflict, Speech (Oct. 25, 1858),

in Collection of

Anti-Slavery Propaganda in the Oberlin College Library,

at 2 (Microfiche Reprint SLB 1255) (1964);

Text Book of Revolution, N.Y.

HERALD,

Nov. 28, 1859, at 1; N.Y.

WKLY. TRIR„

Dec. 24, 31, 1859,

EARL. SCHENCK MIRES, INTRODUCTION TO HINTON ROWAN HELPER, THE IMPENDING CRISIS OF

TILE

Souru 13 (1963).

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[Vol. 38:1

who later sat on the Joint Committee that framed the Fourteenth

Amendment.

En these circumstances, opponents of slavery and, later, Republi-

cans began arguing that free speech and press and other constitutional

privileges were national rights that American citizens carried with them

wherever they went—even to Raleigh, North Carolina, or Charleston,

South Carolina. Southern laws suppressing political criticism of slavery

were despotism, they argued, and violated American citizens' right or

See

Curtis,

The 1859 Crisis, supra

note 47, at 1174. My work on the meaning of the

Fourteenth Amendment has built on the work of those who have studied the question and the

general background of slavery and civil liberties. Deeply researched studies on freedom

speech

about slavery to which 1 am indebted include

CLEMENT' EATON, FREEDOM-OF-THOUGHT STRUGGLE

IN THE

OLD SOUTH

(1940),

which focuses on events in the Southern states, Russeta. B.

NYE,

FrTTERED FREEDOM:

CIVIL.

LIBERTIES AND

TI IF

SLAVERY CONTROVERSY

1830-1860 (1972)

and W.

ERMAN SAVAGE,

THE

CONTROVERSY OVER THE DISTRIBuTioN

OF ABOLITION

LITERATURE

1830-

1860 (1968). For

two fine studies that bear directly on the

Worth

case, see Clifton H. Johnson,

Abolitionist Missionary Activities in North Carolina,

40 N.C. Hts•r. Rev. 295,295-301 (1963) and

Noble J. Tolbert,

Daniel Worth: Tar Heel Abolitionist,

39 N.C. HIST.

Rev.

284,284-90 (1962).

number of legal studies have focused on the historical background of the Fourteenth

Amendment with regard to guarantees of civil liberty. Typically these have built on prior work

and offered new evidence and interpretation as well.

See RICHARD

SEWELL, BALLOTS FOR

FREEDOM: ANTISLAVERY

Poi,nics

IN THE UNITED

STATES 1837-1860 (1976)

for an excellent

survey of the rise of the political antislavery movement. For a very important study of early

antislavery legal thought,

see WILLIAM M. WIECEK, THE SOURCES

ANTISLAVERY CONSTITUTION-

ALISM IN AMERICA,

1760-1848 (1977).

Pioneering works on incorporation of the Bill of Rights

in the Fourteenth Amendment are Charles Fairman,

Does the Fourteenth Amendment Incorporate

the Bill of Rights?: The Original Understanding,

STAN.

L. REV. 5 (1949)

and William Winslow

Crosskey,

Charles Fairman, "Legislative History" and Constitutional Limitations on State. Authority,

U. Cm. L. Rev. 1 (1954).

My own work was heavily influenced by Crosskey and my understanding of the subject evolved

over

time. See generally

Curtis,

A Reply to Professor Berger, supra

note 3; Curtis,

The Fourteenth

Amendment, supra

note 3; Curtis,

Further Adventures, supra

note 3. For a critique of Mr. Berger's

work, see Avian) Soifer,

Protecting Civil Rights: A Critique of Raoul Berger's History,

54 N.Y.U. L.

Rev. 651 (1979). For two important recent articles on incorporation, see Akin! Reed Amar,

The

Bill of Rights and the Fourteenth Amendment,

101 YALF. LJ. 1193 (1992) and Richard Aynes,

Misreadinglohn Bingham and the Fourteenth Amendment,

103

YALE

LJ. 57 (1993).

For a book that

finds a strong case for incorporation of the Bill of Rights, but that reads the Fourteenth Amend-

ment narrowly on other issues,

see EARL M. MAL1z,

CIVIL

RIGHTS,

THE

CONSTITUTION, AND

CONGRESS, 1863-69 (1990).

For important scholarship denying application of the Bill of Rights to the States under the

Fourteenth Amendment, see generally RAOUL

BERGER, TILE FOURTEENTH AMENDMENT AND THE

But or Rioirrs (1989),

NELSON,

supra

note 3, and Jonathan Lurie,

The Fourteenth Amendment:

Use and Application in Selected State Court Civil Liberties Cases, 1870

1890,28

AM. J.

LEGAL

HIST.

295 (1984).

For an analysis close to that of Charles Fairman (finding that some "absolute" liberties

like those in the Bill of Rights were protected, but not all), see generally James E. Bond,

The

Original Understanding of the Fourteenth Amendment in Illinois, Ohio, and Pennsylvania,

AKRON

L. REV. 435 (1985)

and James E. Bond,

Ratification of the Fourteenth Amendment in North Carolina,

WAKE FOREST

L. Rev. 89 (1984).

See

also

JAMES

BOND,

No EASY WALK TO

FREEDOM:

RECONSTRUCTION AND THE FOURTEENTH AMENDMENT

(forthcoming).

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



"privilege" to free speech.° General searches for anti-slavery publica-

tions, compelling self-incrimination, etc., were equally affronts to the

Constitution.

The Thirteenth, Fourteenth, Fifteenth and, later, the Nineteenth

Amendments altered the constitutional plan in accordance with the

liberty-equality blueprint, a progression that the institution of slavery

had made impossible.

After the adoption of the Fourteenth Amend-

ment, the question of what the Fourteenth Amendment meant moved

to the Supreme Court. In the

Slaughter House Cases°

the Court said

there was less to the Fourteenth Amendment than met the eye.

Section One of the Fourteenth Amendment: A New Birth of Freedom?

Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United States and

subject to the jurisdiction thereof are citizens of the United

States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States, nor shall any state

deprive any person of life, liberty, or property without due

process of law, nor deny to any person within its jurisdiction

the equal protection of the laws."°

There are well recognized methods of interpreting the Constitu-

tion.° We can look at the text, the plain or ordinary meaning of the

words used. We can look at the text contextually to see how similar

words are used elsewhere in the Constitution. We can delve into the

history giving rise to the provision. We can look at prior precedent. We

can explore the Constitution's overall structure, how it. is to work as a

whole—as an organism or a machine. Finally, we can consider wise

public policy, including moral and ethical concerns.

See

Curtis,

The 1859 Crisis, supra

note 47, at 1147-59.

For a careful analysis of the post-Civil War constitutional amendments in light of the

original Constitution and federalism, see generally Michael P. Zuckert,

Completing the Constitu-

tion: The Fourteenth Amendment and Constitutional Rights,

22 Puisllus 69 (1992) and Michael P.

Zuckert,

Completing the Constitution, The Thirteenth Amendment,

4 CONST. COMMENTARIES 259

(1987).

see also

Amar,

supra

note 62 (offering particularly elegant

textual analysis).

The Resolution of Congress March 4, 1789 transmitting the proposed amendments to the

states described them as "declaratory and restrictive clauses." THE COMMISSION ON THE BICEN-

TENNIAL or THE UNITED Stales CONSTITUTION, THE CONSTITUTION OF THE UNITED STATES AND

THE DECLARATION OF INDEPENDENCE 20 (1991);

see

Curtis, No STATE SHALL ABRIDGE, supra note

3, at 24, 91; Amar, supra note 62, at 1205-12;

(1:

Howard j ay Graham,

Our "Declaratory' Fourteenth

Amendment, 7

STAN. L. REV. 3,

37 (1954-55).

U.S. CoNsT. art. I, §§ 9-10.

See

Patterson v. Colorado, 205 U.S. 454, 464 (1907) (Harlan, J., dissenting). Tillie First

Amendment, although in form prohibitory, is to be regarded as having a reflex character and as

affirmatively recognizing freedom of speech and freedom of the press as rights belonging to

citizens of the linked States; that is, those rights are to be deemed attributes

national

citizenship ... ." Id.

(citing Civil Rights Cases, 109 U.S. 3, 20 (1883)).

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[Vol. 38:1

right to be free from unreasonable searches and seizures is the govern-

ment's duty not to search and seize unreasonably. Although the Fourth

Amendment recognized a "right of the people," it did not apply a

correlative duty to the states. The declaration that Congress shall make

no law abridging freedom of speech, freedom of the press and the

right of the people to assemble and petition, both assumes or declares

rights (freedom of speech and press and the right of the people to

petition) and specifically declares that Congress lacks power to abridge

them.

One could, and some do, argue that the First Amendment is

merely a congressional disability.

The result, when it comes to incor-

porating the Amendment as a limit on the states, is that there is

nothing to incorporate since states could hardly force Congress to pass

a law abridging freedom of the press." This argument focuses merely

on the denial of power and ignores the recognition of an American

right to free speech, press and petition that the denial of power was

designed to secure. It also ignores the possibility that lack of power to

pass laws directly aimed at communication concededly within freedom

of speech and press—such as political speech—can be seen either as

a privilege or an immunity.

The purpose of the First Amendment, of course, was to protect

freedom of speech, assembly, petition and of the press. Freedom of the

press was, as the Continental Congress recognized in 1774, a "right"

that promoted the communication of thoughts among subjects and

checked abuses of governmental power.

The colonists drew on the

Radical Whig tradition.

Cato's Letters

recognized free speech and press

as "great Bulwark [s] of Liberty."

See

Jay S. Bybee,

Taking Liberties with the First Amendment: Congress, Section 5, and the

Religious Freedom Restoration Act,

48 VAND. L. REV. 1539, 1589 (1995). A very similar argument

was expressed in 1866 by Democratic opponents of the Civil Rights 13ill to explain why the bill

could not be justified as enforcing the Bill of Rights. As to the Bill of Rights, Representative

Michael Kerr explained, "[t] hey are not guarantees at all, except to protect the States against the

usurpations of the Congress anti the General Government." CONG. GLOBE, 39th Cong., 1st Sess.

1270 (1866) (statement of Rep. Michael Kerr). For a thoughtful discussion of incorporation and

the religion clauses, see Kurt Lash,

The Second Adoption of the Establishment Clause: The Rise of

the Nonestablishment Principle,

27 ARIZ. ST

. L.J. 1085

(1995) and Kurt Lash,

The Second Adoption

of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment,

Nw. G. L. REV.

1106 (1994).

Bybee,

supra

note 76, at 1589.

Address to the Inhabitants of Quebec (1774)

1 THE BILL OF RIGHTS:

A DOCUMENTARY

HISTORY 223 (Bernard Schwartz ed., 1971) [hereinafter 1 THE BILL OF RIGHTS].

JOHN TRENCHARD

THOMAS GORDON, 1 CATO'S LETTERS: ESSAYS ON LIBERTY, CIVIL &

RELIGIOUS 101 (Da Capo, 6th ed. 1971) (1755).

December 19961



PIUVILEGES OR IMMUNITIES

CLAUSE



The American constitutional arrangement recognized the privi-

leges

and

made federalist provisions for their protection. The First

Amendment protected the privileges in the case of federal action.

As against state action, protection for the constitutionally recognized

American privileges of "freedom of speech and of the press," the right

of the people to assemble and petition, and free exercise of religion

at first depended on state laws and constitutions.

In introducing the Bill of Rights in the first Congress, Congress-

man James Madison proposed that no state shall violate the equal right

of conscience or freedom of the press. Every government, he insisted,

"should be disarmed of powers which trench upon those particular

rights."" Madison thought of the rights as existing; he did not propose

creating a right of free press against the states. I-Ie saw the proposal as

providing "security" for the rights. As to the argument that such a

proposal was unnecessary, because some states protected the right to

free press, Madison responded that there was no good argument

against a "double security," and he implored his colleagues to join him

in "obtaining the security" for these rights.

' Madison's perspective was

consistent with the American understanding that governments existed

to secure natural rights. In the end, the Senate did not concur in

Madison's plan for explicit limits on the states.

No security was pro-

vided to protect the right of free speech and press from state action.

But the basic recognition of the existence of Americans' "invaluable

privileges" or rights of freedom of religion, assembly, petition, speech

and of the press remained."

The first Congress, in transmitting the Bill of Rights to the people

of the states, described the amendments as "declaratory and restrictive

clauses."s

As to the First Amendment, it declared an American right

of free speech, press, assembly, petition and free exercise of religion

but only restricted or provided security against federal action, Al-

though legally unenforceable against the states, the declaration of

Americans' First Amendment rights was not meaningless. It provided

a rallying point for the people against state and federal abuses of

power. The guarantees

functioned in

this way in the crusade against

slavery.

2 THE BILL OF RIGHTS,

supra

nate 22, at 1033.

See id. at

1145

46.

hi.

at 1033.

COMMISSION ON THE BICENTENNIAL OF 'I'M CONSTITUTION, THE CONSTITUTION ot-"rutE

UNITED STATES AND THE DECLARATION OF INDEPENDENCE 20 (1991);

see also

Akhil Reed Amur,

The Bill of Rights as a Consolation,

100 YALE 1131, 1154

n.109 (1991).

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:I

Suppose the state of Virginia had first repealed its constitutional

guarantees for free speech and press and then had made it a crime to

advocate the election of anyone except incumbents or their chosen

successors. Can anyone doubt that this action would have been pro-

tested as a violation of the right of Americans to freedom of speech

and of the press? Would the answer that Americans had no such rights

have been regarded as a satisfactory answer? It is true that the privilege

would have been legally unenforceable, and the idea of an unenforce-

able right or privilege seems a contradiction in terms. But it is a mistake

to assume that Americans of the 18th and 19th centuries shared our

positivism. James Madison, for example, thought the Bill of Rights

secured natural rights.

Free speech and press are examples of such

rights.

In 1814 Thomas Jefferson wrote about a state court blasphemy

prosecution for the sale of a book: "1 am really mortified to be told

that,

in the United States of America,

a fact like this can become a subject

of inquiry, and of criminal inquiry too, as an offense against religion."

The prosecuting state was not Jefferson's Virginia. Jefferson did not

contend that the prosecution was barred by the First Amendment, but

he asked, "Is this then our freedom of religion?"

As his italicized

"United States of America" and his reference to "our freedom of

religion" indicate, for Jefferson there was a freedom of religion for

Americans quite distinct from the question of whether state courts or

state law respected it. The privilege was distinct from the remedy for

its violation."

In this light, as a textual matter, the Privileges or Immunities

Clause of the Fourteenth Amendment is clear and simple. The Ameri-

can privileges of free speech, press, petition, assembly and religion

(among others) would henceforth be legally protected, even if states

attempted to abrogate them. The years before the Civil War had proved

that the previous constitutional arrangement for protecting the privi-

leges was inadequate. The Fourteenth Amendment did not create new

Cf., 2 THE 111 LI, OF RIGHTS,

supra

note 22, at 1029. One might argue, to the contrary of

the understanding of "declaratory" set out above, that the absence of federal power over speech

or press was all that was being declared.

Letter from Thomas Jefferson to N.C. Dtdief (Apr. 19, 1814), in THOMAS JEFFERsoN,

WRITINGS 1334 (Library of America ed., 1984).

Id.

n some occasions at least, Jefferson had a less protective view of libel of public officials

and thought. that while no federal remedy existed for such defamation, a remedy was available

at state law.

See LEoNARD

T EMERGENCE.

—EVY, - HE OF A FREE

l'itcss 340-41 (1985).

December 1996]



PRIVILEGES OR IMMUNITIES CLAUSE



privileges. It created a new method of protecting old and inadequately

secured privileges.

The use of the words "privileges" and "immunities" as equivalent

to "rights in the Bill of Rights" and equivalent to denials of power is

so natural and reasonable that the Supreme Court has used the phrase

this way itself. It has done so even as it held that states could abridge

some supposedly non-"fundamental" rights—or "privileges or immuni-

ties" as the Court described them—in the Bill of Rights.

For example, some of the

privileges or immunities

in the Bill of

Rights, Justice Cardozo gravely explained in

Palko v. Connecticut,

were

so fundamental that states had to obey them under the

Due Process

Clause.

Other privileges or immunities—at that time including jury

trial, double jeopardy and the privilege against self incrimination—

were less important, so states could disregard them.

Raoul Berger has argued that a plain language argument is mean-

ingless because we deal with legal provisions, not "street terms!" If

one takes the idea of popular sovereignty seriously, this argument

cannot stand. The common understanding of words by ordinary peo-

ple should be at least part of what: counts, for it is their will, reflected

by framers and ratifiers, that ultimately legitimizes the Constitution.

Over the years I have asked a number of people who have not had

a legal education what the words "privileges or immunities" mean in

Section 1 of the Fourteenth Amendment. Almost all say that the privi-

leges of citizens of the United States that no state can abridge would

include rights in the Bill of Rights. Textual analysis suggests that many

Bill of Rights guarantees are also protected from state action by the

Due Process Clause.

Many guarantees of the Bill of Rights are process guarantees. They

tell what sort of process is "due" or required. Under a textual analysis,

the criminal procedure guarantees of the Bill of Rights (confrontation,

grand jury indictment, compulsory process to obtain witnesses, public

trial) are process guarantees that would be protected for all persons

under the Due Process Clause, as well as for all citizens under the

Privileges or Immunities Clause.

302 U.S. 319 (1937).

See id.

at '326.

•1

Raoul Berger,

Incorporation of the Bill of Rights in the Fourteenth Amendment, A Nine Lived

Cal,

42 011(0 Sr. L.J. 435, 436-37 (1981).

See

Crosskey,

supra

note 62, at 6.

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BOSTON COLLEGE LAW REVIEW



[Vol. 38:1

b. Historical Linguistics

"Well," you may say, "you are using a dictionary copyrighted in

1991 to explicate a provision written in 1868. This, to say the least, is

a hit of an anachronism." Granted, but an older dictionary yields

see also

CURTIS,

No STATE SHALL ABRIDGE,

St/pra

note 3, at 64-65 (exploring

use

by William Penn and Americans of the Revolutionary generation);

id.

at 75-76 (exploring use of privileges and immunities by Blackstone to encompass liberties set

out in English antecedents of American Bill

of Rights).

See

CURTIS,

No STATE SHALL ABRIDGE,

supra

note 3, at 74-76. For more use

historical

linguistics, see

id. at

64-65.

For application of the same methods to the Civil Rights Act, see, for

example,

id.

at 71-77.

2 THE BILL OF RIGHTS,

supra

note 22, at 1028.

id. at 1096.

Id.

at 1033.

CONG. GLOBE, 38th Cong., lst Sess. 1202 (1864) (statement of Rep. Wilson).

