Balkinization

Why Jacob Howard Matters: A Message to Progressive Constitutional Scholars

In response to my post on the purposes behind the Fourteenth Amendment and the light they shed on the right to keep and bear arms, Deborah Pearlstein says she "need[s] some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second." I'm happy to comply. Although what I have to say is formally in response to Deborah's questions, in fact Deborah is really giving me an excuse to say a little bit about the constitutional history of Reconstruction, America's second founding. I offer these remarks to all of my fellow progressive constitutional scholars.

First, if you don't know much about the importance of the views of folks like Jacob Howard, John Bingham, Charles Sumner, or Thaddeus Stevens you need to learn more about them. They are as important to understanding the Fourteenth Amendment and America's new birth of freedom as Hamilton and Madison are to understanding the Federalist plan of 1787. The importance of Reconstruction has largely been submerged in Americans' understanding of their Constitution and its framers; in part this is due to the success of the post-bellum white south in resisting demands for racial equality and the north's desire for the political reconciliation of white men at the expense of blacks. (On which see Pamela Brandwein's 1999 book on the memory of Reconstruction). But every constitutional scholar, and particularly every progressive constitutional scholar, needs to know about this period in history and about the intellectual ideas that led to our country's second founding. Asking how much weight we should give to statements by Jacob Howard or John Bingham is like asking how much weight we should give to statements by James Wilson or James Madison or Gouverneur Morris or Alexander Hamilton. We idolize this latter group of men today, but we forget the men who gave us the constitutional text that we spend most of our time litigating, and that protects most of our constitutional rights against state and local governments, the Fourteenth Amendment. As I noted in the previous post, Howard was a pretty important framer of the Fourteenth Amendment. Not only was he a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment and not only was he the floor manager of the bill in the Senate, he was also charged by the Committee of Fifteen with the job of explaining the new amendment and its purposes before the Senate, which he did in a well-known speech in May of 1866, a speech, which, by the way, was covered in the press and even quoted verbatim in two of the New York papers of the time. The language I've quoted in my earlier post is from that speech.

One of the central concerns of the framers of the Fourteenth Amendment was protecting citizens from violations of their basic rights by state governments. This is pretty clear from Howard's remarks. There is little doubt from the history that, to these men, the right to keep and bear arms in self-defense was part of the basic rights that blacks needed. Blacks needed to defend themselves from southern whites who were literally terrorizing them, and southern governments were doing little to protect blacks from these attacks. Indeed, if anything, southern governments wanted to disarm blacks-- as they did during the era of slavery-- the better to keep them docile and helpless. The importance of the right to keep and bear arms made perfect sense to the people who drafted the Fourteenth Amendment.

Second, Deborah asks why we should care about what framers like Howard said if the Court ignored their views in the Slaughter-House cases in 1873. I believe that in understanding the meaning of the Fourteenth Amendment, The Slaughter-House cases deserve just about as much respect as Plessy v. Ferguson or United States v. Harris or the Civil Rights Cases, which is to say, very little indeed. Slaughter-House was an outrageous rewriting of the Fourteenth Amendment barely five years after its ratification, which took the amendment's central clause and turned it into a nullity. Liberals often tend to give Slaughter-House a pass, thinking that even if it is wrong it is not as bad as the cases that came afterwards, including Plessy and the Civil Rights cases. This is a mistake. Slaughter-House largely buys into the southern interpretation of the meaning of the Civil War-- reunion, the end of slavery and nothing more-- and it paves the way for much of the retrenchment that followed.

Because of Slaughter-House, lawyers ever since have had to do the work designed for the Privileges or Immunities Clause through the Due Process clause, work for which that clause was not well suited. This led to a focus on the still controversial idea of "substantive due process," a debate that would have little importance today if we had instead asked the proper question, and the one that the framers of the 14th amendment asked-- namely, what are the privileges and immunities of citizens of the United States, the basic rights that all citizens, black or white, male or female, enjoy by virtue of being citizens. Like the Civil Rights cases, Slaughter-House sought to neuter the emancipatory promise of the Fourteenth Amendment, sacrificing its ideals on the altar of states rights and a policy of non-interference with white-controlled southern governments that quickly replaced Republicans in the South.

