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The Privileges Or Immunities Clause Abridged: a Critique of Kurt Lash on the Fourteenth Amendment

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The Privileges Or Immunities Clause Abridged: a Critique of Kurt Lash on the Fourteenth Amendment Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2019 The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment Randy E. Barnett Georgetown University Law Center, [email protected] Evan Bernick Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2147 https://ssrn.com/abstract=3348680 Notre Dame Law Review, Vol. 95, Issue 2, 499. This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, and the Fourteenth Amendment Commons \\jciprod01\productn\N\NDL\95-2\NDL201.txt unknown Seq: 1 7-JAN-20 14:29 THE ORIGINAL MEANING OF “PRIVILEGES OR IMMUNITIES” THE PRIVILEGES OR IMMUNITIES CLAUSE, ABRIDGED: A CRITIQUE OF KURT LASH ON THE FOURTEENTH AMENDMENT Randy E. Barnett* & Evan D. Bernick** The Privileges or Immunities Clause of the Fourteenth Amendment reads: “No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States . .”1 Upon confronting this language, the first question most ask is what exactly are the “privileges or immunities of citizens of the United States”? It was this very question that Justice Ruth Bader Ginsburg put to attorney Alan Gura during oral argument in McDonald v. City of Chicago,2 as he was urging the Court to revive the Privi- leges or Immunities Clause to protect the right to keep and bear arms.3 “But I really would like you to answer the question that you didn’t have an oppor- tunity to finish answering, and that is: What other . rights? What does the privileges and immunities of United States citizenship embrace?”4 On May 23, 1868, Jacob Howard, senator from Michigan, former attor- ney general of Michigan, and the designated sponsor of the Fourteenth Amendment in the Senate, delivered a comprehensive and widely reported address in which he addressed this question.5 According to Howard, the © 2019 Randy E. Barnett & Evan D. Bernick. 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 authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution. ** Law Clerk to the Honorable Diane S. Sykes, United States Court of Appeals for the Seventh Circuit. 1 U.S. CONST. amend. XIV, § 1. 2 McDonald v. City of Chicago, 561 U.S. 742 (2010). 3 See Transcript of Oral Argument at 3–5, McDonald, 561 U.S. 742 (2010) (No. 08- 1521). 4 Id. at 8. 5HAMILTON GAY HOWARD, IN MEMORIAM: JACOB M. HOWARD OF MICHIGAN 1, 9 (1906). 499 \\jciprod01\productn\N\NDL\95-2\NDL201.txt unknown Seq: 2 7-JAN-20 14:29 500 notre dame law review [vol. 95:2 “privileges or immunities” of U.S. citizens consisted of two categories of “fun- damental guarantees.”6 In the first category were “the privileges and immunities spoken of in the second section of the fourth article of the Constitution.”7 Howard read a very lengthy passage from Justice Washington’s opinion in the 1823 case of Corfield v. Coryell,8 in which Washington defined the “privileges and immuni- ties” protected by Article IV, Section 2, as rights “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, indepen- dent, and sovereign.”9 Washington went on to explain that privileges and immunities may . be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happi- ness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.10 He then listed several “fundamental” rights that fell under these “general heads,” some of which rights are “[un]enumerate[d],” in the sense that they do not appear in the federal Constitution in itemized form—such as the rights to travel and to be free from discriminatory taxation.11 After reading from Washington’s Corfield opinion, Howard identified a second category of fundamental rights: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal 6CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard). 7 Id. at 2765. The Privileges and Immunities Clause appears at U.S. CONST. art. IV, § 2, cl. 1. 8CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard). 9 Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230). 10 Id. at 551–52. Washington was here reiterating the canonical formulation of natu- ral rights that was originally drafted in 1776 by George Mason for the Virginia Declaration of Rights: THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their poster- ity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. See Committee Draft of the Virginia Declaration of Rights and Edited by the Virginia Convention (May 27, 1776), CONSOURCE (emphasis added), https://www.consource.org/document/ committee-draft-of-the-virginia-declaration-of-rights-and-edited-by-the-virginia-convention- 1776-5-27/ (last visited Nov. 26, 2019). Mason’s formulation was adopted by several states for the declarations of rights in their own constitutions. See RANDY E. BARNETT, OUR REPUB- LICAN CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE 33–40, 67 (2016). In Washington’s words, these rights were “deemed to be fundamental.” Corfield, 6 F. Cas. at 552. 11 See Corfield, 6 F. Cas. at 551–52. \\jciprod01\productn\N\NDL\95-2\NDL201.txt unknown Seq: 3 7-JAN-20 14:29 2019] privileges or immunities abridged 501 rights guarantied and secured by the first eight amendments of the Constitution.”12 Then, after providing a list13 of enumerated personal rights, Howard summarized his understanding of the two categories of “privileges or immu- nities”: “Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution . .”14 Howard explained that an amendment was necessary to protect these privileges and immunities because, at present, “[t]hey d[id] not operate in the slightest degree as a restraint or prohibition on State legislation.”15 So, “[t]he great object of the first section of this amendment is . to restrain the power of the States and compel them at all times to respect these fundamen- tal guarantees.”16 It would seem clear that Howard understood the “privileges or immuni- ties of citizens of the United States”17 to include (1) the set of unenumerated rights that Corfield v. Coryell associated with the “privileges and immunities” of Article IV, Section 2; and (2) the personal rights enumerated in the first eight amendments to the Constitution, and that none of the “fundamental guarantees” in this “mass” may be abridged by states.18 This is the conven- tional way in which scholars have read Howard’s language.19 Howard’s role as spokesman for the Joint Committee on Reconstruction was a product of happenstance. William Pitt Fessenden, the chairman of the 12 CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard). 13 Id. The list appears to be a partial one, as Howard prefaces it with the phrase “such as.” Id. Howard omitted the rights of criminal defendants to confront witnesses, to have compulsory processes for obtaining witnesses in their favor, and to have the assistance of counsel for their defense. Id.; see also U.S. CONST. amend VI. Howard’s list also did not refer to what we call the Establishment Clause as any kind of right. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard). Lash has claimed that, though originally a federalism provision, by 1868, the Establishment Clause was thought to protect an individual right, but Howard’s omission undermines this claim. See Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 ARIZ. ST. L.J. 1085, 1154 (1995) (“By 1868, the (Non)Establishment Clause was understood to be a liberty as fully capable of incorporation as any other provision in the first eight amend- ments to the Constitution.”). 14 CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard) (emphases added). 15 Id. 16 Id. at 2766. 17 U.S. CONST. amend. XIV, § 1. 18 See CONG. GLOBE, 39th Cong., 1st Sess. 2765–66 (1866) (statement of Sen. Howard). 19 See, e.g., EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863–1869, at 108–09 (1990); Richard L. Aynes, Ink Blot or Not? The Meaning of Privileges and/or Immunities, 11 U. PA. J. CONST. L. 1295, 1312 (2009); Christopher R.
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