December 1996]



PRIVILEGES OR IMMUNITIES CLAUSE



Contextual Analysis

As used here, a contextual analysis looks at the use of the same or

similar words elsewhere in the Constitution to illuminate how they are

used in the clause under consideration. When the Constitution seeks

to prevent states from abridging rights or privileges or immunities, how

does it do so elsewhere? It uses the "No state shall" form in Article I,

Section 10. "No state shall . . . pass any ex post facto law . . . ." So the

Fourteenth Amendment uses the very same language used by the

original Constitution to set limits on the states, and as Akhil Amar has

noted, uses the word "abridge" as used in the First Amendment, this

time applying it to states."'"

Precedent

The precedents of

Barron v. Baltimore'

and

Dred Scott v. Sand-

ford

102

provide an understanding of the Fourteenth Amendment's pur-

poses.

Barron

held that the guarantees of the Bill of Rights did not

limit the states and that had the Framers intended such a limit they

would have prefaced the guarantees with the "no state shall" form.

John Bingham, primary drafter of Section 1, later explained that

Bar-

ron

provided his rationale and blueprint for using the "no state shall"

form."}

Dred

Scott

held that all Americans of African origin were tainted

by slavery and could not be citizens of the United States. They were

entitled to none of the Constitution's rights or privileges. The drafters

designed the provisions that "[aill persons born or naturalized in the

United States and subject to the jurisdiction thereof are citizens of the

United States, and of the state wherein they reside" and that "[n]o state

shall make or enforce any law abridging the privileges or immunities

of citizens of the United States" to overrule both aspects of

Dred

Scott

—

that

blacks could not be citizens and were entitled to no consti-

tutional privileges or rights—and also to overrule

Barron's

holding that

the guarantees of the Bill of Rights did not limit the states.'"

nin See

CURTIS,

No STATE SlIAI.I. ABRIDGE,

supra

note 3, at 161; AII1111

supra

note 62, at 1218,

1219-20.

101

32 U.S. 243 (1833).

112

60 U.S. 393 (1856).

See.

CURTIS,

STATE SHALL ABRIDGE,

supra

note 3, at 161.

104

See

Crosskey, supra note 62, at 4-6.

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

4. History: Liberty and Equality

Bill of Rights Denials and Racial Discrimination

Two basic themes dominate the history of the Fourteenth Amend-

ment, and the themes are closely intertwined. The first was the prob-

lem of slavery and the status of the newly freed slaves. The second was

protection for civil liberties of American citizens. Slaves were not enti-

tled to guarantees of federal or state bills of rights, Indeed, according

to Chief Justice Taney's opinion in the

Dred Scott

case, even free blacks

suffered from the taint of slavery and could not be citizens of the

United States. Since all constitutional privileges, Taney said, including

rights in the Bill of Rights, belonged only to citizens, free blacks

received none of the protections for liberty set out in the Constitu-

tion.

105

Parallel to the citizenship, liberty, and equality problems of blacks

were the attacks on the civil liberties of whites who opposed slavery. As

we have seen, Southern state laws in effect made criticism of slavery a

crime. Republicans could not campaign in the South, and a Republi-

can campaign book produced indictments for Southerners who circu-

lated it and a North Carolina indictment for some Northern Repub-

licans who endorsed it. Endorsers of the book included over sixty

Republican congressmen. Among this group were members of the

Joint Committee who later reported the Fourteenth Amendment and,

notably, John Bingham, primary author of Section 1.'°'

Criminal procedure protections of the Bill of Rights were impor-

tant to Republicans because they had been targets of contemplated

Southern prosecutions. In this context, the suggestion that Repub-

licans who passed the Fourteenth Amendment planned to return lib-

erties like free speech and press, protection against unreasonable

searches and seizures, the privilege against self-incrimination, or the

immunity against cruel and unusual punishments to the unfettered

discretion of the semi-sovereign states appears very unlikely. It is par-

ticularly unlikely since those Republicans who framed the Fourteenth

Amendment explicitly recognized the obvious—that state constitu-

tional guarantees for these rights could be changed from year to year.

Dred Scott, 50 U.S. (19 How.) 393 (1856).

106

See CURTIS, No STATE SHALL ABRIDGE,

supra

note 3, at 27-55; Curtis,

The 1859 Crisis,

supra

note 47, at 1143-45.

107

Senator Howard noted:

[The first eight amendments] do not come within the sweeping clause of the

Constitution authorizing Congress to pass all laws necessary and proper for carrying

December 19961



PRIVILEGES OR IMMUNITIES CLAUSE



Furthermore, at the time the Fourteenth Amendment was pro-

posed, Congress had not required black suffrage, and it seemed that

Southern states might be readmitted after ratifying the Fourteenth

Amendment. If so, Republicans recognized, Republican control of

Southern state governments would be doubtful at best. Guarantees of

liberty are always of crucial importance to those not in power, Many

Republicans suggested that under a proper interpretation, the Consti-

tution prohibited states from violating guarantees of the Bill of Rights

and other constitutional privileges even prior to the passage of the

Fourteenth Amendment, and few, if any, challenged this interpreta-

tion.

After the Civil War, Republicans in Congress complained that the

South was repeating its pre-Civil War assault on individual rights, in-

cluding free speech.'"" Both the prototype of the Fourteenth Amend-

out the foregoing or granted powers, but they stand simply as a bill of rights in the

Constitut

on without power on the part of Congress to give them full effect; while

at the same

tittle

the States arc not restrained from violating the principles

CM-

braced in them except by their own local constitutions, which may be altered from

year to year. The great ottleet of the first section of this amendment is, therefore,

to restrain the power of the States and compel them at all tittles to respect these

great fundamental guarantees.

CONG. GLOBE, 39th

Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard);

see

CURTIS,

STATE SHALL ABRIDGE,

MPH/

note 3, at 88-99;

see also

CONG. GLOBE, 39th

Cong., 1st Sess. 129

(1866) (statement. of Rep. Hotchkiss) (describing need firr constitutional amendment limiting

states and

not.

merely granting Congress legislative power).

Some Republicans did not embrace a uniformly libertarian interpretation of "freedom or

speech." During the Civil War Lincoln did exile a Democratic politician for making an anti-war,

anti-draft, anti-black speech, and in the immediate aftermath of the war, for example, General

Grant closed the

Richmond Enquirer

lor

uttering disloyal sentiments. Lincoln insisted that wartime

was different and that such measures would not persist in peacetime. See JAMES

M. MCPHERSON,

RAITLE CR4' OF FREEDOM: THE Clvll, WAR

EitA 597-99 (1988);

see also

CONG, GLOBE,

42d Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham).

115

See

CURTIS,

No STATE SHALL ABRIDGE,

supra

note 3, at 131-53.

December 1996]



PRIVILEGES OR IMMUNITIES CLAUSE



rights to bear arms, to hold public meetings without prior approval, to

hold unauthorized religious services, etc. For violation of these provi-

sions they faced cruel punishments.

In addition, their freedom of

movement was limited and they were often denied the rights to testify

in cases to which whites were a party, to own property,

to contract,

etc."" Both Unionists and blacks also faced private violence with politi-

cal purposes, just as opponents of slavery had faced private violence

before the Civil War. Indeed, many Republican complaints about vio-

lations of free speech involved mob action, not state action. While the

Black Codes have been cited as denying blacks equality, actually they

typically denied both liberty and equality, and many of them denied

Americans of African descent liberties referred to in the Bill of Rights.

The Civil Rights Act of 1866 has figured prominently in discus-

sions of the meaning of the Fourteenth Amendment and it figures

prominently in arguments against construing the Amendment as a

charter of national privileges that no state can abridge. It is also related

to claims for protection of economic liberty under the Fourteenth

Amendment. For those reasons, sections which follow will discuss the

Civil Rights Bill, arguments for it and its relation to the Fourteenth

Amendment. Then I will consider arguments—based on structure and

ethical considerations—for requiring states to obey fundamental privi-

leges such as those in the Bill of Rights. In the argument against such

application, I will look again at the debate surrounding the Civil Rights

Act. The discussion of the Civil Rights Act took place before final

debates on the Fourteenth Amendment and shows uncertainty on a

number of points. In general, it is consistent with reading the amend-

ment as encompassing privileges of citizens of the United States includ-

ing those in the Bill of Rights. When understood in terms of Republi-

can ideas, the Civil Rights Act, like the Fourteenth Amendment itself,

supports national guarantees for both liberty and equality.

The Civil Rights Act of 1866

One Republican response to the problem of the "Black Codes"

was the Civil Rights Act of 1866. After declaring persons born in the

country to be citizens, it continued:

Such citizens of every race and color, without regard to any

previous condition of slavery ... shall have the same right, in

every State and Territory in the United States, to make and

117 See

1 DOCUMENTARY HISTORY OF RECONSTRUCTION

279-81 (Wafter L. Fleming ed., 1906}.

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BOSTON COLLEGE LAW REVIEW



[Vol. 38:1

enforce contracts, to sue, be parties, and give evidence, to

inherit, purchase, lease, sell, hold, and convey real and per-

sonal property,

and to full and equal benefit of all laws and

proceedings for the security of person and property, as is enjoyed

by white citizens.''`'

One problem, of course, was exactly where in the Constitution

Congress found the power to pass this statute. It was a major departure

from the semi-sovereign state paradigm. Many Republicans argued that

allegiance and protection were reciprocal. Just as the nation could

claim the allegiance (and lives if necessary) of citizens, it had a duty

protect citizens' rights.'

)

One more textual source of power was the Thirteenth Amend-

ment, seen by many Republicans as securing liberty to all citizens of

the United States and allowing Congress to remove badges and inci-

dents of slavery.

121

Democrats countered that many Northern states,

though they banned slavery, had discriminated against free blacks. The

Chairman of the House Judiciary Committee and others suggested that

the power to pass the law could be found in congressional power to

enforce the Bill of Rights, especially the Due Process Clause. Congress-

man James Wilson, Congressman William Lawrence, Senator Lyman

Trumbull and others also pointed to the Privileges and Immunities

Clause of Article IV, Section 2, but were met with the argument that it

applied only to give out-of-state visitors the rights a state

generally

accorded to its own citizens.

122

119

Act of April 9, 1866, 14 Stat. 27 (emphasis added).

See Cow..

GunsE, 39th Cong., 1st Sess. 1294 (1866) (statement of Rep. Wilson).

See

generally

Richard Aynes,

Constitutional Responsibility and the Rig

hi Not to Be a Victim, 11

PEI.P.

REv. 63, 75-84 (1984).

121

See

CONG. GLOBE,

39th Cong., 1st Sess. 474 (1866) (statement

Seri. Trumbull).

122

See

CURTIS, NO

STATE

SHALL, ABRIDGE,

supra

note 3, at 71-81;

see also

CONG. GLOBE,

39th

Cong., 1st Sess. 1153 (1866) (statement of Rep. Thayer) (justifying Civil Rights Bill under power

of Congress

enforce Bill of Rights, particularly Fifth Amendment);

id.

at 1833 (statement of

Rep. Lawrence) (asserting that Civil Rights Bill's rights arc incidental to Fifth Amendment right

to due process and suggesting Fifth Amendment as source of power to pass Civil Rights Bill);

id.

at 1291 (statement of Rep, Bingham) (characterizing Civil Rights Bill as attempt to enforce

guarantees of Bill of Rights but going on to assert that constitutional amendment is necessary

for that purpose);

id.

at 1294 (statement of Rep. Wilson) (justifying Civil Rights Bill by power of

Congress to enforce Bill of Rights);

id.

at 1270 (statement of Rep. Kerr) (denying power of

Congress to pass Civil Rights Bill under its power to enforce Bill of Rights);

id.

at 474-75

(statement of Sen. Trumbull) (citing Article IV in conjunction with liberty protected by Thir-

teenth Amendment and Civil Rights Bill);

id.

at 1117-18 (statement of Rep. Wilson) (charac-

terizing Article 1V, Section 2 as guarantee of right. to liberty);

id.

at 1835-36 (statement of Rep.

Lawrence) (same);

id.

at 1269 (statement of Rep. Kerr) (denying power to pass Civil Rights Bill

under Article IV, Section 2).

December 1906



PRIVILEGES OR IMMUNITIES CLAUSE



John Bingham pointed out that

Barron

held the Bill of Rights

amendments did not limit the states nor, he insisted, did the Constitu-

tion provide for congressional enforcement of the Bill of Rights against

state action. He insisted that a constitutional amendment was needed

to allow Congress to enforce the Bill of Rights by passing the Civil

Rights Bill.'" Congress passed the Civil Rights Act, but to be sure about

its power it also passed Bingham's protections in Section 1 and granted

congressional power to enforce them in Section 5. It then reenacted

the Civil Rights Bill after the ratification of the Fourteenth Amend-

ment.'"

The Response of the Fourteenth Amendment to Threats to Equality

The Fourteenth Amendment dealt with the problem of equality

for Americans of African descent in two ways. Through the Equal

Protection Clause, it prohibited both many racially discriminatory laws

and racially discriminatory enforcement, as Senator Howard noted.

125

By making blacks citizens and guaranteeing all American citizens a

bundle of fundamental rights under the Privileges or Immunities

Clause, the Fourteenth Amendment ensured equality as to these rights.

(If every citizen gets the rights, then they are equal in that respect).

The guarantee of basic rights also provided a minimum standard of

rights for all Americans. In addition to protecting absolute rights, some

Republicans may have also read the original Privileges or Immunities

Clause as overlapping with the Equal Protection Clause—securing

some measure of equality at least with reference to fundamental inter-

ests under state law. v

As to the application of "absolute" (used here as opposed to equal

but repealable) privileges of American citizens (including those in the

Bill of Rights) as a limit on state action, statements by leading Repub-

licans are relatively clear and crisp.

127

As to the nature of federal

protection of rights other than federal constitutional privileges or the

123 See.

CONG.

Gi.onr., 39th Cong., 1st Sess. 1093, 1291 (186(1) (statement of Rep. Bingham)

("1 am with him in an earnest desire to have the bill of rights in your Constitution enforced

everywhere."); id. at 1292 (statement of Rep. Bingham) (asserting lack of Congressional power

to pass the Civil Rights Bill—"1 have advocated here an amendment which would arm Congress

with power to ... punish all violations by State officers of the bill of rights . . .").

124

See

Enforcement Act of 1870, ch. 114, § 18 (1870).

125

Com;. CLom., 39th Cong., 1st Sess. 2766 08(16) (statement of Sen. Howard).

126

Cf.

Co e.

GLOBE,

39th Cong., 1st Sess. 1833-37 (1866) (statement of Rep. Lawrence)

(interpreting Article IV, Section 2 prior to passage of Fourteenth Amendment).

127

At least this is so once one recognizes that many did not accept Supreme Court pro-

nouncements as a correct statement of the law.

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(Vol. 38:1

effect of those privileges on state law rights to hold property, contract

and testify, discussion in the Thirty-Ninth Congress is much less clear.

The problems revolve around rights that had been traditionally pro-

tected by state law and that were protected against discrimination by

the Civil Rights Act of 1866, such as the rights to contract and to testify.

The same areas of relatively greater clarity and uncertainty apply

to the text of the Privileges or Immunities Clause. To read it as pro-

tecting existing "absolute" constitutional rights or privileges of Ameri-

can citizens that states will no longer be permitted to abridge is a

relatively straightforward reading. To read it only (or partly) as a

protection of rights that states may fully eliminate is, as a purely textual

matter, less compelling, except to the extent that the clause incorpo-

rates other constitutional privileges or structural understandings that

produce this effect. I will consider the conundrum of the Privileges or

Immunities Clause of the Fourteenth Amendment and state law rights

in a transitional section between arguments for and arguments against

application of absolute national privileges to the states.

5. Structure

Arguments from structure focus on a holistic analysis of the Con-

stitution—on how the Constitution must be construed to fulfill its

overall design and purpose.'

As we have seen, two models of consti-

tutional analysis rose out of the struggle over slavery. One was the

model of the constitutional compact designed to protect slavery. The

concept of the Constitution as a compact securing slavery required

strong, semi-sovereign states that were able to

protect

the peculiar

institution from political criticism. The other was a liberty model.

Federalism was an important value in the liberty model because it

contributed to liberty.'

But under the liberty model, semi-sovereign

states needed to be restrained to keep them from destroying funda-

mental rights, like freedom of speech and freedom from unreasonable

searches and seizures.'m

In accordance with the Declaration, a basic purpose of govern-

ment was to secure people their rights to life, liberty and the pursuit

128

See generally

BLACK,

supra

note 67 (discussing structure and relationship as methods of

judicial interpretation). For a thoughtfill structural analysis of the problems raised by the post

Civil War amendments, see Murphy, supra note 54.

129

See, e,g., Cum:.

Gi.oisE, 39th Cong., 1st Sess. 1292 (1866) (statement of Rep. Bingham);

id.

at 1832-33 (statement of Rep. Lawrence);

id.

at 1088 (statement of Rep. Woodbridge);

id.

app. 99 (statement of Rep. Yates);

id.

app. at 257 (statement of Rep. Baker);

CURTIS,

STATE

SHALL. ABRIDGE,

supra

note 3, at 42.

I"See

Gowns, No STATE

SHALL ABRIDGE,

supra note 3, at 42.

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



of happiness and their right to govern themselves. Keeping state gov-

ernment from destroying these values was therefore consistent with the

proper role of state governments and entirely consistent with federal-

ism. It did not undermine federalism to say that states could not do

what no government should do.

131

A basic purpose of the Constitution was to secure republican, or

representative, government. The Constitution specifically provides that

the United States "shall guarantee to every State in this Union a

Republican Form of Government."

152

Laws like those of the Southern

states before the Civil War, which had made it a crime to advocate

peaceful legal change, were flatly inconsistent with the idea of repub-

lican government. Free speech is the system by which the people

consider issues, set the political agenda, reach consensus and decide

public policy. It is the essential means by which popular sovereignty is

effected. (Many Southerners, of course, read the constitutional guar-

antees for slavery as an implicit limit on the republican government

guarantee.)

The criminal procedure guarantees found in the Bill of Rights are

also safeguards for republican government. This is so because of the

unfortunate tendency of those in power to use the criminal justice

system in an attempt to crush their political enemies—as was seen in

the case of the Levellers, the Sedition Act prosecutions and the prose-

cutions for anti-slavery speech in the South before the Civil War. More

recently, the Watergate tapes showed that President Nixon had

planned prosecutions for his political enemies.

133

The motive for refus-

ing to apply the Bill of Rights and broader, vaguer liberties to the states

was also structural: a concern to preserve a version of federalism more

like the sort which existed before the Civil War.