Following Slaughter-House, the Supreme Court began a long process of denying women and blacks basic rights through the logic that the decision created. That same logic helped avoid what the framers of the Fourteenth Amendment clearly intended: The application and enforcement of basic rights against the former rebel states, state governments that had violated the rights not only of blacks but also of those whites who dared to disagree with the policies of the slaveocracy. In Slaughter-House and later cases, courts afraid of too much justice systematically downgraded the great promises of the Fourteenth Amendment. It was only in the twentieth century that the courts began to apply the Bill of Rights against recalcitrant state governments, this time under the fiction of "incorporation" through the due process clause, using the made-up test of "essential to a scheme of ordered liberty" offered in the 1937 decision in Palko v. Connecticut. However much we revere Benjamin Cardozo today, this test has nothing to do with the purposes behind the Fourteenth Amendment, and what Cardozo did in Palko was to rationalize a series of previous cases that, like Slaughter-House itself, had limited the scope of federal civil rights enforcement.

Finally, Deborah's attempted parsing of Howard's speech is ahistorical. Howard is not trying to make a distinction between fundamental rights on the one hand, and the Bill of Rights on the other. The personal rights found within the Bill of Rights were paradigmatic examples of fundamental liberties to the generation that framed the Fourteenth Amendment. The issue was not whether those rights mentioned in the Constitution were fundamental, but whether any other rights were as well. That is why Howard looked to Corfield v. Coryell to emphasize the existence of natural rights that are not enumerated, as the Bill of Rights are (and as the right to habeas corpus, the right against bills of attainder, and the right against ex post facto laws are.). Howard's speech, arguing for both the enforcement of the Bill of Rights against the states and for the protection of natural rights, makes perfect sense against the background of abolitionist and Republican thinking of the time. And it is of great importance when we consider the question of unenumerated rights today. The people who drafted the Fourteenth Amendment believed that governments existed to protect natural rights, and they created the Privileges or Immunities Clause to protect those rights whether or not they were specifically listed in the Constitution's text.

If I could make one request of progressive constitutional scholars, it would be this: there is a very rich and important history of civil rights and civil liberties buried in our country's second founding to which most constitutional scholars pay relatively little attention. Instead we spend most of our time studying and worshiping the men who created a Constitution with slavery, rather than the men who tried to rid us of that awful curse. The framers of the Fourteenth Amendment were hardly perfect, and many were not very egalitarian by our present standards, but they believed that equality and equal liberty were central constitutional values, and they helped set us on a better path. Progressive scholars would do well to study the history of the second founding, which is the source of our some of our Constitution's most important and enduring commitments to equality, anti-subordination, and equal citizenship. They will be both surprised and delighted by what they find there.

Posted 9:17 AM by JB [link]

Comments:

I don't know if Paul Brest is still around. Last I had heard, he was chairing an extensive study on the impact, if any, of Sarbanes Oxley on non-profits. But if he is, I wish he might respond to apply his 1980 article on "original intent" to Jack's commentary. Is what Jack is doing what Brest had so effectively critiqed in his article as to "original intent" that caused originalists to shift gears to "original meaning," "original meaning," "original understanding," "original expectations" and any other "original du jour," with the result that some claim the Constitution has been lost? Granted, there is a lot of history that Jack recites. But does it provide the correct answer in the interpretation of the 14th Amendment? I asked on an earlier post by Jack whether his shift from a living constitutionalist to a variation of an originalist has further shifted. Is there an in between category of "progressive constitutional scholar"? I share Jack's sentiments, by the way, as in my view originalism does not provide an answer.

So Paul Brest, if you're out there, chime in.

# posted by

Shag from Brookline : 10:16 AM

Excellent post. As I see it, Howard is relevant because he helps us understand what "of" means in "the privileges or immunities of citizens of the United States." And Slaughterhouse was way wrong about that.

