On the eve of oral argument in McDonald v. City of Chicago (the case before the United States Supreme Court that raises the question whether the Second Amendment right to keep and bear arms applies to the states under either the privileges or immunities clause or the due process clause of the 14th Amendment), two important new papers have been posted on SSRN. Both Philip Hamburger and Kurt Lash have written on "the privileges and immunities of citizens of the United States."
Philip Hamburger's paper is entitled "Privileges and Immunities". Here is the abstract:
What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.
Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.
This article, the second in a three-part investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States ”— a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.
It is quite interesting that the two papers take radically different stances on the relationship of the 14th Amendment "privileges or immunities clause" to the "privileges and immunities clause" of Article IV. For those who do not recall, the basic point of the Article IV clause was to insure that a state would afford the same "privileges or immunities" to citizens of other states that it provided to its own citizens. (So if Louisiana allows its own citizens to own property, it must allow the citizens of Mississippi to own property as well.) What then is the relationship between the Article IV clause and the 14th Amendment?
- Lash's new paper (following his earlier "The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art") argues that the drafters of the 14th amendment intended the "privileges or immunities of citizens of the United States" to protect a different set of rights than were protected by the 4th Amendment's clause with similar (but significantly different) wording. On Lash's theory, the phrase "of citizens of the United States" is intended to specify a set of rights that citizens possess qua (where "qua" means "in virtue of") their status as United States citizens.
- Hamburger's new paper argues that the intended legal content of 14th Amendment's clause was identical to the content of the 14th Amendment's clause--but that the other provisions of the 14th Amendment (the citizenship provision of Section One and the enforcement power of Section Five) would have the effect of guaranteeing that free blacks would receive the protections of Article IV on the same terms as white citizens.
Neither Hamburger nor Lash directly address the question as to how the intentions of the framers relate to the public meaning of the text, although Part III of Lash's series will reach that question.
On the question of original public meaning of the text, it might be useful to lay out the major positions. For the sake of simplicity, we should note that the words "privilege" and "immunity" and the related phrases "privileges and immunities," "privileges or immunities," and variations like "rights and immunities" or "privileges and liberties" seem to have been used to refer to what we would call "rights". To the modern ear, the words "privilege" and "immunity" might seem to refer to a subset of legal norms that could be differentiated from rights, e.g., "It was only a privilege and not a right." But the Nineteenth Century sense of the words "privilege" and "immunity" seems to have been more or less synonymous with the contemporary sense of the word "right".
With that point out of the way, the possible interpretations of the text of the 14th Amendment Privileges or Immunities Clause can be organized into two major groups, with subpossibilities falling under the two major categories:
Group One: Interpretations that Accept the Principle of Compositionality. The notion of "compositionality" is that the meaning of a phrase or sentence can be derived from the meaning of the individual words as combined by the principles of syntax and grammer. How then might we gloss "privileges or immunities of citizens of the United States"? It will depend on the work done by the two occurrences of the word "of" in connecting the phrase "privileges or immunities" with the word "citizens" and the phrase "United States."
A. The "All Rights" Interpretation: The first possibility is that the phrase refers to all the rights possessed by citizens of the United States. This interpretation makes the set of rights extremely broad--as every legal right possessed by every citizen would be consitutiionalized and federalized.
B. The "Common Rights" Interpretation. The second possibility is that the phrase refers to the rights that are are shared in common by citizens of the United States. This would encompass all of the basic common law rights and the rights guaranteed by other provisions of the Constitution, including the Bill of Rights in general and the Second Amendment in particular.
C. The "Qua" Interpretation. The third possibility is that the word "of" means "by virtue of" or "because of". On this interpretation, the relevant set of rights would be the rights that citizens possess qua their status as citizens of the United States. There are two further possibilities here:
1. The rights include all the rights that citizens possess as United States citizens, including the rights that citizens possess against the federal government under the Bill of Rights, e.g., the Second Amendment right to keep and bear arms, and the rights that they possess by virtue of their United States citizenship against the states, e.g., the rights conferred by the contracts clause of Article I.
2. The rights are limited to the rights that citizens have against state governments by virtue of their United States citizenship. This limited set would include the rights conferred against the states in Article I (including the contract clause) and other rights that can be derived from the Constitution. This list might include the rights discussed by Justice Miller in The Slaughterhouse Cases.
Group Two: Interpretations that Treat the "privileges or immunities of citizens of the United States" as an Idiom or Phrase of Art. Idioms are phrases that do not obey the principle of compositionality--the meaning of the whole phrase cannot be derived from its parts. For example, the phrase "kick the bucket" (when used in its idiomatic sense) means to die. A "phrase of art" is an idiom which is used by a linguistic subcommunity, e.g., lawyers.
A. The Possibility that "Privileges or Immunities of Citizens of the United States" was an idiom. Although it seems unlikely, it is theoretically possible that the phrase "privileges or immunities of citizens of the United States" had become an idiom. That idiom might refer to the legal meaning of the Article IV "privileges and immunities clause" (as glossed in Corfield v. Coryell or some other line of cases) or it might refer to the phrase as it was used in various treaties.
B. The Possibility that "Privileges or Immunities of Citizens of the United States" was a phrase of art. It seems more likely that an idiomatic meaning of the phrase would have been like a term of art--a technical meaning of the whole phrase as it was used by the linguistic subcommunity of lawyers and lawmakers. Once again, this leads on to further possibilities:1. The Corfield v. Coryell Interpretation. One possibility is that the legal gloss on Article IV's "privileges and immunities" clause in Corfield had become a legal phrase of art and therefore that the 14th Amendment refers to the "fundamental rights" discussed in Justice Bushrod Washington's opinion in Corfield.2. The Rights of National Citizenship Interpretation. Another possibility is that the phrase "privileges or immunities of citizens of the United States" was distinguished by the linguistic subcommunity of lawyers and lawmakers from Article IV. Lash's papers suggest something like this. On this theory, technical meaning of the phrase could be traced to various treaties and statutes that granted citizens of new territories (e.g., the Louisiana purchase) the same rights as citizens of the United States.3. The Antidiscrimination Principle Interpretation. One final possibility is that the "privileges or immunities of citizens of the United States" was a phrase of art that referred to the no-discrimination-against-out-of-state-citizens principle that was the function of Article IV's "privileges or immunities" clause. This might be Hamburger's position.
Notice that only two of the possibilities do not lead to incorporation of the Second Amendment--Group One, Subpossibility C, Sub-subpossibility 2, which tracks Justice Miller's theory in The Slaughterhouse Cases, and Group Two, Subpossibility B, Sub-subpossibility 3, which seems to be Hamburger's view. As a matter of original public meaning, Miller's theory is generally regarded as implausible and discredited, precisely because of the odd limitation to the preexisting rights of citizens conferred by federal law against the states. This leaves only Hamburger's theory (which is contained in new work that has yet to be assessed by the scholarly community). In this regard, it will be very interesting to see how the debate between Hamburger and Lash plays out--as their views clash precisely on the question whether the 14th Amendment privileges or immunities clause applies the Bill of Rights to the states.
Read Lash and Hamburger.
For my take on these issues, see my Incorporation and Originalist Theory.