6. Ethical Considerations

The Declaration of Independence appealed both to equality and

to basic rights. Indeed, protection of basic rights is essential for a

functioning representative government and to preserve human dig-

151

See id.

at 41.

lss

U.S.

CoNsT. art. IV, g 4.

133

j. ANTtioNY Lux As,

NIGHTMARE,:

THE UNDERSIDE. OE THE NIXON YEARS 490 (1976);

JONATHAN

SIIELL,

THE

TIME OF ILLUSION 188-92 (1975).

It is worth recalling how we learned of

a Nixon White House burglary of Daniel Ellsberg's psychiatrist's office—a burglary designed to

get information to defame Ellsberg in the press so that he could be denied trial by an impartial

jury—all because Ellsberg let the public know what was in the Pentagon papers, We learned about.

it, at least in part, because of the exclusionary rule.

See

PrrEx SCHRAG, THE TEST

of LOYAITY:

DANIEL

ELLsBERG AND

THE RITUALS

SECRET

GOVERNMENT

329, 336 (1974).

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[Vol. 38:1

nity. The states' ability to eliminate such rights altogether for American

citizens (and the nation's inability to do anything about it) contra-

dicted the evolving ethical premise of the American nation.

The Conundrum of State Law Rights: What Was the Extent and

Nature of Protection for These Rights Under the Privileges or Immunities

Clause of the Fourteenth Amendment? Mare on the Civil Rights Act.

1. In General

At this point it is useful to return to a detailed discussion of the

Civil Rights Act. The Act is the focus of many arguments against

protection for absolute rights under the Fourteenth Amendment and

for a heightened federal protection for economic interests. The discus-

sion that follows is a natural transition between arguments for and

against application of absolute privileges as a limit on state power.

The nature of protection for state law rights of property and

contract under the Privileges or Immunities Clause of the Fourteenth

Amendment—as distinguished from the nature of the protection for

such rights under the Civil Rights Act or under the Equal Protection

Clause—is a difficult question. Typically, scholars who have attempted

to answer it have attempted to do so by looking at the Civil Rights Act

and the debates surrounding it, an act whose text and history are

somewhat different from Section 1 of the Fourteenth Amendment read

as a whole.

Many assume a correspondence between all the clauses of Section

1 of the Fourteenth Amendment, on one hand, and the Civil Rights

Bill, on the other. They then attempt to move from that correspon-

dence to a full understanding of

one

of Section l's four clauses.

In reading what follows the reader should recall that many quoted

discussions are about the Civil Rights Bill, not the Privileges or Immu-

nities Clause of the Fourteenth Amendment. The thesis advanced here

is simply that while most Republicans believed that racial discrimina-

tion in certain rights traditionally accorded by state law was not per-

missible, the pre-Fourteenth Amendment basis for this conclusion and

its relation to the subsequently enacted clause that protected privileges

or immunities of citizens of the United States is a matter of consider-

able confusion. And this is so even though it is relatively clear that

leading Republicans believed that American citizens enjoyed "abso-

lute" rights including those in the Bill of Rights, and that these rights

would be among the privileges or immunities of citizens of the United

States which no state may abridge.

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From a review of the Civil Rights Bill debate I will conclude that

Republicans believed in "absolute" rights that states should obey; that

they believed that racial discrimination in rights such as the right to

testify and to own property violated rights of American citizens of

African descent; and that they wished to protect a large role for the

states on

matters

like property, contract and testimony—provided that

racial, caste or similar discrimination would not be allowed. Republi-

can understanding of the relation of the Privileges or Immunities

Clause of Article IV to contract and property rights of persons who

were residents of a state is not clear. Many later read the Equal Protec-

tion Clause to outlaw racial and similar discrimination—including dis-

crimination in substantive rights such as the right to hold property.

Finally, many were entirely unwilling to totally federalize questions

such as the right to hold property or to make contracts. For all these

reasons, I conclude that locating the protection against racial and

similar discrimination as to substantive rights under state law in the

Equal Protection Clause, as the court has done, makes a good bit of

sense and there is little reason to switch anti-discrimination analysis to

the Privileges or Immunities Clause of the Fourteenth Amendment. I

also conclude that while there is some support for a federal right to

hold property, testify, etc. in the debates, federalization of state prop-

erty or contract law was not supported by many who voted for the

Fourteenth Amendment. For many leading sponsors of the Fourteenth

Amendment, the equality to be guaranteed was limited, in the same

sense that it did not inhibit broad state power to classify on what. today

we see as non-suspect grounds.

While clear and crisp statements by a number of leading Repub-

licans indicated that states were obligated to respect fundamental ab-

solute privileges of American citizens, including those in the Bill of

Rights, the discussion is less clear as to the breadth of those protected

rights (beyond, for example, liberties explicit in the constitutional

text). The discussion is also less clear about the impact of the recogni-

tion of federally secured rights on federalism. To the extent that a

limited group of rights was secured, restriction of state power would

be correspondingly limited. To the extent that the Constitution di-

rectly guaranteed citizens the rights to life, liberty and property and

these rights were both broadly interpreted and interpreted as "abso-

lute," then Congress might essentially eliminate state power with pre-

empting federal laws. (There was no Republican consensus in favor of

such an approach.) John Bingham, for example, read an implicit

guarantee of equal protection into the Due Process Clause but con-

cluded that the equality required was limited and did not upset many

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[Vol. 38:1

state classifications dealing with property—such as the rights of mar-

ried women.

To confuse the picture further, before the adoption of the Four-

teenth Amendment, Republicans often said both that the national

government could protect the life, liberty and property of the citizen,

and that matters of contract and property were essentially state law

matters, subject to the reservation that states could not discriminate

based on race or national origin in granting such rights.'

The idea

that property and contract were primarily

state

law matters repre-

sented, in the view of many Republicans, not a simple congressional

policy choice, but a desirable constitutional mandate. The idea that

economic liberties are part of the liberty protected by the Fourteenth

Amendment, but that federal court scrutiny of regulations impacting

such liberties would typically be quite permissive, would also be con-

sistent with how many Republicans viewed the matter.

Some assume a total identity between rights in the Civil Rights Bill

read as only a right to equality under state law, certain rights under

state law, the Article IV Privileges or Immunities Clause and the Four-

teenth Amendment's protections for privileges or immunities of citi-

zens of the United States. In fact, things are much more complex.

2. Some Arguments Republicans Made for the Civil Rights Bill and

Discussions of Article IV, Section 2

Senator Trumbull managed the Civil Rights Bill in the Senate. He

referred to the discriminatory Black Codes and said, "The purpose of

the [Civil Rights] Bill ... is to destroy all these discriminations and to

carry into effect the [Thirteenth] . . . amendment."'" He then said

that Congress could enforce the Thirteenth Amendment by securing

liberty to the slave.'" "[A]ny statute which is not equal to all, and which

deprives any citizen of civil rights which are secured to other citizens,

is an unjust encroachment upon his liberty; and is, in fact, a badge of

servitude."'" A law that did not allow a "colored person to hold prop-

141

Carrepare

CONG. GLOBE,

39th Cong., 1st Sess. 1837 (1866) (statement of Rep. Lawrence),

with id,

at 1151-55 (statement of Rep. Thayer),

and id.

at 1294 (statement of Rep. Shellabarger).

"Now, Mr. Speaker, if this section did in fact assume to confer or define or regulate these civil

rights, which are named by the words contract, sue, testify, inherit,

&c..

then it would, as seems

to me, be an assumption of the reserved rights of the States and people."

Id.

at 1293 (statement

of Rep. Shellabarger).

195 CONG. GLOBE, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Trumbull).

136

Id.

(statement of Sen. Trumbull).

197

Id.

(statement of Sen. Trumbull).

December I 9961

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PRIVILEGES OR IMMUNMES CLAUSE



erty, to teach, does not allow him to preach is certainly a law in violation

of the rights of a freeman" and could be declared void under the

Thirteenth Amendent.

138

Trumbull proceeded to consider the Privileges or Immunities

Clause of Article IV, Section 2, which he identified with protecting

migrants from other states in liberty and in "fundamental rights which

belong to every free person."m Native born citizens of the state, Trum-

bull insisted, were much more entitled to these rights.

" Rights of states

were not invaded by the Civil Rights Bill because states which did not

discriminate against nonwhite citizens as to the right to acquire prop-

erty, to come and go at leisure, to enforce rights in the courts, and to

inherit, etc., would be unaffected by these provisions."' "Each state,"

he said, "so long that it does not abridge the great fundamental rights

belonging under the Constitution, to all citizens, may grant or with-

hold such rights as it pleases.

"142

Trumbull said he had cited cases under Article IV to show what

were "rights of a citizen of the United States," including the right to

liberty and to contract, to hold property and to maintain court actions.

Ele admitted the decisions were limited to the rights that a citizen "in

one

state

has on going into another State, and not to the right of the

citizens belonging to the State."

143

But he thought that because judicial

decisions under the Privileges or Immunities Clause had held "that the

rights of citizens of the United States were certain great fundamental

rights such as the right to life, to liberty, and to avail one's self of the

laws passed for the benefit of the citizen to enable him to enforce his

rights," that these rights would pertain to African-Americans made

citizens pursuant to the Thirteenth Amendment.'

The argument for

equality in the right to contract, hold property and testify is sometimes

more structural than bound to a particular clause, with particular

clauses often being used to explicate the underlying structure of equal-

ity. Equality can be produced either by a guarantee of equality or by

"absolute" rights, which are by their nature available to all—though

the degree of judicial protection could vary dramatically depending

on the nature of the right.

130 Id.

at 475 (statement of Sen. Trumbull).

Id.

at 474 (statement of Sen. Trumbull).

140

GONG,

GLotte, 39th Gong., 1st Sess. 475 (1866) (statement of Sen. Trumbull).

141

See

id. at

475-76 (statement of Sen. Trumbull),

142

Id.

at 1760 (statement. of Sen. Trumbull).

143

Id, at

600 (statement of Sen. Trumbull).

144 Id. (statement of Sen. Trumbull).

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3. The Bill of Rights as Providing Power to Pass the Civil Rights Bill

Congressman James Wilson managed die Civil Rights Bill in the

House. He indicated that the Bill's prohibitions turned on racial dis-

crimination.'`

He justified passage of the Bill under the Thirteenth

Amendment."" If the state would practice the constitutional declara-

tion of Article IV, Section 2's Privileges or Immunities Clause and

enforce it as meaning the right to protection of the government, the

enjoyment of life and liberty, and the protections set out in

Garfield,

there would be no need for the Civil Rights Bill."' Wilson had pre-

viously interpreted Article IV, Section 2's Privileges and Immunities

Clause to include freedom of religious opinion, freedom of speech and

freedom of the press.

He believed the rights in the Civil Rights Bill

were encompassed or implied in the rights to life, liberty and property

in the Federal Bill of Rights together with the rights necessary to make

those rights meaningful. He insisted Congress could enforce guaran-

tees of the Bill of Rights, specifically, the Due Process Clause, and that

such power justified the Civil Rights Bill.

149

"[C]itizens of the United States, as such," Wilson insisted, "are

entitled to certain rights . . . [and] being entitled to those rights it is

the duty of the Government to protect citizens in the perfect enjoy-

ment of them."'"" He emphatically denied that "the little state of Dela-

ware has a hand stronger than the United States; that revolted South

Carolina may put under lock and key the great fundamental rights

belonging to the citizen, and we must be dumb; that our legislative

power cannot be exercised; that our courts must be closed to the

appeal of our citizens."

151

What are the great civil rights to which the first section of the

[Civil Rights] bill refers? I find in the bill of rights which the

gentleman [John Bingham] desires to have enforced by an

amendment to the Constitution that "no person shall be

deprived of life, liberty, or property without due process of

law." I understand that these constitute the civil rights belong-

ing to the citizens in connection with those which are neces-

145

CONG. GLOBE,

39th Cong., 1St Sess. 1118 (1866) (statement of Rep. Wilson).

146

M. (statement of Rep. Wilson).

147

See id.

at 1117 (statement of Rep. Wilson),

148

CONC, GLom, 38th Cong., lot Sess. 1202 (1864) (statement of Rep. Wilson).

meow.. GunsE, 39111 Cong., lot Sess. 1294 (1866) (statement of Rep. Wilson).

150

(statement of Rep. Wilson).

151

Id.

(statement of Rep. Wilson).

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PRIVILEGES 01? IMMUNITIES CLAUSE



sary for the protection and maintenance and perfect enjoy-

ment of the rights thus specifically named, and these are the

rights to which this bill relates, having nothing to do with

subjects submitted to the control of the several States.'"

Representative Lawrence also cited the Due Process Clause from

the Bill of Rights to establish the existence of "certain absolute rights

which pertain to every citizen . . . and of which a State cannot consti-

tutionally deprive him."''

There were incidental rights necessary to the

enjoyment of "absolute" rights—such as the right to make and enforce

contracts and to have the benefits of laws for the security of person

and property. He cited the Privileges or Immunities Clause of Article

IV, Section 2 for the proposition that "citizens of each State" if they

remove from one state to another "'shall be entitled to all privileges

and immunities of citizens' of the United States 'in the' State to which

they remove."'" From this Lawrence concluded that "fundamental civil

privileges" were "equal for all citizens."

For Lawrence and Wilson,

the equality guaranteed by the Civil Rights Bill derived from equal

entitlement of citizens to certain "absolute" rights—like due process—

which the state must respect and cannot abrogate, from the fact that

certain rights such as the right to testify are incidental to such rights

and from the fact that the Privileges or Immunities Clause of Article

IV implied equality in fundamental rights among citizens. Lawrence

and Wilson read Article IV, Section 2 to support the equality of rights

for blacks. For example, for people of different colors, there are certain

rights states could not abrogate for anyone, like due process, and

certain incidental rights they could not totally deny like the right to

testify and bring court

actions.

Whether the equality conies from the

national nature of the right shared by all or from a mere guarantee of

equality is not always clear, but for Lawrence, Wilson and others the

former seems, at least in part, to be the case. Leading Republicans

often suggested that the degree of permissible state regulation of

economic rights and other state law rights was large and federal judicial

scrutiny quite limited, but some invasions of such rights—like those

based on color—were so unreasonable as to he impermissible. In this

respect, the views of these Republicans are similar to current law.

Denying Americans of African descent the right to testify and

bring court actions denies due process in its most basic sense—the

152

Id.

(statement of Rep. Wilson),

153

Id.

at 1833 (statement. of Rep. Lawrence).

154

Comi. GttmE, 39th Cong., 1st Sess. 1836 (1866) (statement

Rep. Lawrence).

155

Id.

(statement of Rep. Lawrence).

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

right to invoke the protection of the laws, a right long associated with

due process or its earlier equivalent, the law of the land clause of the

Magna Carta.'

In 1859, Congressman Bingham had objected to the

admission of the Oregon Territory as a state because its constitution

excluded free blacks from the state and denied them the right to sue

in the courts of the state. This, Bingham had insisted, violated the right

to "'privileges or immunities of citizens in the several states.' Not to

the rights and immunities of the several States, not to those constitu-

tional rights and immunities which result exclusively from State legis-

lation; but to 'all privileges and immunities' of citizens of the United

States in the several States."

157

As American citizens, the persons ex-

cluded from Oregon were entitled to "all the privileges and immunities

of citizens of the United States, amongst which are the rights to life,

liberty and property, and their due protection in the enjoyment thereof

by law."'

" Still, while Republicans made statements about federal power

to protect life, liberty and property, several suggested that for Congress

to define the right to testify or hold property, as opposed to prohibiting

discrimination in these matters, would invade the rights of the states.'

Speeches like those of Representative Lawrence, Senator Trum-

bull and Representative Wilson are often difficult to understand. These

men were lawyers, making a legal as well as a political case. But in

attempting to secure liberty and equality for Americans of African

descent, they faced difficulties. Some questions presented by the Civil

Rights Bill, Representative Wilson candidly noted, "are not entirely free

from difficulties. Precedents are in sharp conflict concerning them."

The old view of the semi-sovereign state, their own adherence to fed-

eralism and a mass of judicial precedent all raised obstacles which were

particularly acute with reference to property law, rules of evidence and

other matters traditionally within the sphere of the states. Precedent

also blocked the way for protecting Bill of Rights liberties against states.

Representative Lawrence relied on Article IV, Section 2 to establish the

equal rights to testify, contract, etc., rights he seems to relate to the

Due Process Clause. But he cited James Kent, who says that if citizens

"remove from one State to another they are entitled to the privileges

156

See id.

at 1292; CONG. Cri.oliE, 35th Cong,, 2d Sets. 984 (1859) (statement of Rep.

Bingham); Steven Heyman,

The First Duty of Government: Protection, Liberty and the Fourteenth

Amendment,

41 DUKE

U. 507, 558-59 (1991).

157

CONG. GLOBE, 35th Cong., 2d Sess. 984 (1859) (statement of Rep. Bingham).

158

See

id.

(tenement of Rep. Bingham).

See, e.g„

CONG. GLOBE,

39th Cong., 1st Sess. 1293 (1866) (statement of

Rep.

Shellabteger).

' Id. at 1115 (statement of Rep. Wilson).

December 1996]

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PRIVILEGES 01? IMMUNITIES CLAUSE



that persons of the same description are entitled to in the State to

which the removal is made."

161

The language from Kent raised poten-

tial problems for Lawrence. For example, might not color be within

Kent's qualification that a migrant was only afforded rights accorded

to people of the same description? Lawrence insisted that permissible

distinctions included age, sex and insanity, but not color. John Bing-

ham expressed similar ideas in his discussion of the prototype of the

Fourteenth Amendment, which allowed Congress to pass laws to secure

equal protection in life, liberty and property. Equal protection, Bing-

ham thought, was implicit in the Due Process Clause. Still, Bingham

assumed that the mass of state law property distinctions, including

those disadvantaging married women, could not be disturbed, but that

racial discrimination could be reached."

4. Confusion and Clarity

It is hardly surprising that the framers of the Fourteenth Amend-

ment did not fully resolve all these difficulties—protection against

discrimination for African-Americans, securing constitutional liberties

to all Americans that states could not abridge, preserving the role of

the states from total absorption by the federal government, and pro-

viding a neat explanation of how all this was to be done. They had

done quite a lot in a few years. They abolished slavery, secured a strong

measure of equality for Americans of African descent, and protected

some basic constitutional liberties from state denial. They left some

problems to the future—such as a theory of how the major objectives

could be accomplished consistent with their determination to protect

the basic role of the states with reference to many common law rights.