(I still like to refer to Slaughterhouse, though, not Slaughter-House. If it were the name of the parties, that would be one thing, but if we're referring to the case with a description, isn't it OK to use modern rules for the spelling of compound nouns?)

# posted by

Chris : 12:29 PM

Asking how much weight we should give to statements by Jacob Howard or John Bingham is like asking how much weight we should give to statements by James Wilson or James Madison or Gouverneur Morris or Alexander Hamilton.

Well, OK, I'll take this one step further: Why should we give much weight to statements by James Wilson or James Madison or Gouverneur Morris or Alexander Hamilton? I thought that was bad old original intent originalism, which is now (allegedly) moribund. If what we care about is the original public meaning of constitutional text, then aren't the potentially idiosyncratic views of various legislators and convention attendees only at best a starting point? We'd need evidence that a large number of their contemporaries would have all read the clause the same way. Pointing to a single speech doesn't seem likely to do that, even if it's a very clear and profound explanation of the text. Indeed, the more profound and subtle it is, perhaps the *less* weight it should be accorded as original *public* meaning.

# posted by

Bruce Boyden : 1:09 PM

"If what we care about is the original public meaning of constitutional text, then aren't the potentially idiosyncratic views of various legislators and convention attendees only at best a starting point?"

That's right. Howard's views are only a defeasible indication of the textually-expressed sense.

"We'd need evidence that a large number of their contemporaries would have all read the clause the same way."

This doesn't seem right to me. If a reading isn't rebutted and is sensible in light of the text, why think that anyone else disagreed? In the absence of evidence, we should assume non-idiosyncracy, I think. Certainly for Howard, I don't know of any good evidence he was some sort of weirdo. Bingham, maybe a bit, but I don't think Howard.

# posted by

Chris : 1:35 PM

It is a shame that we spend so much more time (and even there, focusing on a few people) on the original framers while largely ignoring the second set. That alone justifies some focus.

Second, it is already done with the first set. Deciding how much we should worry about their views and to what degree of specificity is one thing. But, few really say "they don't matter."

Finally, those who control the federal courts -- see the gun ruling below -- focus on history all the time. To be able to engage them (other than "that just doesn't matter"), we need to learn about it too.

# posted by

Joe : 1:50 PM

Hey, Pearlstein agrees with me on how to spell Slaughterhouse!

# posted by

Chris : 3:08 PM

Howard might not be a "weirdo," but he might have specialized knowledge not available to your average contemporary interpreter. For Howard, "privileges and immunities" means Corfield v. Coryell plus the first 8 amendments. How many of Howard's contemporaries even knew what Corfield said -- not his legislative contemporaries, but ordinary people? If the answer is "not many," then it seems Howard's somewhat specialized reading of "privileges and immunities" is not useful in determining the "original public meaning" of the phrase.

Re: Joe, that sounds like a "command theory" of constitutional interpretation -- which isn't necessarily bad, particularly if you're a practitioner, but I don't think it's Jack Balkin's theory.

# posted by

Bruce Boyden : 3:20 PM

"Howard ... might have specialized knowledge not available to your average contemporary interpreter."

I think the relevant inquiry is what sense the text would convey to a hypothetical informed member of the public. To stress that we're talking about public meaning just means we're talking about the generally-accessible meaning of the text, and not the private understanding of particular people. The original public meaning (I'd prefer, the original textually-expressed sense) doesn't mean the meaning actually entertained by a randomly-selected member of the population in 1866. If a term is obviously a legal term, then what's relevant is the meaning attached to the term by people who know legal terminology. (That's why, for instance, I survey legal treatises to see how they use "protection of the laws.") And legally-informed people in 1866 would know about Corfield. Non-legally-informed people would, I imagine, defer to legally-informed people, in the absence of some reason to think that "privileges or immunities of citizens of the United States" means something special to, say, butchers or bakers or candlestick-makers.

"For Howard, 'privileges and immunities' means Corfield v. Coryell plus the first 8 amendments."

