Balkinization: The Privileges or Immunities Clause and Unenumerated Fundamental Rights

The Privileges or Immunities Clause and Unenumerated Fundamental Rights

Doug Kendall

For the last forty years, the Court’s fundamental rights jurisprudence developed under the Due Process Clause has been dogged by persistent claims of illegitimacy. Roe v. Wade has been the target of most of these attacks, but the claims made by Roe’s attackers go well beyond Roe or even abortion rights. Justice Scalia – the most fervent of the challengers – argues that the protection of unwritten fundamental rights is simply not lawyer’s work. “The tools of this job,” he says “are not to be found in the lawyer’s – and hence not the judge’s – workbox.” But one need not reach for tools beyond Scalia’s favorites—text and history—to see that judges properly protect substantive fundamental rights not enumerated elsewhere in the Constitution. On Scalia’s own terms, his objections fall flat when faced with the text and history of the Privileges or Immunities Clause.

The words of the Privileges or Immunities Clause protect the substantive fundamental rights of all Americans. As Senator Jacob Howard said in the Senate debates on the Amendment: “[i]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .” Many others said the same thing, and the Amendment’s opponents never once contradicted them.

The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.

What should be striking about this list of protected rights is how closely it dovetails with the results of the Court’s substantive due process jurisprudence. The rights of heart and home that the Court’s substantive due process cases have vindicated beginning with Meyer v. Nebraska are the very rights that the framers of the Fourteenth Amendment sought to guarantee for the newly freed slaves. The framers recoiled at the treatment of slave families – parents were denied the right to marry and often separated, children were taken from them, and education and free worship were limited or prohibited altogether – and they wrote the Privileges or Immunities Clause to protect these liberties of heart and home.

Thus, the results the Court has reached under substantive due process need not be jettisoned; the Court simply has focused on the wrong clause of the Fourteenth Amendment. That should make the task of developing a new Privileges or Immunities jurisprudence considerably easier. The Court should not (and need not) start from scratch; it can turn to the lessons learned over 135 years of wrestling with the questions about what constitutes protected substantive liberty.

Even the most controversial of the Court’s substantive due process precedents – Roe and Lawrence v. Texas – flow logically from the substantive fundamental rights the framers of the Fourteenth Amendment wrote the Privileges or Immunities Clause to secure. Both cases, it should be mentioned, are about equality as well as substantive liberty, but our focus here is on the Court’s recognition of a protected liberty. As Jack Balkin and others have recognized, Roe protects a right of bodily integrity. A woman’s right to terminate a pregnancy flows out of her right to control her body. The right of bodily integrity has a long heritage as a core aspect of liberty. The framers of the Privileges or Immunities Clause called this right the right of personal security, and there is little doubt that they considered it one of the privileges of national citizenship. Lawrence, too, is rooted in the substantive liberties that the framers of the Privileges or Immunities Clause sought to protect. Lawrence held that the rights of heart and home recognized by the framers and protected since Meyer apply to all Americans, regardless of sexual orientation.

There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. This has been doubly damning. On the Court, Justice Scalia has gotten far too little push back on his reading of the Constitution’s text and history – a reading that views the Reconstruction Amendments as minor tinkering around the edges of our original Constitution. No one on the Court consistently challenges Scalia on how to read the Constitution’s text and history. Off the Court, Republican presidents and politicians argue that we need more Justices like Scalia who are committed to the Constitution’s text and history, while Democratic politicians all too often talk about the results of cases they care about, not the Constitution. For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.

That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights. Progressives have the chance to rejuvenate the Clause in the Fourteenth Amendment that was meant to protect the substantive liberty of all Americans, and to show how the Constitution’s text and history support the Supreme Court’s existing fundamental rights jurisprudence. With a text that explicitly protects the substantive liberties of all Americans finally back in the Constitution, claims that the Court has no textual basis to safeguard substantive constitutional rights would lose their force, and the protection of fundamental constitutional rights would be on secure textual footing.

(David Gans is Constitutional Accountability Center's Human and Civil Rights Director, Doug Kendall is CAC's President. This post is the last of a series of three posts here introducing the organization's Gem of the Constitution report, the first report in CAC's Text and History Narrative Series. We are grateful to Jack for the opportunity to share our views with the Balkinization community. For more on the progressive force of the Constitution's text and history, visit our blog, http://www.textandhistory.org/).