The neat explanation suggested by some scholars that Republicans

preserved federalism by fashioning the Privileges or Immunities Clause

to protect against discrimination but not to secure any "absolute" rights

that states could not abridge is one possible solution to the conun-

drum. But it is not one that fits the goals or statements of leading

members of the Thirty-Ninth Congress or that has strong support in

the historical record or in the text of the Fourteenth Amendment.

Lawyers and judges must address the problems of individual rights,

discrimination and federalism—recognizing that while many value

i Id.

at 1835 (statement or Rep. Lawrence).

ai2

See id.

(statement of Rep. Lawrence). For Bingham on property, due process and equal

protection, see

id.

at 1089 (statement

Rep. Bingham). For Stevens, see

id.

at 1064 (statement

of Rep. Stevens).

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[Vol.

38:1

choices have been made by the framers, a resolution of all tensions is

itself a value choice they did not make. There is no "only equality"

lowest common denominator for the Privileges or Immunities Clause

that accurately reflects the understanding of most of the framers. Nor

is there any interpretation that can easily reconcile all the views Re-

publicans expressed in the Thirty-Ninth Congress on questions such

as the right to contract and own property.

But while some things are quite murky, others are comparatively

clear. It is hardly surprising that immediately after the Civil War the

nation, guided by the Republican party, chose the liberty model of

the Constitution—federalism bounded by nationally guaranteed basic

rights plus a guarantee of equality—over the semi-sovereign state

model of a pro-slavery compact. Nor is it surprising that the Republi-

cans rejected the alternative of a unitary government with the states

immediately or potentially reduced to administrative units of the cen-

tral government. Nor is there any indication of a plan to vest federal

courts with generally supervisory power over all state social and eco-

nomic legislation. Both slavery and the extreme version of states' rights

were in bad repute after the carnage of the Civil War, and most

Republicans still saw an improved federal system as protecting liberty.'"

Arguments Against Application of the Bill of Rights to the

States—The Amendment as Only a Guarantee of Equality

There are three basic arguments against incorporation of the Bill

of Rights, and other guarantees of liberty, as limits on the states under

the Privileges or Immunities Clause.

L The Mere Equality or Anti-Discrimination Reading of the

Privileges or Immunities Clause: A Contextual Argument

The first argument is that the Privileges or Immunities Clause and

the Fourteenth Amendment were intended only to guarantee equality

in whatever basic rights a state chose to give or withhold. By this view,

states could abridge free speech so long as they did so equally for all.

The best argument for this position is one that relies on a contex-

tual argument plus precedent. The phrase "privileges and immunities"

appears in Article IV, Section 2. That clause, by the current orthodox

view and by a widely held view in 1866, merely guaranteed out-of-staters

163

See

id.

at 1825, 18311, 2526, app. at 144; CURTIS, No STATE SHALL AHRIDGE,

supra

note 3,

at 41.

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE

equality of fundamental interests with in-staters. Fundamental interests

are much broader than explicit constitutional guarantees of liberty and

include the right to pursue the common occupations of life, to contract

and to own property. By this proposed reading, the Privileges or Im-

munities Clause of the Fourteenth Amendment required equality in

fundamental interests and rights that had their source in state law. But

states could eliminate the rights so long as they did so for whites as

well as blacks.

Many Republicans rejected a mere equality reading of Article IV,

Section 2. These insisted on a reading of the original Privileges or

Immunities Clause much like the one I suggest as the proper reading

of the Fourteenth Amendment's Privileges or Immunities Clause—as

including privileges and immunities explicit in the text. Some also

apparently believed that the Privileges or Immunities Clause of Article

IV encompassed a larger and less textual body of fundamental rights

and interests belonging to citizens of the United States and which states

could not simply eliminate. Some emphasized that the Constitution

envisioned equality in basic state law rights to be enjoyed by all similarly

situated citizens, though not all agreed on the textual source of' the

right to equality. As to the state law rights to own property and to con-

tract, a measure of equality was required. As Representative Lawrence

put it, "equality of civil rights is the fundamental rule that pervades

the Constitution and controls all state authority."

164

Though sonic dis-

crimination in connection with such rights was permitted, discrimina-

tion based on race, national origin or religion was not.'"

164

CONG. GI,011E, 39th Cong., 1st Sess. 1836 (1866) (statement of Rep. Lawrence).

165

See id.

at 1835 (statement of Rep. Lawrence). On the issue of absolute and anti-discrimi-

nation rights, see CONu. GLOBE, '39th Cong., 1st Sess. 1629 (1866);

CONG.

GLOBE, 38th Cong., 1st

Sess. 1202, 2290, 1369 (1864); GONG. GLOBE, 35th Cong.. 241 Sess. 982-84 (1859).

See

Cr4.)sskey,

supra

note 62, at I 1-20; Curtis,

A Reply to Professor Berge?,

supra

note 3, at (10-64;

,see also

CONG.

GLOISF.,

39th Cong., 1st. Sess. 1832-35 (1866) (noting that Civil Rights Act left questions of

regulation of property

and

testimony to

suite

law "subject only to the limitation that there are

some inherent and inalienable rights, pertaining to every citizen, which cannot be abolished or

abridged by State constitutions or laws"). Many Republicans apparently interpreted Article IV,

Section 2 as guannueeing some absolute rights and

!nit

simply equality in rights stales chose 14)

allow to citizens.

See, e.g., CONG.

Gtoim, 39th Cong., 1st SOS. 1117-18 (1866) (statement of Rep.

Wilson). Wilson, however, emphasized that the Civil Rights Bill was aimed at guaranteeing equality

of rights to blacks.

Id.

(statement of Rep. Wilson). Some Congressmen, no doubt, 1

earl Article

IV, Section 2 more conventionally as limited to protection of out-of-staters from discrimination.

Senator Trumbull assumed that American citizens had absolute rights which states could not take

away, "the right to personal security, the right of personal liberty, arid the right to acquire and

enjoy property" and that "these [rights] are declared to be inalienable rights, he longing to every

citizen of the United States, as such, no matter where he mity be,"

Id.

at 1757 (statement or Sen.

Trumbull). Still, Trumbull also emphasized that "[Olds [Civil Rights] bill in no matter interferes

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By the "equality only" view, the Fourteenth Amendment's Privi-

leges or Immunities Clause guaranteed in-state citizens equality only

in those fundamental interests under Article IV, Section 2 which pre-

viously a state could not deny to out-of-staters if it granted them to its

own residents—such as the right to contract, own property and insti-

tute court

actions

in state courts. Equality, by this view, was secured to

those within the state. The state could deny rights provided it denied

them to all its residents.

I find this argument unsatisfactory as a full explanation of the

Fourteenth Amendment. Republicans were deeply concerned about

denials of free speech, both those before the Civil War and those they

saw recurring during Reconstruction. The orthodox reading of Article

with the municipal regulations of any State which protects all alike in the rights of person and

property. It could have no operation in ... most States of the Union."

Id.

at 176! (statement of

Sen. Trumbull). Representative Lawrence insisted:

Every citizen, therefore, has the absolute right to live, the right to personal security,

personal liberty, and the right to acquire and enjoy property. These are rights of

citizenship, As necessary incidents of these absolute rights, there are others, as the

right to make and enforce contracts, to purchase, hold, and enjoy property, and to

share the benefit of laws for the security of person and property.

Id.

at 1833 (statement of Rep. Lawrence). States could deprive citizens of these rights by prohibi-

tory laws or by failure to protect the citizen.

See

id.

(statement of Rep. Lawrence). The examples

of deprivations given by Lawrence included invidious class based discrimination, for example,

against naturalized citizens.

Id.

(statement of Rep. Lawrence). Lawrence suggested that the

question of direct national power to punish offenses against liberty was a question for another

day.

Id.

at 1835 (statement of Rep. Lawrence). He insisted that "Congress has the incidental power

to enforce and protect the equal enjoyment in the States of civil rights which are inherent in

national citizenship."

Id.

(statement of Rep. Lawrence). Lawrence read Article IV as protecting

some limdamental rights, though he cited a commentary indicating it secured "to citizens who

remove from one state

another . . . the privileges that persons of the same description are

entitled to in the State to which remora] is made."

Id.

(statement of Rep. Lawrence). Distinctions

of "sex, age, insanity, &c., arc recognized as modifying conditions and privileges, but mere race

or color, as among citizens, never can.'

Id.

(statement of Rep. Lawrence). Constitutional privileges

were of two kinds—"those that arose from state law and those ... inherent in every citizen of the

United States."

Id.

at 1836 (statement of Rep. Lawrence). Senator Trumbull denied that the Civil

Rights Bill consolidated power and took it from the states.

Id.

at 475-76 (statement of Sen.

Trumbull). It prohibited discrimination in the right to contract, hold property, etc. He admitted

that cases under Article IV, Section 2 related entirely to "rights a citizen in one State has in going

into another state, and not to the rights of citizens belonging to the State."

Id.

(statement of

Sen.

Trumbull). He insisted, however, that such rights were

a reasonable way of

ascertaining the right

to freedom secured to slaves under the Thirteenth Amendment.

Id.

at 600 (statement of Sen.

Trumbull).

short, he seems to

have believed that after the Thirteenth Amendment a state

could not secure fundamental interests of the Article [V, Section 2 sort to its own citizens but

deny them to blacks. The liberty of the Thirteenth Amendment secured the same sort of equality

to blacks that Article IV, Section 2 secured to out-of-staters. Today Article IV leaves states with

broad power to classify citizens even if those classifications affect fundamental interests. But the

classification can not be based on the fact that the person excluded from protection came from

out of state.

December 19961

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PRIVILEGES 01? IMMUNITIES CLAUSE



IV guaranteed equality in certain basic rights and interests to

classes of

persons—in-staters and out-of-staters. But a state, by the equality argu-

ment, could deny basic rights if it denied them to all residents of the

state also.

In the South, the ideal solution to the problem of speech about

slavery was compelled silence. Although the slave holding elite pre-

ferred that no one discuss the problem, the next best thing was to

punish antislavery expression. Those solutions, of course, treat in-stat-

ers and out-of-staters alike—no one can talk about the issue or engage

in antislavery speech. They also treat all in-state residents equally in

the sense that none can engage in the forbidden conduct. None can

engage in antislavery speech. Silencing antislavery speech is formally

equal for both whites and blacks—neither can attack slavery.

Of course, by another understanding, free speech could often he

squeezed into an anti-discrimination analysis. If one defines those who

want to talk about slavery and those who do not want any discussion

of slavery as the two classes, a general law prohibiting discussion of

slavery that applies to all citizens is in fact discriminatory. But the

primary Republican complaint was not simply about discrimination. It

was about the denial of the precious American right to free speech and

press.

2. A Second Textual and Contextual Argument: Reading "Abridge"

in Section 1 to Mean "Discriminate with Reference to." This

Reading is Allegedly Compatible with the Use of "Abridge" in

Section 2

The Fourteenth Amendment provides that no state shall abridge

the privileges or immunities of citizens of the United States.'

One

argument that could support a mere equality reading of the amend-

ment focuses on the words "abridge" and "privileges or immunities."

This argument is that "abridge" means only to discriminate with refer-

ence to race or caste. So, racial discrimination with reference to free

speech would be an abridgement, but, a generally applicable state

denial of free speech or infliction of cruel or unusual punishments

would not be an abridgment. A privilege or immunity by such a reading

is basically a right created by the state with respect to certain funda-

mentals: the right to contract, to own property, to freedom of move-

ment, etc. But the state, the argument goes, could eliminate the right

altogether. So, by this reading, what the Fourteenth Amendment is

U.S. Coms

r. amend. XIV, §

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[Vol. 38:1

really saying is that no state may discriminate on certain proscribed

bases with reference to certain fundamental matters which are other-

wise entirely within the control of the states. To the extent that this is

proposed as the exclusive reading of the word "abridge," it is a rather

odd way to read the words, "No state shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States."

A model of this meaning of "abridge," the argument could con-

tinue, would be the second section of the Fourteenth Amendment

which provides:

when the right to vote [for President or Vice President, Mem-

bers of Congress, state executives, judges, or legislators] .

is denied to any of the male inhabitants of such state [who

are United States citizens and twenty-one or older] .



any way abridged,

except for participation in rebellion, or

other crime, the basis of representation therein shall be re-

duced in the proportion which the number of such male citi-

zens shall bear to the whole number of male citizens twenty-

one years of age in such State.

167

The right to vote appears to be a "right whose substance is under

the states' control,"'" so this seems to be an example of a right the

state could totally abrogate but not "abridge."

The historical context of Section 2 provides the classic instance of

abridgment: restriction based on race .... The concept of abridg-

ment reflects the Republican notion of equality, which distinguishes

between laws that set out the content of rights and laws that take

rights away from a class of individuals. The Fourteenth Amend-

ment's concept of abridgement [sic] depends on the distinctions

between laws that define rights and laws that determine who shall

have them, such as a Black Code.'"

157

§

2 (emphasis added).

L65

Harrison, supra note 3, at 1420. Although 1 cite Mr. Harrison in connection with this

argument, the argument set out is not intended to be identical to the one that he makes. Mr.

Harrison's argument may amount to no more than saying a right may be diminished or abridged

when it conies from the state legislature and can be repealed by it, and that the reduction of (for

example) the right to contract for blacks would abridge the right. Rights like free speech that

come from the Federal Constitution and are not subject to state legislative repeal, could also be

abridged by caste legislation: one might give African-Americans more constricted free speech

rights than whites. In short an "absolute" right could be abridged by caste legislation as well as

by shrinking the right for everyone, as was the case with Southern laws passed before the Civil

War against anti-slavery speech.

169

Id.

at 1421.

December 1996]

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PRIVILEGES 01? IMMUNITIES CLAUSE

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It is worth noting some qualification to this insight. Since the

United States "shall guarantee to every State in this Union a Republi-

can form of Government,"

170

it is doubtful that the states were free to

take the right to vote away from everyone. Many Republicans in 1866

denied that states had such a right.

171

Nor was the penalty for abridging the right to vote under Section

2 triggered only by racial discrimination or

caste

legislation. If a state

denied African-American males the right to vote, the representation of

that state in the House would be reduced proportionally. In that case,

exclusion from the right to vote would be based on caste legislation.

But almost any other basis for exclusion, from illiteracy to property

qualifications to random selection, was penalized as well. States were

not left to regulate the right to vote free from penalty: almost all

limitations of manhood suffrage would trigger a penalty.

Nor is it clear that the penalty under Section 2 would not be

triggered by total elimination of the right to vote. Suppose that, for

example, a state abolished its state legislature and legislative elections.

Suppose, instead, it placed the legislative function with the President

of the state university who should choose "his" successor. There is a

powerful argument that the state would then lose its representation in

the House, because the right to vote has been denied to all males

twenty-one years of age and older. A penalty triggered by the denial of

the right to any seems triggered by the denial of the right to all. The

interpretation is inconvenient because it would mean that the demo-

cratic rights of 1866 were a floor below which states could not fall. It

is hard to evaluate as a matter of history because blatant violations of

Section 2 have been systemically ignored throughout American history.

But it is a natural reading of the text.

The term "abridge," in Section 2 then did not merely mean dis-

criminate in reference to caste. "Abridge," according to Senator

Howard, was simply an intensive form of the prohibition of any denial,

so the concept reached partial denials as well as total denials.

A State in the exercise of its sovereign power over the ques-

tion of suffrage might permit one person to vote for a mem-

ber of the State's Legislature, but prohibit the same person

from voting for a Representative in Congress. That would be

an abridgement [sic] of the right of suffrage; and that per-

" U.S. CoNsT. art. 1V, §

171

See, e.g.,

CONG.

Giamw, 39th Cong., 1st Sess. 2542 (1866) (statement of Rep. Bingham).

"[S]uffrage is a political right which has been left under the control of the several States, subject

to the action of Congress only when it becomes necessary to enforce the guarantee of a republican

form of government."

Id.

at 1117 (statement of Rep. Wilton).

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Wok. 118:1

son would be included in the exclusion, so that the repre-

sentation from the state would be reduced in proportion to

the exclusion of the persons whose rights were thus

abridged.'

Some African-Americans and whites might be permitted to vote

because they met an educational test that applied to all voters. Others,

unable to pass the test, might be excluded. In that case, the state would

be penalized by reduced representation only as to those blacks (and

whites) who could not vote because they could not pass the test. One

might see such an arrangement as defining the content of the right to

vote, a right limited by literacy, or as excluding certain individuals—the

illiterate.

Section 2 limits reduction of suffrage (a right created by state law

or by an interaction of state law and the Federal Constitution), to a

right specifically identified as the right to vote. As a general rule, to

remain free of the penalty of reduced representation, states could not

deny the right to males over twenty-one nor could they abridge the

right. "Abridge" meant reduce by almost any means, not just by caste

discrimination.

So in Section 2, as in the First Amendment, "abridge" meant

diminish or lessen. Such a meaning of "abridge" is consistent with an

absolute prohibition in Section 1 against state legislation that denied

or abridged liberties such as free speech. Differences in Sections 1 and

2 do not turn on different meanings of the word "abridge."

3. A Mere Equality Argument from History: Statements by Framers

and Arguments from the Civil Rights Act

A third mere equality argument against treating liberties in the

Bill of Rights as limiting the states is historical. By this view, the evil the

Privileges or Immunities Clause was designed to prohibit was discrimi-

nation against blacks in rights to contract, give evidence, own property,

etc.—the rights in the Civil Rights Act read narrowly. Section 1 of the

Fourteenth Amendment merely reiterated the protections of the Civil

Rights Act, narrowly understood.

Problems with the Argument Based on the Civil Rights Act

This argument ignores the catch-all phrase in the Civil Rights Act

giving all citizens "full and equal benefit of all laws and proceedings

/d.

at 2767 (statement of Sen. Howard).

December 19961

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PRIVILEGES

01? IA:Alwyn

.WS

CLAUSE



for the security of person and property, as is enjoyed by white citi-

zens."'" It fails to note that the phrase "laws for the security of person

and property" can be and often had been used to cover constitutional

liberties as well as common law or statutory rights. It had been used in

Dred Scott

and elsewhere as a shorthand summary of Bill of Rights

liberties.'