I don't think "Bill of Rights plus Corfield" is quite Howard's definition of "privileges or immunities of citizens of the United States." I think the definition is something like "the rights generally possessed by all citizens of the United States," and the Bill of Rights and Corfield stuff fills in what that amounted to.

# posted by

Chris : 3:59 PM

"I think the relevant inquiry is what sense the text would convey to a hypothetical informed member of the public."

I think once you concede this the slope toward original intent originalism starts to get slippery. The question is how slippery -- i.e., how narrow is the class of relevant interpreters? The danger is that the class of "informed" observers might be so narrow that it really just boils down to those few scraps of written evidence that we actually have -- treatises, speeches by drafters introducing bills in Congress, etc. -- the same old stuff that original intent originalists used to use.

"[L]egally-informed people in 1866 would know about Corfield." Even if "original public meaning" is interpreted to mean "original lawyers' meaning," I'm not sure that gets all the way to where you and Balkin are trying to go. What percentage of 1866 lawyers would read "privileges and immunities" to include the rights listed in Corfield or the first 8 amendments? There are lots of lawyers today who know practically zilch about constitutional law -- probably the vast majority. Can we be certain that lawyers in 1866 were, as a group, better informed? If not, then it would seem that you would need to narrow the class even further -- perhaps to "legally informed people" of the right sort -- constitutional law experts such as, perhaps, Howard himself. But if the class gets too small, it becomes unclear what work "original public meaning" is doing that wasn't already done by "original intent."

# posted by

Bruce Boyden : 5:01 PM

"The danger is that the class of 'informed' observers might be so narrow that it really just boils down to those few scraps of written evidence that we actually have..."

We have a whole lot more than a few scraps, especially when we consider, as I think we should, the subsequent interpretations of the Reconstruction Congresses. There are a huge number of treatises that use the phrase "protection of the laws" to refer to law-enforcement and remedial services, for instance, and they aren't private communications among those who enacted the 14A. They are public documents, published to the world, not difficult to understand, that supply an enormous amount of evidence of the sense expressed by the consitutional language at the time it was composed.

"There are lots of lawyers today who know practically zilch about constitutional law -- probably the vast majority."

Really? It was a required course even for us at Yale! It's still on the bar exam and everything. You didn't have to be any kind of constitutional-law expert in 1866 to know about Corfield--all you had to do was know about Article IV and then ask someone what the leading precedent was defining what "privileges and immunities" meant there. And as Balkin points out, Howard's speech was printed in the New York Times. The paper published an editorial saying they liked his discussion of privileges or immunities. In lieu of evidence of any contrary understanding, I'd say it's extremely likely that a great many ordinary people, with no special training at all, agreed with Howard.

But the numbers of people don't matter. What matters is what sense is expressed by the text. Howard gives one perfectly sensible explanation from someone well-situated to know the sense expressed by the constitutional language, and until someone points to other evidence pointing to a different explanation, I'll go with Howard.

# posted by

Chris : 5:41 PM

I missed the reply to my comments the first time, so this is late, but fwiw ...

The link describes the 'divine command' theory thusly: "Divine command theory is the metaethical theory that an act is obligatory if and only if, and because, it is commanded by God."

I'm unsure how my comments suggest I support this. I said three things.

One, it would be helpful for us to have a more complete understanding of the history of the Constitution. More understanding not just of some behind the original document.

Two, people already in some fashion rely on original understanding (or whatever you want to call it). I actually was agnostic on how much we should. I did imply it was inconsistent in some fashion to rely only on the OU of say Madison over Howard. If anything, the second group was more democratic and otherwise worthy of respect in some ways.

My agnostic sentiment underlines that I did not mean to supply any "if and only if" sentiments as to what the 'gods' accept. My third point was pragmatic. Those who control the courts use history; it is fruitful to be able -- as their colleagues often do -- to answer them.

I think Balkin is at least somewhat pragmatic in that fashion too. Again, where is this normative judgment that think we should only be guided by what the "gods" think?

# posted by

Joe : 11:11 AM