The Enumerated-Rights Reading of the Privileges Or Immunities Clause: a Response to Barnett and Bernick

University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 2019 The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick Kurt T. Lash University of Richmond - School of Law, [email protected] Follow this and additional works at: https://scholarship.richmond.edu/law-faculty-publications Part of the Constitutional Law Commons Recommended Citation Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame Law Review 591 (2019). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\95-2\NDL202.txt unknown Seq: 1 2-JAN-20 13:28 THE ENUMERATED-RIGHTS READING OF THE PRIVILEGES OR IMMUNITIES CLAUSE: A RESPONSE TO BARNETT AND BERNICK Kurt T. Lash* INTRODUCTION In 1871, John Bingham explained the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause—a clause Bingham himself drafted and had successfully convinced his colleagues to add to the Four- teenth Amendment in 1866. According to Bingham, the privileges or immunities of national citizenship were not those protected by the Privileges and Immunities Clause of Article IV. Instead, the rights of national citizenship were those “guarantied by the amended Constitution and expressly enumerated in the Constitution.”1 Bingham’s explanation tracks what I have called the “enumerated-rights” reading of the Privileges or Immunities Clause.2 This reading understands “the privileges or immunities of citizens of the United States” as involving only those rights enumerated in the citizen’s Con- stitution. This includes, but is not limited to, those rights enumerated in the Bill of Rights. In a series of books and articles published over the last few years, I have presented historical evidence suggesting that the public likely shared Bingham’s understanding when they discussed and ratified the Four- teenth Amendment in the years 1866 to 1868. In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment,3 Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the “fundamental- © 2019 Kurt T. Lash. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * E. Claiborne Robins Distinguished Professor of Law, University of Richmond School of Law. 1CONG. GLOBE, 42d Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham). 2 See KURT T. LASH, THE FOURTEENTH AMENDMENT AND THE PRIVILEGES AND IMMUNI- TIES OF AMERICAN CITIZENSHIP 279 (2014). 3 Randy E. Barnett & Evan D. Bernick, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 NOTRE DAME L. REV. 499 (2019). 591 \\jciprod01\productn\N\NDL\95-2\NDL202.txt unknown Seq: 2 2-JAN-20 13:28 592 notre dame law review [vol. 95:2 rights” reading of the Privileges or Immunities Clause.4 This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade.5 Rather than agreeing with John Bingham, Barnett and Bernick declare that they “side with Jacob Howard.”6 This is somewhat surprising, given that Republican Senator Jacob Howard opposed Bingham’s Privileges or Immuni- ties Clause,7 voted against submitting it to Congress for debate,8 and favored a far narrower version of Article IV, Section 1 than the one drafted by Bing- ham and ratified by the people of the United States.9 One presumes that Barnett and Bernick side with Howard, not because of his constitutional pref- erences, but because of one particular speech that Howard delivered to the Senate on May 23, 1866. On that day, acting as a last-minute stand-in for William Pitt Fessenden,10 Jacob Howard introduced the Fourteenth Amend- ment to the U.S. Senate.11 In his speech, Howard explained that the privileges and immunities of citizens of the United States included rights secured by the Comity Clause and described in cases like Corfield v Coryell,12 as well as rights secured “by the first eight amendments of the Constitution.”13 In my writing on the subject, I explain that Howard’s speech is perfectly consistent with the enumerated-rights reading of the Privileges or Immuni- ties Clause. Howard mentioned only enumerated constitutional rights as 4 See LASH, supra note 2, at 283–84 (describing Randy Barnett’s reading of the “Privi- leges or Immunities Clause” as the “Fundamental Rights reading”). 5 See Randy E. Barnett, After All These Years, Lochner Was Not Crazy—It Was Good, 16 GEO. J.L. & PUB. POL’Y 437, 438, 442 (2018) (“[T]here can be little doubt that, historically, the rights of property and contract were among the privileges or immunities of citizens of the United States to which the Fourteenth Amendment referred.”). By “absolute,” I mean rights receiving more than mere procedural (due process) or equal protection. 6 Barnett & Bernick, supra note 3, at 589. 7 See BENJAMIN B. KENDRICK, JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECON- STRUCTION 98 (1914). Although Howard had originally joined the majority of the committee in voting in favor of Bingham’s proposal, he then changed his mind and voted to remove Bingham’s proposal from the amendment, and voted against allowing Bingham to submit his proposal as a separate amendment. Id. at 87, 98–99. When Bingham convinced the majority of his colleagues to readopt his version, Howard joined two other members in voting against Bingham’s draft. See id. at 106. 8 Id. at 99. 9 Howard voted in favor of a version originally submitted by Robert Dale Owen, which read, “Section 1. No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.” Id. at 83. Howard’s preferred proposal established nothing other than a limited set of equal rights. Bingham’s proposal, on the other hand, protected absolute rights (the Privileges or Immunities Clause), Due Process Rights and the rights of Equal Protection. 10 As chair of the Joint Committee, Fessenden had been chosen to present the proposed draft to the House of Representatives, but he fell ill at the last minute. See CONG. GLOBE, 39th Cong., 1st Sess. 2764–65 (1866) (statement of Sen. Howard). 11 Id. at 2764–67. 12 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230). 13 CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard). \\jciprod01\productn\N\NDL\95-2\NDL202.txt unknown Seq: 3 2-JAN-20 13:28 2019] response to barnett and bernick 593 protected privileges or immunities. The right protected by the enumerated Comity Clause involves nothing more than the right of sojourning citizens to receive equal treatment when it comes to a limited set of state-secured rights (those designated as “fundamental” state-secured rights).14 The relative protection provided sojourning citizens by the Comity Clause, in other words, is simply one of a number of enumerated constitutional rights Howard named as protected by the Privileges or Immunities Clause. Barnett and Bernick insist that I have misread Howard’s speech. Accord- ing to Barnett and Bernick, Howard was not simply naming enumerated constitutional rights; he was declaring that the Privileges or Immunities Clause protected an unenumerated set of absolute “fundamental” rights. Moreover, they insist that this was the original public understanding of the Privileges or Immunities Clause. Although Barnett and Bernick decline in their article to explain exactly how the historical record supports their theory, they never- theless insist that the historical record does not support my enumerated- rights reading of the Privileges or Immunities Clause. The substance of their argument involves five basic claims: (1) The antebellum historical record does not contain evidence of a wide- spread understanding of the term “privileges and immunities of citizens of the United States” as referring solely to constitutionally enumerated rights. (2) There is no evidence that anyone in the Thirty-Ninth Congress understood the term “privileges and immunities of citizens of the United States” as referring solely to constitutionally enumerated rights. This includes the man who drafted the Clause, John Bingham. (3) It is anachronistic to view Reconstruction-era references to the Bill of Rights as referring solely to constitutionally enumerated rights since there was no fixed understanding of the term “Bill of Rights” during Reconstruction. (4) There is no evidence that those supporting the proposed amendment during the ratification process understood the Privileges or Immunities Clause as solely referring to enumerated rights. Otherwise advocates would have used this understanding to defeat claims that the proposed amendment guaranteed the unenumerated right to vote. (5) The enumerated-rights reading of the Privileges or Immunities Clause must be incorrect since such a reading would not authorize legislation like the 1866 Civil Rights Act. In this Article, I address each of these arguments in turn. I realize that Barnett and Bernick also make a number of claims regarding the postadop- tion historical record.

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