Framers of the Fourteenth Amendment cited Chancellor

Kent for the proposition that the inalienable rights of citizens included

the right to personal security, the right to personal liberty and the right

to acquire and enjoy property. Kent explicitly equated the right to

personal security and liberty with many guarantees included in bills of

rights, rights he describes as "privileges." For Kent, many of these rights

were enshrined in state law and in the Federal Constitution. In the

1827 edition of his

Commentaries,

Kent noted that "[t] he right of

personal security is guarded by provisions which have been transcribed

into the constitutions of this country from Magna Carta, and other

fundamental acts of the English Parliament, and it is enforced by

additional and more precise injunctions."'" Kent proceeded to list

guarantees such as grand jury indictment, the

protection

against dou-

ble jeopardy, the provision that no person shall be compelled to be

witness against himself, and the guarantees of speedy and public trial,

confrontation, compulsory process, right to counsel, and against ex

post facto laws. Kent explicitly noted the dual nature of laws and

provisions for the security of person: "[T] he personal security of every

citizen is protected from lawless violence, by the arm of government,

and the terrors of the penal code; and . . . it is equally guarded from

unjust and tyrannical proceedings on the part of government itself, by

the provisions to which we have referred."

176

The argument that the Civil Rights Act's guarantee of full and

equal benefit of all laws and proceedings for the security of person

42 U.S.C. § 1981 (1094).

174

Dred Scott,

60 U.S. at. 449-50; CuR

ris, No STATE

Sf1A1.1,

ABRIDGE,

,cupra

note 3, at 72. In

Dred Scott,

Taney noted that Congress could make no law respecting the establishment of religion

or prohibiting the free exercise thereof, or abridging the freedom of speech and of the press, or

the right to bear arms.

Dred Scott,

60 U.S. at 449. These powers, he said, limit the power of the

federal government over the "person or property" of the citizen:

'These powers, and others, in relation to rights of person . . . are in express and

positive terms, denied to the General Government; and the rights of private prop-

erty have been guarded with equal care. Thus the rights of property are united with

the rights of person, and placed on the same ground by the fifth amendment to

the Constitution, which provides that no person shall be deprived

life, liberty, or

property without due process of law.

Id.

at 450.

175

2 p.m Es KENT, COMMENTARIES ON AMERICAN

LAW,

9-11 (1827).

176

Id.

at l 1;

see CuNG.

Groux, 39th Cong., 1st Sess. 1117 (1866) (statement of Rep. Wilson)

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excludes the guarantees of the Bill of Rights and is limited to rights

under state law disregards the fact that many Republicans thought,

contrary to Barron v.

Baltimore,

that a correct reading of the Constitu-

tion made liberties in the Bill of Rights a limit on the states even before

passage of the Fourteenth Amendment.'

The argument for limiting

the Fourteenth Amendment to equality under state law also entirely

ignores the suppression of free speech and other civil liberties in the

South before the Civil War. And most of all, it misses the fact that

virtually identical language appeared in the Freedman's Bureau Bill

and that an amendment adding "including the constitutional right of

bearing arms" to "full ... benefit of laws for the security of person and

property" was accepted by Senator Trumbull, the sponsor of the bill,

with the remark that it did not change the meaning of the phrase.

178

The point is simply this: we know that many Republicans thought

that under the proper construction of the Federal Constitution states

were or should be limited by the provisions of the Federal Bill

Rights. We know that Bill of Rights liberties were often described as

provisions for the security of person and property. At the very least, for

many Republicans, references to full protection under laws for the

security of persons and property would include Bill of Rights liberties.

For example, Senator Dixon, a Republican from Connecticut who

eventually broke with the party over its failure to more promptly re-

store the rebellious states, said:

One Congress cannot bring about the millennium . . . For

this time we have reason to be content; for we have put down

armed resistance to the laws, and Congress has given us, in

the civil rights act, a guarantee for free speech in every part

of the Union. It is our own fault if, having thus secured the

right to argue, we do not enlighten prejudice and mere op-

position, and show that equal liberty is the best for all.

179

(citing 1

JAMES

KENT, COMMENTARIES ON AMERICAN LAW, 199):

id.

at 1757 (statement of Sen,

Trumbull) (also citing Chancellor Kent); Robert Kaczorowski,

Revolutionary Constitutionalism in

the Era of the Civil

War

and Reconstruction,

61 N.V.U. L. REv. 863, 923, 932 (1986).

177

See

CURTIS,

No STATESUIALL ABRIDGE,

Supra

note 3, at 49-56;

see also

21 Hum, LAw

FREEDOM AND BONDAGE IN THE UNITED STATES 292, 342, 352-53 (photo. reprint 1968) (1858-

62); Kaciorowski,

supra

note 174, at 932.

See

Cuwris, No STATE SHALL AtutinGE,

supra

note 3, at 72, 104.

175

CONC. Gt.ottE, 39th Cong., 1st Sess. 2332 (1866) (statement of Sen. Dixon);

cf id. al

2465

(statement of Rep. 'Mayer);

id. at 2468 (statement of Rep. Kelly) (suggesting that provisions of

Section 1—which include requiring states to accord due process—may already be in Constitu-

tion);

td.

at 2539 (statement of Rep. Farnsworth) (suggesting that all provisions in Section 1

except equal protection are in Constitution already, which would include Due Process Clause as

a limit On states).

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



It is a mistake to assume that Republicans would understand the

phrase "security of person and property" as limited to common law

and statutory rights under state law or even to such rights plus state

constitutional rights. Furthermore, it is incorrect to interpret the

phrase to exclude federal rights including those in the Bill of Rights.

Of course, to enforce limits on the states based on the Federal Bill

of Rights required a constitutional amendment, as John Bingham

never tired of pointing out.

Finally, the historical argument based on the Civil Rights Act

points out that some congressmen said that the Act covered the ground

of Section 1. From such evidence, Lambert Gingras argued that while

key framers intended to apply the guarantees of the Bill of Rights to

the states, their purpose was not generally understood by their con-

gressional colleagues or by the ratifiers.

140

Lambert Gingras,

Congressional Misunderstandings and the Ratifiers' Understanding: The

Case of the Fourteenth Amendment,

XL Am. J. LEGAL HIS T.

41 (1996). Mr. Gingras cites statements

from Congressmen Wilson, Thayer, Windom and Raymond indicating that the Civil Rights Bill

guaranteed equality and indicating that the Fourteenth Amendment incorporated the Civil Rights

Bill.

Id,

at 56-60.

At least Wilson and Thayer believed the states were already required to obey

guarantees of the Bill of Rights. Mr. Gingras points out that Wilson read the word "immunity" as

a guarantee of equality.

Id.

at 57. He believes several scholars supporting incorporation (including

myself) have distorted meaning by omitting important sentences. For example, he says, "No take

another example, note how Curtis quotes a speech delivered on February 28, 1866, by Repre-

sentative Frederick Woodbridge."

Id.

at 52.

this point, I include the full quote, putting the

sentence I omitted in italics,

What is the object of the proposed amendment? It merely gives the power to

Congress

enact those laws which will give to a citizen of the United States the

natural rights which necessarily pertain to citizenship. It is intended to enable

Congress by its enactments when necessary to give to a citizen of the United States

in whatever State he may be, those privileges and immunities which are guaranteed

to him under the Constitution of the United States. It is intended in enable

Congress to give to all citizens the inalienable rights of life and liberty,

and to every

citizen in whatever State he may he that protection of his property which is extended to

citizens of the State.

CONG. GLonE, 39th Cong., 1st Sess. 1088 (1866) (statement of Rep. Woodbridge). To me the

passage (from a debate on a prototype of Section 1) seems to indicate both congressional

protection for both constitutional rights and equality under state law for protection of property.

That makes quotation on the first point appropriate. That equal protection for property for blacks

was also secured is not controversial, although some modern scholars locate the protection

against racial discrimination and property rights in the Privileges or Immunities Clause. At any

rate, the reader may reach his or her own conclusion. Thaddeus Stevens said the claim that the

Rill and the Amendment. covered the same ground was only partly true and that a bill was

repealable by a majority. CONG. GLotiE, 39th Cong., 1st Sess. 2459 (1866). Fessenden said that in

the Joint Committee the Fourteenth Amendment was placed on entirely different ground from

the Civil Rights Bill.

Id. at

2896. The equality argument appears in two forms. One suggests the

Fourteenth Amendment Privileges or Immunities Clause only guaranteed equality in certain

privileges secured by state law, Another

suggests

that such an equality meaning was at least part

the meaning

the

Privileges or Immunities Clause, but that the Clause also secured some

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From statements about correspondence or identity between the

Civil Rights Act and the Fourteenth Amendment, the reader is ex-

pected to read the Civil Rights Act as failing to include any of the

guarantees of the Bill of Rights.'

' But for many Republicans who

thought Bill of Rights guarantees already limited the states, the Civil

Rights Act's guarantee of full benefit of laws for the security of person

and property would have encompassed the provisions in the Bill of

Rights. Because the Civil Rights Act included

none

of the guarantees

of the Bill of Rights, the argument goes, neither did the Fourteenth

Amendment.

But if the Civil Rights Act was the

exact

equivalent of Section 1,

then somehow the Civil Rights Act included a prohibition of state

denial of a federal standard of due process. The general phrase of the

Civil Rights Act could include due process easily enough. Due process,

after all, is simply a law or provision for the security of person and

property. It requires more than equality under state law. But if one Bill

of Rights guarantee meets this definition, why don't the rest? If the rest

do, then the argument from the Civil Rights Bill against finding fun-

damental rights in the Fourteenth Amendment self-destructs.

Nor is it likely that most literally believed the Civil Rights Act and

the Fourteenth Amendment were entirely identical. The Act only pro-

tected citizens while Section 1 protects both citizens—as to privileges

or immunities—and persons—as to due process and equal protec-

tion.

182

Finally, as Dean Aviam Soifer has noted, the Civil Rights Bill

refers to

"full

and equal benefit of all laws and proceedings for security

of person and property."

183

A state law which prohibited public meet-

ings of more than 100 people within a state would give state citizens

equal benefit of the laws, including constitutional provisions, but

would not give them full benefit of the right to free speech and

absolute national privileges from violation by the states.

See

Harrison,

supra

note 3, at 1465.

Harrison is apparently unsure whether these absolute guarantees actually imposed any new limits

on the states.

Id.

at 1465.

181

See, e.g.,

CoNG.

GLOBE,

39th Cong., 1st Sess. 2883 (1866) (statement of Latham) ("[T)he

'civil rights bill' which is now law ... covers exactly the same ground as this amendment. . . .").

If the two are exactly the same, then the Civil Rights Act prohibited states from denying any

person due process of law.

see also

Harrison,

supra

note 3, at 1465 n.304.

" CONG. GLOBE,

39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham).

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necessarily pertain to citizenship. It is intended to enable

Congress by its enactments . . . to give to a citizen of the

United States those privileges and immunities which are guar-

antied to him under the Constitution of the United States. It

is intended to enable Congress to give to all citizens the

inalienable rights of life and liberty,

and

to every citizen in

whatever State he may be that protection to his property

which is extended to the other citizens of the State.

Sir, is there anything anti-republican in this? . . . Is there

anything that interferes with the sovereign power of a State

that adheres to a republican form of government? Is there

not rather in this a tendency to keep the States within their

orbits and insure and secure forever to every citizen a repub-

lican form of government? There is nothing more . . . in this

proposition.

It does not destroy the sovereignty of a State,

such a thing

exists.

It does not even affect its sovereign rights, but

merely

keeps whatever sovereignty it may have in harmony with a repub-

lican form of government and the Constitution of the country.'"

The context of Woodbridge's remarks is widened by looking at

contemporary usage of the phrases "republican form of govern-

ment" and "privileges and immunities." Leading Republicans in-

sisted that a republican government required states to respect rights

set out in the Federal Bill of Rights.'

They read the words "privi-

leges or immunities" as including Bill of Rights liberties.'

The remarks by Representative Hale about the importance of the

states' liberties also allegedly support Republican unwillingness to have

states limited by "absolute" guarantees of liberty as opposed to guaran-

tees of equality.

" Hale spoke in the context of Bingham's prototype

that allowed Congress to secure to all citizens equal protection

in the

rights to life, liberty and property.

Hale's objections to this proposal

related to congressional power to control the ordinary civil law of the

states. He gave as an example the danger that Congress could,

under

Bingham's prototype, grant equal property rights to married women.

200

Hale considered such a change a serious violation of federalism. Con-

196

Id.

at 1088 (statement of Rep. Woodbridge) (emphasis added).

197

See, e.g., id.

at 1629 (statement of Rep. Hart);

id.

at 1075 (statement of Sen. Nye).

198

See, e.g.,

CONG. GLOBE,

38th Cong., 1st Sess. 1202 (1864) (statement of Rep. Wilson);

id.

at 2765 (statement of Sen. Howard).

199

See

NELSON,

supra note 3, at 115.

291

CONG. GLOBE, 39th Cong., 1st Sess. 1064 (1866) (statement of Rep. Hale).

December 1996]



PR/V./LIEGES

IMMUNITIES CLAUSE



gressmen Stevens did not agree that the provision allowing Congress

to secure equal protection in the rights of life, liberty and property

might allow Congress to secure equality as to property ownership to

women, as well as blacks. He seems to have believed the equal protec-

tion power was limited to unreasonable classifications like race, and

Stevens viewed the gender classification as reasonable.

"' The cited

Hale speech actually shows that Hale's concern was not about absolute

Bill of Rights liberties limiting the states, but was about congressional

power to legislate on equality with reference to ordinary state civil law

matters. While Hale was concerned about new legislative power being

given to Congress, he was not disturbed that states would have to obey

the "absolute" requirements of the Bill of Rights. Hale thought that

the Bill of Rights

already

limited federal, state and local government.

He insisted that courts would enforce the Bill of Rights, and nothing

more was required.

212

John Bingham cited

Barron v. Baltimore

to Hale

to prove that he was wrong in assuming that the liberties of the citizen

were adequately protected by the existing Constitution as interpreted

by the Court.'"

The objections by Hale actually prove that his concern was differ-

ent from the supposed Republican limited equality position. He was

upset about guarantees of equality under an equal protection provision

that he thought granted general legislative power over ordinary sub-

jects of state civil law; he was not at all concerned with the idea that

states should be required to obey the limits set out in the Federal Bill

of Rights because he thought that was already the law.

Further support for the mere equality argument is allegedly found

in a statement of Congressman Bingham, the main author of Section

Congressman Bingham is quoted as saying the amendment took

"from no State any right that pertained to it."

Once again, the

context gives a different impression. The amendment, Bingham in-

sisted, provided:

[T]he power in the people, the whole people of the United

States, by express authority of the Constitution to do that by

congressional enactment which hitherto they have not had

the power to do, and have never even attempted to do; that

is, to protect by national law the privileges and immunities of

all the citizens of the Republic and the inborn rights of every

201

Id. (statement

of Rep. Stevens).

202

Id.

at 1064-65 (statement of Rep. Hale);

see Orosskcy, supra

note 62, at 32-33.

205

CONG.

GLOBE, 39th Cong., 1st Sess. 1089-90 (1866) (statement of Rep. Bingham).

201

See

NELSON,

SION/

note 3, at 115 n.14.

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person within its jurisdiction whenever the same shall be

abridged or denied by the unconstitutional acts of any State.

Allow me, Mr. Speaker, in passing to say that this amend-

ment takes from no state any right that ever pertained to it.

No State ever had the right, under forms of law or otherwise,

to deny any freeman the equal protection of the laws or to

abridge the privileges or immunities of any citizen of the

Republic, although many of them have assumed and exer-

cised that power, and that without remedy.

205

Bingham did not accept a positivist view of law. He distinguished

between the rights states had and the power they were allowed to

exercise. The statement is consistent with Bingham's view that states

were obligated to respect fundamental rights including Bill of

Rights liberties, but that under the Constitution as interpreted the

obligation was unenforceable.'"" Bingham had earlier cited

Barron

v. Baltimore,

a case holding that the Bill of Rights does not limit the

states, to support his claim of the need for an earlier version of the

amendment.

207

His speech on the final version of the Fourteenth

Amendment also referred to liberties in the Bill of Rights. The

amendment was necessary, Bingham said, because of "flagrant vio-

lations of the guaranteed privileges of citizens of the United States"

such as "cruel and unusual punishments" that had been inflicted

under state

law.

218

Congressman Lawrence is also cited in recent scholarship for the

proposition that Section 1 would not impair state sovereignty. He is

cited again in support of the claim that the Fourteenth Amendment.

provided no absolute rights. In Lawrence's case, the citations are to his

discussion of the Civil Rights Bill.

209

Lawrence noted that the Civil

Rights Bill provided that all citizens would have the same rights to

contract, sue, give evidence, and have full and equal benefit of all laws

and proceedings for the security of person and property. The bill,

Lawrence con tin tied,

does not declare who shall or shall not have the right to sue,

give evidence, inherit, purchase, and sell property. These

questions are left to the States to determine

subject only to the

limitation that there are some inalienable rights, pertaining to

" CONG. GLOI•,

39th Cong., 1st Sess. 2542 (1866) (statement of Rep. Bingham).

206

Id. at

1090 (statement of Rep. Bingham).

"Id. at 1089-90 (statement of Rep. Bingham).

Id.

2542 (statement of Rep. Bingham).

2()9

See

NELSON,

supra

note 3, at 115 n.13.

December 1996]

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PRIVILEGES OR IMMUNITIES GLA USE



every citizen, which cannot be abolished or abridged by Slate con-

stitutions or laws.

Legislative power existed "to protect, not to destroy, the inalienable

rights of men." Citizens had "absolute rights," including the Fifth

Amendment guarantee of clue process. "Without further authority

I may assume, then, that there are certain absolute rights which

pertain to every citizen which are inherent, and of which a state

cannot constitutionally deprive him."'"

Congressman Lawrence's statement also refutes the claim it is

cited to support: that subjecting states to "absolute" Bill of Rights

liberties was incompatible with state sovereignty. Lawrence was consis-

tent in his view that the Fourteenth Amendment imposed "absolute"

limits on state power and required states to obey Bill of Rights guaran-

tees "absolutely." Speaking in 1871, he insisted that the Due Process

Clause and the Privileges or Immunities Clause both required states to

provide civil jury trials in eminent domain proceedings.

212

A major shortcoming in the mere equality argument is its assump-

tion that "[p]rior to the drafting of the Fourteenth Amendment, no

one doubted that states could legislate to restrict rights granted by God

or inherent in the nature of a free society."

213

In a sense the statement

is true. But in fact, many Republicans assumed that states were already

required to respect the fundamental rights of American citizens prior

to the drafting of the Fourteenth Amendment, though for some the

constitutional obligation was not enforceable.

" "Freedom of religious

opinion, freedom of speech and press, and the right of assemblage for

the purpose of petition belong to every American citizen, high or low,

rich or poor, wherever he may be within the jurisdiction of the United

States," said Representative James Wilson in 1864.

'' "With these rights

no state may interfere without breach of the bond which holds the

Union together."

216

Two years later, in 1866, Wilson was Chairman of

the Judiciary Committee in the 39th Congress.

211

' CONG. GLOBE,

39th Cong., 1st Sess. 1832 (1866) (statement of Rep. Lawrence) (emphasis

added). Mr. Harrison relics on Professor Nelson's work. Harrison,

supra

time 3, at 1412 & n,102.

211

CONG.

Gt.oRE, 39th Cong., 1st Sess. 1833 (1866) (statement of Rep. Lawrence).

212

2 CONG. REG.

384-85 (1871)

(statementr Rep,

o. Lawrence). Lawrence continued to

adhere to the view that the Seventh Amendment, properly interpreted, would have limited the

states prior to the passage o1 the Fourteenth

Antentlifient.

212 NELSON,

supra

note 3, at 1

15.

See

CONG. GLOBE,

39th

Cong., 1st Sess. 1152, 1270 (1866) (statement of Rep. Thayer);

CONG,. GLoisE, 38th Cong., 1st Sess. 1202 (1864) (statement of Rep. Wilson);

id.

at 2290 (statement

of Rep. Ingersoll) (showing little sympathy for free speech claims by supporters of

"rebels");

CONG.

GLOBE,

35th Cong., 2d Sess. 982-84 (1859) (statement of Rep. Bingham).

212

CONG. GLOBE,

38th

Cong., 1st Sess. 1202 (1864) (statement of Rep. Wilson).

216

Id.

(statement of Rep. Wilson).

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[Vol. 38:1

The claim that Republicans were willing to require states to treat

citizens equally as to certain fundamental interests to contract, own

property, etc., but found it intolerable that they should, for example,

be required to obey absolute rights like those in the Bill of Rights, is

refuted by the statements marshalled as prologue and support for the

argument.

In 1871 Bingham explained that he followed Chief Justice Mar-

shall's suggestion in

Barron v. Baltimore.

Marshall had said that if the

framers had intended Bill of Rights guarantees to limit the states, they

would have followed the example of the framers of the original Con-

stitution and used the "no state shall" language of Article I, Section 10.

So "imitating their example and imitating it to the letter," Bingham

said, In] o state shall make or enforce any law which shall abridge the

privileges or immunities of the citizens of the United States."

217

Those

privileges and immunities, Bingham said, "are chiefly defined in the

first eight amendments to the Constitution."

's He then read word for

word each of the first eight amendments.

219

Sir, before the ratification of the fourteenth amendment, the

State could deny to any citizen the right to trial by jury, and

it was done. Before that the State could abridge the freedom

of the press, and it was so done in half the States of the Union

. . . [B]y the force of the fourteenth amendment no State

hereafter . can . . . ever repeat the example of Georgia and

send men to the penitentiary, as did that State, for teaching

the Indian to read the lessons of the New Testament . . . .

220

In his speech on the final version of the Fourteenth Amendment,

Bingham said the Amendment made it possible to protect "by national

law the privileges and immunities of all citizens of the Republic and

the inborn rights of every person within its jurisdiction whenever the

same shall be abridged or denied by the unconstitutional acts of any

State."

' The amendment protected citizen and stranger from uncon-

stitutional state enactments.

222

Senator Howard indicated the Privileges or Immunities Clause was

two-fold. It protected the type of fundamental interests described in

CoNG. GLotm, 42d Cong., 1st Sess, app. at 84 (1871) (statement of Rep. Bingham).

21K

Id.

(statement of Rep. Bingham).

Id.

(statement of Rep. Bingham).

Id.

(statement of Rep. Bingham). By 1871, Bingham seems to have bowed to Supreme

Court interpretation and to have abandoned his abolitionist reading of the original Privileges

and Immunities Clause.

See id.

(statement of Rep. Bingham).

221

GONG. GLOBE, 39th Cong., 1st Sess. 2542-43 (1866) (statement of Rep. Bingham).

2'22

See

id.

(statement of Rep. Bingham).

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE

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Corfield v. Coryel1

223

and provided absolute protection for "the personal

rights guarantied [sic] and secured by the first eight amendments of

the Constitution" such as "freedom of speech and of the press; the

right of the people peaceably to assemble and petition the Government

for a redress of grievances ... the right to keep and to bear arms . .

the right to be exempt from unreasonable searches and seizures . .

[the] right [of the accused] to be tried by an impartial jury" etc.224

[These rights] do not operate in the slightest degree as a

restraint or prohibition upon State legislation. States are not

affected by them, and it has been repeatedly held that the

restriction contained in the Constitution

against

the taking

[of] private property for public use without just compensa-

tion [a reference to

Barron]

is not a restriction upon State

legislation, but applies only to the legislation of Congress ....

The great object of the first section of this amendment is,

therefore, to restrain the power of the States and compel

them

all times to respect these great fundamental guaran-

tees.

225

These statements are a problem for the nothing-hut-equality argu-

ment. One response deals with the problem head on. American states,

the argument goes, in their state constitutions provided their citizens

with most of the protections contained in the Bill of Rights including

those mentioned by Jacob Howard in his presentation of the Four-

teenth Amendment to the Senate.

226

But the southern states and a few

others "had failed to give the rights to their black citizens."

227

Section

1, read only as securing equality, would allow Congress to legislate

equality with respect to state constitutional guarantees "and thus en-

able Bingham to declare that Congress would have power to enforce

the Bill of Rights."

228

Under Section 1 a state could still, by the recon-

structed Bingham-Howard view, abrogate Bill of Rights protections so

long as it did so for all its citizens. The amendment, the argument

insists, did not impose the specific guarantees of the Bill of Rights on

the states.

229

Senator Howard, Congressman Bingham and most who spoke in

the 39th Congress, however, had absolute protection for liberty plus

223

6 F. Cas. 546 (C.C. Wash. 1823) (No. 3230).

224

CONG. Gum, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard).

225

Id.

at 2765-66 (statement of Sen. Howard).

226

See NELsoN, supra

note 3, at 118-19; Harrison, supra note 3, at 1465 n.304.

227

NELSON, ,supra

note 3, at 118.

Id. at 118-19.

229

See id.

at 118;

cf.

Harrison,

supra

note 3, at 1465.

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[Vol.

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equality in mind. Howard read the privileges and immunities of citi-

zens of the United States to include the rights in the Federal Bill of

Rights, "the first. eight amendments of the Constitution," as he put it.

Howard explained that the problem was that "these rights"—most of

which he read or paraphrased from the Federal Bill of Rights—did not

limit state legislation.

' States could violate the rights without any

restraint "except by their own constitutions which may be changed

from year to year-"!

The great object of Section l was to require the

states

"at all

times

to respect these

great

fundamental guarantees."

233

The object was to protect these guarantees from being abridged by the

states, not to ensure that abrogation of them would apply to all citizens.

Like Howard, Bingham and others read the Privileges or Immunities

Clause to protect national rights including those in the Bill of Rights.

A mere equality approach replaces substantial liberty with formal-

ism. By the mere equality argument, a state that abrogated the right

to jury trial for all its citizens would not violate Section 1. If the state

bans all publications with the bad tendency to produce evil results, for

example, it does not seem to have offended the equality rationale. If

it prohibits all residential political signs, eliminates the public forum,

or prohibits all persons from going door to door for political causes,

it does not seem to have violated the equality rule—and certainly not

one that merely forbids discrimination based on caste or race. The Due

Process Clause itself seems to belie the suggestion that the Fourteenth

Amendment was merely an equality provision. As a mere equality

provision, the Due Process Clause would mean that states could not

provide different processes, for example, based on color or caste, but

any process generally applied would be sufficient. Generality is one

aspect of due process—that the same law applies to all and that deci-

sions are made according to law, not whim—but it is only one aspect.

As Daniel Webster said in the most widely quoted pre-Civil War defini-

tion of law of the land under Magna Carta (the equivalent of due

process):

By law of the land is most clearly intended, the general law;

a law, which hears before it condemns; which proceeds upon

inquiry, and renders judgment only after trial. The meaning

is, that every citizen shall hold his life, liberty, property and

230

CONG. GI.OBE,

39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard).

231

Id.

at 2765-66 (statement of Sen. Howard).

192

Id.

(statement of Sen. Howard).

Id.

(statement of Sen. Howard).

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



immunities, under the protection of the general rules which

govern society.

234

4. A Very Technical Argument About Rights of American Citizens

A third argument against applying Bill of Rights and other consti-

tutional liberties to the states under the Fourteenth Amendment is

technical. Americans may have thought that the Constitution guaran-

teed them freedom of speech or protection from unreasonable

searches, but that is not the case. Actually, Americans had no federal

constitutional right to free speech at all. They had simply a positive

prohibition that the federal government would not abridge free speech

or engage in unreasonable searches. The Fourteenth Amendment

could not secure such rights against state denial by forbidding states

from abridging privileges or immunities, because no such privileges of

citizens of the United States existed. The discussion above about the

declaratory nature of Bill of Rights guarantees is one response to this

argument.

235

A second response is to ask whether such technical argu-

ments are appropriately directed against protections of liberty which

should be generously interpreted.

236

Should constructions designed to

restrict guarantees of liberty be permitted to defeat popular under-

standing in a system allegedly justified by popular sovereignty?

The argument concedes that some Republicans were determined

to secure absolute protection for Bill of Rights liberties, but, it tells us,

if Republicans had such plans they used the wrong words. So, when in

the Fourteenth Amendment Republicans protected the absolute privi-

leges of Americans against state denial, they really protected only those

federal constitutional privileges already protected against state denial.

That is because, the argument insists, the privileges of citizens of the

United States must be read not as a reference to the right referred to,

but the right must be read as limited by the scope of protection

accorded by the Constitution before the Fourteenth Amendment.

257

Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 581 (1819); Heyman,

supra

note 156,

at 559.

235

See supra

notes 72-88 and accompanying text;

see atso

United States v. Cruiks hank, 92 U.S.

542,551,55'3 (1875) (where the declaratory nature oldie rights did not prevent them from acting

as an effective limit on the federal government).

See

Boyd v. United States, 116 U.S. 616 (1886) (finding that guarantees of liberty should

be liberally construed and that strict, narrow, and technical constructions should be avoided).

Boyd

has been departed from both as to its holding and as to this proposition.

See, e.g., Fisher v.

United States, 425 U.S. 391,407-09 (1976).

John

Harrison nicely sets this out as one of two possible readings. Harrison,

supra note

3, at 1465-66.

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[Vol. 38:1

This is a very odd way to read a guarantee designed to take existing

privileges and expand the scope of the protection with reference to

them. For example, the Fifth Amendment contains a provision that

"no person . . . shall be . . . deprived of life, liberty, or property, without

due process of law."

238

The Fourteenth Amendment provides "nor shall

any state deprive any person of life, liberty, or property, without due

process of law."

`I The right is virtually the same as that referred to in

the Fifth Amendment. What is added is new scope for the protection

accorded to it. A privilege from the Fifth Amendment is protected

against state action in the Fourteenth by use of the "[n]t) state shall"

formula. In the Privileges or Immunities Clause a similar operation has

occurred, except that the rights to be protected by the clause have

been referred to by the word "privileges" instead of quoting all the

constitutionally guaranteed privileges. Such a list would be quite long

and would include, at least, Bill of Rights guarantees, guarantees in the

original Constitution, and, now, rights added after the Fourteenth

Amendment. The "In] o state shall" language expands the scope of the

protection that previously existed for these privileges.

In light of the violations of civil liberties by the states before the

Civil War, a wide Republican consensus that such violations infringed

what should be rights of American citizens, the text of the Bill of Rights

that assumed Americans had such rights, and statements by leading

proponents that the amendment would require the states to obey the

federal Bill of Rights, to hold privileges and immunities such as free

speech and press unprotected is strict construction with a vengeance.

It ignores the rule of construction urged by some decisions, but now

apparently badly out of fashion, that guarantees of liberty should be

liberally construed.

Some argue Section 1 protects only some Bill of Rights liberties—

those that are fundamental or correspond to natural rights. These

rights could include free speech, press, and freedom of religion. James

Madison implies that some Bill of Rights liberties secure natural rights;

others, like jury trial, he says, were essential to protect natural rights.

240

Both the Levellers, who were at the libertarian end of the spectrum,

and Thomas Hobbes, who was at the statist end, agreed that the

privilege against self-incrimination was a natural right.

' Fundamental

238

U.S. CONST. amend. V.

239

Id.

amend. XIV, § 1.

240

See

2 THE Btu, OF RIGHTS,

4upra

note 22, at 1029.

241

THOMAS HOBBES, LEVIATHAN (Everyman ed., 1914) (1651),

JURISPRUDENCE:

TEXT AND

READINGS ON THE PHILOSOPHY OE I.Aw 414 (George C. Christie and Patrick H. Martin eds., 1995);

,JOHN LILRURNE,

A WORKE OF THE BEAST (1638),

reprinted in

2 TRACTS ON LIBERTY IN THE

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



or natural rights formulations could include many basic Bill of Rights

liberties.

Advocates of total incorporation of Bill of Rights liberties as limits

on the states, those who argue for selective application, and opponents

of any application read the historical record in different ways. They

place different interpretations on contemporary general descriptions

of what the amendment would do. Supporters of the amendment said

it would protect all rights of citizens or all constitutional rights.

242

Opponents of application can point out, correctly, that if one disre-

gards these general statements as too general to be of much use, and

disregards statements that focus on particular guarantees like free

speech as too specific to indicate general incorporation, then there are

few statements saying the amendment will require states to obey the

Bill of Rights. Those who advocate substantial or total incorporation

read the general descriptions of what the Fourteenth Amendment will

do in light of a broadly held Republican view that privileges and

immunities in the Bill of Rights were liberties of American citizens that

limited or should limit the states even prior to the passage of the

Fourteenth Amendment. Some, like Congressman Bingham, believed

the guarantees were morally binding but legally unenforceable, an

interpretation that paralleled the way the Court had read some guar-

antees of Article IV.

Conclusion to Part II

The Fourteenth Amendment was designed and should be under-

stood to protect fundamental constitutional rights, including those in

PURITAN REVOLUTION

1638-47,

at 3, 7-8 (William Haller ed., 1934); Curtis,

The Levellers, supra

note 26, at

362.

542

See Cow:.

GLonE, 39th Cong., 1st Sess, 741, 868, 1032, 1586 (1866) (stating goals as to

what. new amendment should do);

id.

at 2542 (noting that amendment would allow Congress to

protect by national law all privileges and immunities of citizens when they are denied by uncon-

stitutional act of any state);

id.

(statement of Rep. Bingham) (mentioning specifically cruel and

unusual punishments); id.

at 3167 (statement of Rep. Windom) (suggesting that amendment will

protect all the rights of citizenship");

id.

at 3201 (statement of Rep. Orth) (stating that all rights

of American citizenship would he protected);

id.

at app. 255-56 (statement of Rep. Baker) (stating

that amendment would protect citizen in rights thrown around him by supreme law of land);

id.

at 3038 (statement of Sen. Yates) (saying rights of citizens shall not be abridged by any state);

see

N.Y. DA

ti,v Dux., Sept.

1866, at A col. 4 (quoting Andrew Hamilton at Southern Loyalist

Convention, referring to "Constitutional rights of every citizen" and "rights of citizen enumerated

in the Constitution" in call for convention of Southern loyalists);

see also

SPRINGFIELD DAILY 11,L.

ST.

J.,

Sept. 21, 1866, at 2 col. 6 (referring to "constitutional rights" and making specific reference

to free speech).

See generally

CURTIS,

No STATE SHALL. ABRIDGE,

supra

note 3, at 131-53.

'415

Kentucky v. Dennison, 65 U.S. 66 (1861); CoNG. CLOISE, 39th Cong., 1st Sess. 1034 (1866)

(statement of Rep. Bingham).

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{Vol.

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the Bill of Rights, from state denial. That is the best reading of the

Fourteenth Amendment based on text, context, history, policy, and

structure.

What about rights less explicit in the text, particularly those inter-

ests deemed fundamental for Article IV, Section 2 interstate privileges

and immunities purposes—rights to contract, to own property, etc.? To

the extent that equality in such interests is protected under privileges

and immunities secured in Article IV, Section 2 or by a structural

reacting of the rights of Americans, equality in such rights would be

one privilege of American citizens. Various views appear in the debates.

In addition to racial classifications, other equally invidious ones, like

national origin and religion, would be prohibited

the Equal Protection

Clause.

As to the broader Article 1V group of basic common law interests

as absolute or relative privileges or immunities within the Fourteenth

Amendment, Senator Howard says:

[W]e may gather some intimation of what probably will be

the opinion of the judiciary by referring to a case adjudged

many years ago in one of the circuit courts of the United

States by judge Washington; and I will trouble the Senate but

for a moment by reading what that very learned and excellent

judge says about these privileges and immunities of the citi-

zens of each State in the several States. It is the case of

Garfield

v. Coryell,

found in 4 Washington's Circuit Court Reports,

page 380. Judge Washington says: "The next question is

whether this act infringes that section of the Constitution

which declares that the citizens of each State shall be entitled

to all privileges and immunities of citizens in the several

States? The inquiry is, what are the privileges and immunities

of citizens in the several States? We feel no hesitation in

confining these expressions to those privileges and immuni-

ties 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. What these fundamental

principles are it would, perhaps, be more tedious than

difficult to enumerate. They may, however, be all compre-

hended 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

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



and obtain happiness and safety, subject nevertheless to such

restraint as the Government may justly prescribe for the gen-

eral good of the whole. The right of a citizen of one State to

pass through or to reside in any other State, for purposes of

trade, agriculture, professional pursuits, or otherwise: to

claim the benefit of the writ of

habeas corpus;

to institute and

maintain actions of any kind in the courts of the State; to take,

hold, and dispose of property, either real or personal, and an

exemption from higher taxes or impositions than are paid by

the other citizens of the State, may be mentioned as some of

the particular privileges and immunities of citizens which are

clearly embraced by the general description of privileges

deemed to be fundamental, to which may be added the elec-

tive franchise, as regulated and established by the laws or

constitution of the State in which it is to be exercised. These,

and many others which might be mentioned, are, strictly

speaking, privileges and immunities, and the enjoyment of

them by the citizens of each State in every other State was

manifestly calculated (to use the expressions of the preamble

of the corresponding provision in the old Articles of Confed-

eration) the better to secure the perpetuate mutual friend-

ship and intercourse among the people of the different States

of the Union.

7244

Howard seems to have thought of the protection of Article IV,

Section 2 as encompassing more than a right of out-of-staters not

to be discriminated against as to these fundamental interests. Some

read the provisions of Article IV, Section 2 as including some abso-

lute rights of the sort Justice Washington described, together with

a right to equality with in-staters in other rights like the right to own

property and to maintain court actions. For Judge Washington, of

course, the rights or interests can be regulated for the general

good.

245

Howard very clearly says that the Privileges or Immunities

Clause of the Fourteenth Amendment would require states to ad-

244

CONG.

Gun:, 39th Cong., 1st Sess. 2764-65 (1866) (statement of Sen. Howard).

115

See id.

at 1629;

CONG. GLOBE,

38th Cong., 1st Sess. 1202,1369,2999 (1864);

CONG. GLOBE,

35th Cong,, 2d Sess. 983-44 (1859). Each says, suggests, or implies that liberties in the Bill of

Rights are privileges or immunities that American citizens carry with them wherever they go in

the nation.

See

Crosskey,

supra

note 62 at 14; Curtis,

A Reyy to Professor Berger, supra

note 3, at

61-64. On the equality in civil rights among members of the state, see, for example,

CONG. GLOBE,

39th Cong., 1st Sess. 1833-37 (1866) (statement of Rep Lawrence).

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BOSTON COLLEGE LAW REVIEW



waftl

here to the limits of the Bill of Rights in addition to those rights

listed by Justice Washington.""

Speaking in 1871, however, Congressman Bingham suggested that

the broad orthodox understanding of Article IV-type interests was

different from what was protected by the Fourteenth Amendment:

Mr. Speaker, that decision in the fourth of Washington's Cir-

cuit Court Reports, to which my learned colleague [Mr. Shel-

labarger] has referred is only a construction of the second

section, fourth article of the original Constitution, to wit,

"The citizens of each State shall be entitled to all privileges

and immunities of citizens in the several States." In that case

the court only held that in civil rights the State could not

refuse

extend to citizens of other States the same general

rights secured to its own ...

Is it not clear that other and different privileges and immu-

nities than those to which a citizen of a State was entitled are

secured by the provision of the fourteenth article, that no

State shall abridge the privileges and immunities of citizens

of the United States, which are defined in the eight articles

of amendment, and which were not limitations on the power

of the States before the fourteenth amendment made them

limitations?

Sir, before the ratification of the fourteenth amendment,

the State could deny to any citizen the right of trial by jury,

and it was done. Before that the State could abridge the

freedom of the press, and it was so done in half of the States

of the Union.

247

On the Bill of Rights point, Congressman Bingham, Senator

Howard, and some who thought all state citizens were entitled to

equality in

Corfiehi

type Article IV rights concurred. The privileges or

immunities

of citizens of the United States

included privileges in the Bill

of Rights.

There is no doubt that the Fourteenth Amendment secured some

measure of equality to American citizens, including African-Americans,

in state secured rights to hold property, to testify, etc. that were listed

in the Civil Rights Act. The historical evidence that the Civil Rights Act

refers only to rights that states created and could destroy is thin. So is

Life



Howard's statement on the Bill of Rights, see Cos:. CionE. 311th Cong., 1st Sess. 2765

(1866) (statement of Sen. Howard).

217 CONG. CLONE, 42d Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham).

December 1996]



PRIVILEGES OR IMMUNITIES CLAUSE



evidence that the Privileges or Immunities Clause, rather than the

Equal Protection Clause, was understood to be the only or even the

primary source of protection for equality in these state law substantive

rights. There is substantial evidence for protection for a set of funda-

mental national rights including Bill of Rights liberties. Still, in the

Slaughter

House Cases,

248

the Privileges or Immunities Clause suffered a

wound from which it has not yet recovered.

III. THE FOURTEENTH AMENDMENT EN THE SLAUGHTER-HOUSE CASES

The story of the

Slaughter

House Gases

is a familiar one.

249

The

Louisiana legislature created a corporation and authorized it to estab-

lish a slaughter-house in New Orleans and several additional counties.

Butchers who had been slaughtering elsewhere could use the newly

created slaughter-house on payment of a fee. But the slaughter-house

was to be the only slaughter-house in the area. In this respect it was

granted a monopoly. No other slaughter-houses were permitted in the

counties in which the monopoly had been granted.

The measure was justified as a health measure and as an exercise

of the police powers of the state. There is no doubt as to the health

and environmental problems caused by the prior approach to slaugh-

tering animals or as to the advantages of a new facility. In the nine-

teenth century, states had often given monopoly privileges to encour-

age capital investment in new enterprises. Butchers attacking the act

claimed it violated the Thirteenth Amendment, and the Privileges or

Immunities, Due Process and Equal Protection Clauses of the Four-

teenth Amendment. This article will focus only on the Court's destruc-

tion of the Privileges or Immunities Clause.

Justice Miller wrote For the Court. He began his discussion with a

recapitulation of the history of the post-Civil War amendments. He

insisted, curiously, that a very superficial investigation was all that was

248

83 U.S. 31i (1872).

249

A major recent re-evaluation of the

Slaughter

House Cases

appears in Richard L. Ayncs,

Constrkting the Law of Freedom: justice Miller, the Fourteenth Amendment, and the

Slaughter

House

Cases, 70 CI 11.-KENT

Rev.

627 (1995). The most novel and powerful aspect of Dean Apes'

important analysis is his historical attempt to explain why the majority reached the conclusion it

did. A

run

discussion of the Court's transformation of the Fourteenth Amendment including a

fine discussion of the

Slaughter

House Cases appears

in W.

W CROSSKEV, POLITICS AND THE

CONSTITUTION 1 1 19-58 (1953). For a novel, but 1 think ultimately unpersuasive, suggestion that

Miller in

Slaughter

House

did read the Fourteenth Amendment as incorporating the Bill of Rights,

see generally Robert C. Palmer,

The Parameters of Constitutional Reconstruction:

Slaughter-House,

Cruikshank,

and The Fourteenth Amendment,

1984 U. 1t.t..

Rev.

739 (1984).

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

required. The "most cursory glance at these articles discloses a unity

of purpose."

° Again, he announced that:

on the most casual examination of the language of these

amendments, no one can fail to be impressed with the one

pervading purpose found in them all, lying at the foundation

of each, and without which none of them would have been

even suggested; we mean the freedom of the slave race, the

security and firm establishment of that freedom, and the

protection of the newly-made freeman and citizen from the

oppressions of those who had formerly exercised unlimited

dominion over him. It is true that only the fifteenth amend-

ment, in terms, mentions the negro by speaking of his color

and his slavery. But it is just as true that each of the other

articles was addressed to the grievances of that race, and

designed to remedy them as the fifteenth.

Justice Miller's "most casual" and "cursory" analysis finds the pur-

poses of the Fourteenth Amendment in the abuses of the Black Codes.

The newly freed slaves, he tells us, were in some states forbidden to

appear in the towns in any other character than menial servants. They

were required to reside on and cultivate the soil without the right to

purchase or own it. They were excluded from many occupations of

gain, and were not permitted to give testimony in the courts in any

case where a white man was a party.

All of this is true enough, though it is radically incomplete, ex-

tremely "casual," and appallingly "cursory." justice Miller leaves out the

entire history of suppression of civil liberties of white opponents of

slavery, including Republicans, in the South before the Civil War.

Justice Miller tells nothing about the suppression of free speech or the

fact that many in the South viewed Republican congressmen who had

sponsored an anti-slavery book, including some who were later mem-

bers of the committee that proposed the Fourteenth Amendment, to

be felons. He fails to note-that Black Codes abridged privileges includ-

ing free speech, the right to hold religious meetings and the right to

bear arms, and that there were complaints about such deprivations in

the 39th Congress. He neglects to report that the slogan of the Repub-

lican party in 1856 and 1860 demanded free speech, free soil, free

labor and free men.

253

''"

Slaughter-House, 83

U.S. at 67.

251

Id.

at 71-72.

See id.

at 70.

253

See.

RICHARD SEWELL,

BALLOTS

FOR FREEDOM

1 (1976).

December 19961

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PRIVILEGES OR IMMUNITIES CLAUSE



The failure to mention the history of suppression of free speech

in the South is puzzling since the issue is raised in Justice Bradley's

dissent:

The mischief to be remedied was not merely slavery and its

incidents and consequences; but that spirit of insubordina-

tion and disloyalty to the National government which had

troubled the country for so many years in some of the States,

and that intolerance of free speech and free discussion which

often rendered life and property insecure, and led to much

unequal legislation. The amendment was an attempt to give

voice to the strong National yearning for that time and that

condition of things, in which American citizenship should be

a sure guaranty of safety, and in which every citizen of the

United States might stand erect on every portion of its soil,

in the full enjoyment of every right and privilege belonging

to a freeman, without fear of violence or molestation.

254

Having completed his historical exegesis, Justice Miller proceeded

to a constitutional one. The Fourteenth Amendment, he noted, made

all persons born in the country and subject to its jurisdiction both

citizens of the United States and of the states in which they reside.

These distinct citizenships had different characteristics and different

privileges attached to each. Only privileges or immunities of citizens

of the United States were placed "under the protection of the Federal

Constitution."'" As Miller's opinion progressed, he announced that

the great mass of civil rights and civil liberties are privileges and

immunities of state citizenship. These he identified with the fundamen-

tal rights of Article IV, Section 2.

[The Article IV, Section 2 Privileges or Immunities Clause]

did not create those rights, which it called privileges and

immunities of citizens of the States [sic]. It threw around

them in that clause no security for the citizen of the State in

which they were claimed or exercised. Nor did it profess to

control the power of the State governments over the rights of

its own citizens.

Its sole purpose was to declare to the several States, that

whatever those rights, as you grant or establish them to your

own citizens, or as you limit or qualify, or impose restrictions

on their exercise, the same, neither more nor less, shall be

254

Slaughter

-HOUSA

83 U.S. at 123 (Bradley, J., dissenting).

255

Id.

at 74.

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

the measure of the rights of citizens of other States within

your jurisdiction.

256

Justice Miller then asked a loaded rhetorical question:

Was it the purpose of the fourteenth amendment, by the

simple declaration that no State should make or enforce any

law which shall abridge the privileges and immunities of citi-

zens of the United States, to transfer the security and protec-

tion of all the civil rights which we have mentioned, from the

States to the Federal government? And where it is declared

that Congress shall have the power to enforce that article, was

it intended to bring within the power of Congress the entire

domain of civil rights heretofore belonging exclusively to the

States?

257

Of course, the correct answer to that question is "No!" Most

Republicans did not intend to eliminate or threaten all jurisdiction

exercised by the states with preempting national laws. They did not

intend to federalize the entire domain of state law and turn supervision

of virtually all questions of state law over to federal courts. They

thought the federal system had virtues, and they wanted to preserve its

positive features and to rid it of what they saw as abuses.

258

Even on this

point, however, candor demands recognition of ambiguity. There were

some ardent nationalizers among Republicans.

259

Goals of individual

256

Id.

at 77.

257

258

See

CONG. GLOBE, 39th Cong., 1st Sess. 1088-89, 1292, 1832-33, 2526, 2904, app. at 99,

app. at 257 (1866);

see eLsa

CURTIS,

No STATE, SHALL ABRIDGE:,

supra

note 3, at 69, 95. Of the

prototype, Representative Hale said: "I submit it is in effect a provision under which all State

legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual

citizen, may he overridden and the law of Congress established instead." CONG. GLOM, 39(/1

Cong., lit Sess. 1063-64 (1856) (statement of Rep. Hale). Hale was not upset with a plan that

required states to obey the Bill of Rights, because he thought (mistakenly) that existing law

already made the Bill of Rights a limit on the states.

Id.

(statement of Rep. Hale). For more on

Hale's concern for federalism, see

id.

at 1065 (statement of Rep. Hale). Giles Hotchkiss had two

objections to the prototype. It failed permanently to secure the rights it sought to protect, because

it left the matter up to Congress, and what the present Congress passed a subsequent one could

repeal.

Id.

at 1095 (statement of Rep. Hotchkiss). Second, he objected because he understood

"the amendment as now proposed by its terms to authorize Congress to establish uniform laws

throughout the United States upon the subject name, the protection of life, liberty, or property.

1 am unwilling that Congress shall have any such power."

Id.

(statement of Rep. Hotchkiss). He

agreed with the object of the clause, "that no State shall discriminate between its citizens and

give one class of citizens greater rights than it confers upon another."

Id.

(statement of Rep.

Hotchkiss). Senator Steward suggested that the prototype would "obviate the necessity of ... any

more State Legislatures."

Id.

at 1082 (statement of Sen. Steward).

259

cf.

Cora:. GLoBE, 39th Cong., 1st Sess. 1118, 1294 (1866) (statement of Rep. Wilson)

December 10061



/1?/

11.EGES 0/?

IMMUNITIES CLAUSE



rights, non-discritnination, state rights, and popular sovereignty are in

tension with each other.

Having proved to his satisfaction that Republicans did not intend

to nationalize all law and all civil rights by the Privileges or Immunities

Clause, Justice Miller unintentionally proceeded to imply that in fact

the clause did nothing at all. He established this point in the course

of an unsuccessful effort to show that, by his analysis, the clause had

some independent meaning. "Lest it should be said that no such

privileges and immunities are to be found if those we have been

considering are excluded, we venture to suggest some which owe their

existence to the federal government, its National character, its Consti-

tution, or its laws."

What, then, were the privileges or immunities so crucial to Ameri-

cans of African descent, the persons for whom Miller incorrectly sug-

gested the Amendment was exclusively fashioned? Behold the result:

citizens could travel to Washington, D.C. to transact business with the

national government; they had free access to the seaports, and to the

sub-treasuries; they could demand the care and protection of the

federal government when on the high seas or within the jurisdiction

of a foreign government. They had the right to use the navigable

waters. They had the right to peaceably assemble and petition the

national government. In short, they had exactly the same bundle of

enforceable privileges they would have had without the passage of the

Fourteenth Amendment, or, for Americans of African descent, as

they would have had if the Fourteenth Amendment consisted solely of

the Citizenship Clause. I assume, as Republicans did, that African-

(justifying Civil Rights Bill based on congressio

al power to enforce Thirteenth Amend

ent

ent and

also power to enforce Due Process Clause). Citizens

had

certain basic rights and Congress had

the right to enforce the rights. Read broadly and with the assumption that this understanding

was incorpiwated into the Fourteenth Amendment, this idea wottld make possible total pre-emp-

tion of state law. But. of course:, we know that many Republicans would have Ilrund total federal

power unacceptable. Wilson himself suggested that "the entire structure of [the Civil Rights Bill]

rests on discrimination relative to civil rights and immunities."

Id.

at 1118 (statement of Rep.

Wilson);

sre

also id,

at I 117 (statement of Rep. Wilson). The cross currents in the debates and

multiplicity of views mean that a court cannot simply transcribe the original intent

the

framers

on the full extent of congressional power. Instead it mnst use the history

the Amendment

constructively to create the best account possible. The construction diet the Court has reached

with reference to the Equal Protection Clause—that heightened scrutiny is reserved for racial

classifications and others that are markedly similar—is a construction that is a reasonable inter-

pretation of the broad and sometimes conflicting goals of the framers.

in the case of rights

for woolen or racial segregatio

II, the bro

ad goals and the specific understandings of the framers

are often in conflict, and such a conflict also means that courts must sometimes construct and

cannot always simply transcribe the purposes of the framers.

scar

Slaughler-House,

83 U.S. at 70,

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

Americans became citizens by the passage of the Thirteenth Amend-

ment:

These privileges have some common characteristics. All of them

are implied by the very nature of the federal government and can be

derived by structural arguments, even before the passage of the Four-

teenth Amendment. By this reading of "privileges or immunities of

citizens of the United States," the Fourteenth Amendment added noth-

ing to the Constitution as it existed before its enactment.

Second, significantly, most of these "privileges" hardly relate to

pressing problems of the newly freed slaves. In the premier guarantee

of Section I, Republicans have protected newly freed slaves both on

their trans-Atlantic cruises to Paris, and once they arrive in the French

capital. As Justice Swayne noted in his dissent, the

Slaughter

House

majority performed a judicial miracle: they turned bread into a

stone.

262

The miracle was performed in the name of federalism—hold-

ing "with a steady hand the balance between State and Federal

power.

"263

The shortcoming of Justice Miller's

Slaughter

House

decision was

not that it rejected the butchers' invitation that the Court set itself up

under the Privileges or Immunities Clause as the supreme arbiter of

the reasonableness of economic legislation,

264

an invitation the

Lochner

Court later accepted under the Due Process Clause. The great failure

of the Court was that its rationale deprived the Privileges or Immunities

Clause of its central core. It left protections of Bill of Rights liberties

to the tender mercies of the very states that had so recently made

mincemeat of them.

Very soon the

Slaughter

House

dissenting Justices once again exer-

cised their proposed charter to judge the reasonableness of economic

legislation. They did so in the case of Myra Bradwell, a married woman

who had been denied admission to the Illinois Bar because of sex and

marital status.

i"' Mrs. Bradwell insisted that the Privileges or Immuni-

ties Clause protected her right to practice law.

266

The

Slaughter

House

majority, having deprived the Privileges or Immunities Clause of any

significant meaning, quickly disposed of Mrs. Bradwell's claim by a

citation to

Slaughter-House.

See id.

at 78-80; CLING. CLonti, 391h Cong., 1st Sess. 1115 (1866) (statement of Rep.

Wilson).

2112

83 U.S. at 129 (Swayne,



dissenting).

Id.

at 82.

"See

Slaughter-House Cases

Brief for Defendants,

LANDMARK BRIEFS

587-601.

" Bradwell v. Illinois, 83 U.S. 130, 130-31 (1872).

264i

See id.

at 135.

267

Id.

at 139.

December 1996]



PRIVILEGES OR IMMUNITIES CLAUSE



The matter was not so easy for the

Slaughter

House

dissenters.

Three of the four

Slaughter

House

dissenters found it reasonable for a

state to deny a woman, even a single woman, the right to practice

law—a view they shared with some framers of the Fourteenth Amend-

ment. Indeed, these

Slaughter

House

dissenters announced that it was

positively desirable to keep women out of the profession. The Creator

himself had set the rule: the "paramount destiny and mission of woman

are to fulfil [sic] the noble and benign offices of wife and mother.

"268

Chief Justice Chase dissented alone and without opinion.

269

The con-

curring opinion in

Bradwell

suggests some of the uncertainty inherent

in the

Slaughter

House

dissenters' broad view of the power to strike

down economic state legislation under the Privileges or Immunities

Clause.

IV. EVALUATION OF SLAUGHTER-HOUSE

The Majority

If Justice Miller was partly wrong in his

Slaughter

House

decision,

then what did the Privileges or Immunities Clause mean? It protected

mainly rights, privileges, and immunities set out in the text of the

Constitution itself." These included basic rights such as free speech,

press, freedom of religion, and the right to petition, and others such

as the privilege against self-incrimination, the right to jury trial, and

the immunity against cruel and unusual punishments. These basic

rights were recognized, but not created by, the Bill of Rights and were

protected by it against federal interference. The Fourteenth Amend-

ment extended the protection against state interference.

These privileges set out in the Federal Constitution would include

the prohibiton of state discrimination against non-residents as to fun-

damental rights and interests—the protection against discrimination

set out in Article IV, Section 2. It also included the protection against

ex post facto laws and other rights set out in the body of the original

Constitution. For at least some Republicans, the Constitution, even

before the Fourteenth Amendment, combined protection of these

absolute national privileges together with some type of equality in basic

258

1d.

at 141.

268

Id.

at 142 (Chase, J., dissenting without opinion).

270

Courts of all persuasions have found some rights that are less explicit in the text, such as

the right to travel. I believe that some acceptance of less textually explicit rights is necessary to

effectuate the Constitution's purposes. Still, if such rights are too broadly construed, the doctrine

of non-textual rights threatens the basic purpose of representative government. Much of the

modern controversy in constitutional law is generated by this tension.

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BOSTON COLLEGE LAW REVIEW



[Vol. 38:1

civil rights regulated by state law. This understanding overlaps with a

core understanding many Republicans had of the Equal Protection

Clause. Some probably envisioned a larger body of fundamental na-

tional interests, many of which were subject to broad state regulation.

Why should the framers use the words "privileges or immunities"

instead of simply "rights in the Bill of Rights?" Why include pre-existing

constitutional protections? The phrase "rights in the Bill of Rights"

would leave out constitutional guarantees of liberty such as habeas

corpus, the prohibition against ex post facto laws and the protection

for migrants from one state to another under Article IV, Section 2.

Court decisions had suggested that other provisions of Article IV,

Section 2 represented obligations that were not enforceable against

state officers.

' By including in the Privileges or Immunities Clause

271

See, e.g.,

Kentucky v. Dennison, 65 U.S. 66, 107-08 (1861) (holding that constitutional

requirement to return fugitives from justice did not contain judicially enforceable limit on state

officers),

overruled by

Puerto Rico v. Branstad, 483 U.S. 219 (1987); Prigg v. Pennsylvania, 41 U.S.

539 (1842) (holding that state officers could not be compelled to enforce fugitive slave clause).

The 1871 Report of the Judiciary Committee on the Memorial of Victoria C. Woodhull asking

Congress to grant suffrage to women under the Privileges or Immunities Clause is (to say the

least) puzzling but raises concerns as to whether

limits

in Article IV, Section 2 were enforceable

against the states.

The [Privileges or Immunities Clause of the] fourteenth amendment, does not in

the opinion of the committee refer to privileges and immunities of citizens of the

United States other than those privileges embraced in the original text of the

Constitution, article 4, section 2. [Bingham and other Republicans had read this

clause as making Bill of Rights guarantees at least a moral limit on the states.] The

fourteenth amendment, it is believed, did not add to the privileges or immunities

before mentioned, but was deemed necessary for their enforcement as express

limitations on the powers of the States. It had been judicially determined that the

first eight articles of amendment of the Constitution were not limitations on the

power of the States, and it was apprehended that the same might be held of the

provision of the second section, fourth article.

H.R.

REP. No.

22, 41st Cong., 3d Sess. (Jan. 30, 1871) (majority report presented by Rep.

Bingham).

Two months later, Bingham spoke on a bill to enforce the Fourteenth Amendment against

Klan terrorism. After saying that the privileges or immunities of the Fourteenth Amendment were

chiefly set out in the Bill of Rights, Bingham said:

[The decision of Justice Washington in

Weld] is

only a construction of the second

section, fourth article of the original Constitution, to wit, "The citizens of each State

shall be entitled to all privileges or immunities of citizens in the several States." In

that case the court only held that in civil rights the Stale could not refuse to extend

to citizens of other States the same general rights secured to its own ... .

Is it not clear that other and different privileges and immunities than those to

which a citizen of a State was entitled are secured by the provisions of the fourteenth

article, that no state shall abridge the privileges and immunities of citizens of the

United States, which are defined in the eight articles of amendment, and which

were not limitations on the power of the States before the fourteenth amendment

made them limitations.

CONG. GLoiw, 42d Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham).

December 1996]



PRIVILEGES OR

immuNmEs

CLAUSE



constitutional rights beyond those in the Bill of Rights, the Fourteenth

Amendment clearly gave Congress power to enforce these guarantees.

Some of the abuses that came from slavery and continued after the

Civil War involved discrimination against non-residents as to funda-

mental interests of the conventional Article IV type.

The interpretation of the Fourteenth Amendment suggested here

is much like that held by many Republicans before the Civil War. They

thought that the original Privileges or Immunities Clause had both an

equality component for out-of-staters and separate protection for fun-

damental rights recognized by the Constitution and the Bill of Rights.

They read the clause to say "the citizens of each state shall be entitled

to all privileges and immunities of citizens [of the United States] in

the several states."

272

justice Bradley, in his

Slaughter

House

dissent,

captured this aspect of the Amendment.

It is pertinent to observe that both the clause of the Consti-

tution referred to, and Justice Washington in his comment

on it, speak of the privileges and immunities of citizens in a

State; not of citizens of a State. It is the privileges and immu-

nities of citizens, that is, of citizens as such, that are to be

accorded to citizens of other States when they are found in

any State; or, as Justice Washington says, "privileges and im-

munities which are, in their nature, fundamental; which be-

long, of right, to the citizens of all free governments."

It is true the courts have usually regarded the clause re-

ferred to as securing only an equality of privileges with the

citizens of the State in which the parties are found. Equality

before the law is undoubtedly one of the privileges and im-

munities of every citizen. I am not aware that any case has

arisen in which it became necessary to vindicate any other

fundamental privilege of citizenship; although rights have

been claimed which were not deemed fundamental, and have

been rejected as not within the protection of this clause. Be

this, however, as it may, the language of the clause is as I have

stated it, and seems fairly susceptible of a broader interpreta-

tion than that which makes it a guarantee of mere equality of

privileges with other citizens.

But we are not bound to resort to implication, or to the

constitutional history of England, to find an authoritative

declaration of some of the most important privileges and

272

CuuTts, No STATE SHALL ABRIDGE,

St1Pra

note 3, at 60-61;

see

Crosskey, supra note 62,

13-15.

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BOSTON COLLEGE LAW REVIEW



[Vol. 38:1

immunities of citizens of the United States. It is in the Con-

stitution itself. The Constitution, it is true, as it stood prior to

the recent amendments, specifies, in terms, only a few of the

personal privileges and immunities of citizens, but they are

very comprehensive in their character. The States were

merely prohibited from passing bills of attainder, ex post facto

laws, laws impairing the obligation of contracts, and perhaps

one or two more. But others of the greatest consequence were

enumerated, although they were only secured, in express

terms, from invasion by the Federal government; such as the

right of habeas corpus, the right of trial by jury, of free

exercise of religious worship, the right of free speech and a

free press, the right peaceably to assemble for the discussion

of public measures, the right to be secure against unreason-

able searches and seizures, and above all, and including al-

most all the rest, the right of not being deprived of life,

liberty, or property, without due process of law. These, and

still others are specified in the original Constitution, or in the

early amendments of it, as among the privileges and immu-

nities of citizens of the United States, or, what is still stronger

for the force of the argument, the rights of all persons,

whether citizens or

not.

273

Justice Bradley's analysis of Section 1 as applying Bill of Rights

liberties to the states was later espoused by Justice Field,'" Justice

Brewer and Justice Harlan,

275

and much later by four twentieth

century Justices of the Supreme Court—Justices Black, Douglas,

Murphy and Rutledge."'

Justice Field's Dissent

In his

Slaughter

House Cases

dissent, Justice Field interpreted the

Privileges or Immunities Clause, in good part at least, as an equality

guarantee. Just as Article IV, Section 2 protected citizens of other states

against arbitrary and discriminatory legislation with respect to funda-

mental interests such as those specifically listed in the Civil Rights Act,

the Privileges or Immunities Clause extended a protection against

discrimination in these rights to citizens of the same state.

" To the

273

83 U.S. at 117-18 (Bradley, J., dissenting).

274

O'Neil v. Vermont, 144 U.S. 323, 337 (Field, J., dissenting).

275

See, e.g.,

Maxwell v. Dow, 176 U.S, 581, 605 (1900) (Harlan, J., dissenting); Humid° v.

California, 110 U.S. 516, 538 (1884) (Harlan,,[., dissenting)

276

Adamson v. California, 332 U.S. 46, 68 (1947) (Black, J., dissenting).

277

See Slaughter

House,

83 U.S. at 100-01 (Field, J., dissenting).

December 1996



PRIVILEGES OR IMMUNITIES CLAUSE

extent that this interpretation reaches only discrimination as to com-

mon occupations of life based on color or on some equally suspect and

arbitrary basis such as national origin or religion, it interprets the

Privileges or Immunities Clause as Senator Howard, a leading framer

of the Fourteenth Amendment, and others seem to have interpreted

the Equal Protection Clause.

278

If one interpreted the Privileges or

Immunities Clause only as containing a prohibition on discrimination

based on race and closely analogous discrimination such as national

origin, religion, and political affiliation, it would not be sufficient to

void the slaughter-house monopoly.

Divergent statements in the debates leave unanswered questions.

If one insists on a national body of fundamental economic interests

Now, what the clause in question does for the protection of citizens of one State

against the creation of monopolies in favor of citizens of other States, the fourteenth

amendment does for the protection of every citizen of the United States against

the creation of any monopoly whatever. The privileges and immunities of citizens

of the United States, of every one of them, is secured against abridgment in any

limn by any State. The fourteenth amendment. places them under the guardianship

()I' the National authority. All monopolies in any known trade or nmonfitcture are

an invasion of these privileges ... .

Id.

For a modern attempt to read the Privileges or Immunities Clause as such a guarantee of

instate equality, see Harrison,

supra

note 3, at 1388,

1412

n.103.

278

Cosre..

Glom, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard).

The last two clauses of the first section of the amendment disable a State from

depriving not merely a citizen of the United States, but any person, whoever he

may he, of life, liberty, or property without due process of law, or from denying to

him the equal protection of the laws of the State. This abolishes all class legislation

in the States and does away with the injustice of subjecting one caste of persons to

a code not applicable to another. It prohibits the hanging of a black man for a

crime for which the white man is not to he hanged, It protects the black man in

his fundamental rights as a citizen with the same shield which it throws over the

white man. Is it not time, Mr. President, that we extend to the black man, 1 had

almost called it the poor privilege of the equal protection of the law? Ought not

the time to be now passed when one measure of justice is to be meted out to a

member of one caste while another and a different measure is meted out 10 the

member of another caste, both castes being alike citizens of the United States, both

bound to obey the same laws, to sustain the burdens of the same Government, and

both equally responsible to justice and to God for the deeds done in the body?

Id.

(statement of Sen. Howard). After quoting the Due Process and Equal Protection Clauses,

which he saw as embodying the spirit of the Declaration of Independence, Senator Poland said:

Notwithstanding this we know that Stale laws exist, and some of them of very recent

enactment, in direct violation of these principles. Congress has already shown its

desire and intention to uproot and destroy all such partial State legislation in the

passage of . . . the civil rights bill. The power of Congress to do this has been

doubted



It certainly seems desirable that no doubt should be left existing as

to the power of Congress to e»force principles lying at the very foundation of all

republican government if they be denied or violated by the States, and

cannot

doubt but that every Senator will rejoice in aiding to remove all doubt upon this

power of Congress.

Id.

at 2961 (statement of Sen. Poland).

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BOSTON COLLEGE LAW REVIEW

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[Vol. 38:1

beyond those in the Bill of Rights, or even on a right to general equality

of all citizens in fundamental economic interests created by state law,

then under the Enforcement Clause, the federal government could

preempt most areas of state law. Most Republicans seemed quite un-

willing to authorize this. On this point, it is simply impossible to fully

harmonize all the conflicting strands of the debates. A limited, but not

entirely textual, class of individual rights plus a limited right to equality

probably comes as close as possible to capturing the major motivations

of the framers to protect fundamental constitutional rights, outlaw

racial and similarly invidious discrimination, and preserve a large role

for the states.

1. A Critique of Recent Scholarly Support for Justice Field

John Harrison in an elaborate article argues that Field's analogy

to Article IV, Section 2 was at least one, and perhaps the only, proper

interpretation of the Privileges or Immunities Clause. He further sug-

gests that the Equal Protection Clause did not proscribe racial clas-

sifications conferring and withholding substantive rights but instead

referred to "the mechanisms through which the government secured

individuals and their rights against invasion by others."

279

Elsewhere

Harrison notes that it "is likely that the [Equal Protection] Clause also

governs the content of

protective laws.

"280

"[O]ne way of depriving

someone of the benefit of a law would be to pass another that took the

benefit away . .

"281

Still, he suggests the Clause was focused on equal-

ity in protection of existing rights, not on entitlement to substantive

rights such as the ownership of real property. That, as he sees it, was

the work of the Privileges or Immunities Clause. There are parts of the

framing debates that some read as consistent with this view of the

Privileges or Immunities Clause.

282

Still, a number of members of Congress in 1866 read "equal

protection" to proscribe at least some irrational classifications in the

allocation of substantive rights, such as those related to property. Many

also read the Clause to require protection for existing fundamental

rights and interests. The prototype of the Equal Protection Clause

279

Harrison,

supra note

3, at 1435, 1450.

299

Id. at

1448.

291

Id.

282

See id.

at 1447;

see also

CONG.

Gi.oisE, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep.

Bingham);

cf.

Phillip A. Hamburger,

Equality and Diversity: The Eighteenth-Century Debate Abrntt

Equal Protection and Equal Civil Rights,

1992

Sup.

Or.

REV. 295, 378

92; Earl M. Maltz,

Fourteenth

Amendment Concepts in the Antebellum

Era, 32 Am, j. LEGAL 1

11.sT. 305, 325-29 (1988); Earl M.

December

1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



allowed Congress to secure "to all persons in the several states equal

protection in the rights to life, liberty, and property."

" Representative

Hale objected that the Clause would allow Congress to provide what

property rights should belong to married women. This, Hale insisted,

should be a matter of state law. Thaddeus Stevens interrupted and

disagreed with Hale. He accepted Hale's assumption that "equal pro-

tection" reached substantive rights like property. He seemed to believe,

however, that the classification was not irrational. "When a distinction

is made between two married people or two femmes sole, then it is

unequal legislation; but where all of the same class are dealt with in

the same way then there is no pretense of inequality."

For Stevens, equal protection required that similarly situated peo-

ple be treated equally. Blacks and whites were similarly situated with

reference to property and contract rights; married women and men

were not. Senator Howard said the Equal Protection Clause:

abolishes all class legislation in the States and does away with

the injustice of subjecting one caste of persons to a code not

applicable to another. It prohibits hanging a black man for a

crime for which a white man is not to be hanged. It protects

the black man in his fundamental rights as a citizen with the

same shield which it throws over the white man.

For a number of Republicans who spoke in 1866, equality of

protection encompassed equality in substantive rights like the right to

own property and to inherit. Indeed, at times Harrison notes a sig-

nificant overlap between his reading of the Equal Protection and

Privileges or Immunities Clauses. The greater the overlap, the greater

the possibility that the interpretation of the Privileges or Immunities

Clause limiting it to equality in substantive state law rights has reduced

it to a purely redundant provision.

" In light of all this history, the

Maltz, The Concept of Equal Protection of the Laws—A Historical Inquiry,

SAN DIEGO

REV.

499 (1985).

283

CON6. CLORE,

39th Cong., 1st Sess. 1034 (1866).

284

Id.

at 1064 (statement of Rep. Stevens).

285

Id, at 2766 (statement of Sen. Howard).

286

See id. at 1064; id.

at 2961 (statement of Sen. Poland);

see also

Connecticut Gen. Life Ins. Co. v. Johnson, 303

U.S. 77, at 83-89 (1938) (Black, J., dissenting) (maintaining that word "person" in Fourteenth

Amendment does not include corporations).

See, e.g., Pacific Gas,

475 U.S. 1.

December 1996]

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PRIVILEGES OR IMMUNITIES CLAUSE



103

a right to silence might be impaired.

° The change, if it occurred at

all, would come about because of expanded power to the government

to regulate economic corporations, not because the rights of citizens

to a right to reply, for example, had grown.

Under the Privileges or Immunities Clause, aliens would not have

a right to bear arms, but, as the Supreme Court reads the Second

Amendment, no one else has a personal right to bear arms either. To

the extent that the Privileges or Immunities Clause protects citizens,

its somewhat narrower scope might allow greater regulation of the

ability of artificial persons created for economic objectives to translate

economic into political power. Citizens could still retain the ability to

use corporations organized for free speech and association purposes

for communication.

Reviving the Privileges or Immunities Clause would no doubt have

other implications as well. Exactly what it would mean, of course, no

one can say. What the revival of the Privileges or Immunities Clause

should not do is protect the "market" from the democratic process.

For all its virtues, the market has its limits. First, as with pollution

or destruction of wetlands, the unregulated market pervasively dumps

costs on parties who are not parties to the bargain. Second, consumer

decisions are often made with grossly inadequate information. Indeed,

one characteristic effort of concentrated economic power is to keep

information prejudicial to its interests from the public. Often the

market is far from perfectly competitive. The market short-changes

some collective and spiritual interests.

360

It does so by focusing on short

term individual advantage and failing to consider long term effects on

others. Large concentrations of economic power can be used to stifle

competition. For example, without strong regulation of the market, an

"Consider the following analogy. Assume that the right to bear arms is a personal right of

citizens protected by the Fourteenth Amendment. A citizen hires aliens as security guards and

arms them, A state statute prohibits aliens from beating arms. Although the citizen would have

a personal right 1m bear arms, he would not, it seems, have the right.

to use aliens

to hear arms

on his behalf. Similarly, a natural person would have a right. against compelled expression, but

the artificial corporation would not. On the other hand, one might argue that the right

wtmld in effect be an unconstitutional condition, conditioning the use of the corporate [Orin on

relinquishing a constitutional right.

.`"qhe problem is complex because the market has many great virtues, A pressing problem

is how to preserve the virtues while remedying its vices.

Compare

SCHUMACHER, SMALL IS

BEAUTIFUL: ECONOMICS AS IF PEOPLE MATTERED (1973),

with

ANDREW BARD SCHMOOKLER, THE

ILLUSION OF CHOICE:

How THE MARKET ECONOMY SHAPES OUR DESTINY (1993), Romirr

KIITTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS (1997),

and

CHARLES

DICKENS, HARD TIMES (Everyman 1994).