Posted 12:32 PM by Doug Kendall [link]

Comments:

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# posted by

Bart DePalma : 1:03 PM

The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.

What should be striking about this list of protected rights is how closely it dovetails with the results of the Court’s substantive due process jurisprudence. The rights of heart and home that the Court’s substantive due process cases have vindicated beginning with Meyer v. Nebraska are the very rights that the framers of the Fourteenth Amendment sought to guarantee for the newly freed slaves. The framers recoiled at the treatment of slave families – parents were denied the right to marry and often separated, children were taken from them, and education and free worship were limited or prohibited altogether – and they wrote the Privileges or Immunities Clause to protect these liberties of heart and home...

Even the most controversial of the Court’s substantive due process precedents – Roe and Lawrence v. Texas – flow logically from the substantive fundamental rights the framers of the Fourteenth Amendment wrote the Privileges or Immunities Clause to secure. Both cases, it should be mentioned, are about equality as well as substantive liberty, but our focus here is on the Court’s recognition of a protected liberty. As Jack Balkin and others have recognized, Roe protects a right of bodily integrity. A woman’s right to terminate a pregnancy flows out of her right to control her body. The right of bodily integrity has a long heritage as a core aspect of liberty. The framers of the Privileges or Immunities Clause called this right the right of personal security, and there is little doubt that they considered it one of the privileges of national citizenship. Lawrence, too, is rooted in the substantive liberties that the framers of the Privileges or Immunities Clause sought to protect. Lawrence held that the rights of heart and home recognized by the framers and protected since Meyer apply to all Americans, regardless of sexual orientation.

This argument breaks down in the final paragraph.

If the P&I Clause is to be applied as is substantive due process, then the unenumerated rights protected by the P&I Clause are limited to those that are deeply rooted in the history and traditions of the United States.

Neither a right to abortion or sodomy can be honestly said to be deeply rooted in the history and traditions of the United States.

Likewise, the P&I could not be the basis for a future Court to write other novel and unrooted "rights" into the Constitution.

# posted by

Bart DePalma : 1:04 PM

I'm kind of with Mr. DePalma. Surely the only unenumerated rights that can be discovered with the tools of legal analysis are long-standing ones, i.e., ones with precedent. So the privileges and immunities clause can only serve a conservative function of preventing legislative innovations that trench on established rights, never a progressive function of establishing new rights.

As others have noted, there is a fundamental dishonesty about the Gans/Kendall analysis, because it all depends on the level of generality with which a right is described. So if the right in question is "child-bearing" then there is no protection for abortion, but if it is "reproductive freedom" then abortion is protected. A similar ambiguity would attend gay marriage, affirmative action, or any other hot button issue. There is no legal analysis that determines what the appropriate level of generality should be.

# posted by

sean : 1:47 PM

Mr. DePalma,

This argument breaks down in the final paragraph.

If the P&I Clause is to be applied as is substantive due process, then the unenumerated rights protected by the P&I Clause are limited to those that are deeply rooted in the history and traditions of the United States.

Neither a right to abortion or sodomy can be honestly said to be deeply rooted in the history and traditions of the United States.

Not necessarily true. At common law, it was a "very heinous misdemeanor" to abort a fetus post-quickening, but not before. (it should also be noted it post-quickening abortion was not considered homicide, either). The first anti-abortion statute to alter the common law, and ignore the quickening differentiation, was 1841 in Maine. So, your statement is not accurate. There certainly is evidence to suggest abortion, pre-quickening, was an accepted and permissible action at the time of the framing. And considering the state of women's rights back then, the existence of the ability to abort pre-quickening is rather significant.

And you never responded regarding Lawrence in the last thread. While I don't know if there was a right to sodomy, the Texas statute was a violation of equal protection, and you have yet to put forth a textualist reason why it wouldn't be. I criticized Scalia's dissent on the EPC violation, but never heard a retort from you.

Likewise, the P&I could not be the basis for a future Court to write other novel and unrooted "rights" into the Constitution.

This depends on the interpretive method, and is by no means the asserted fact you make it out to be. We've been through this before.

sean,

I'm kind of with Mr. DePalma. Surely the only unenumerated rights that can be discovered with the tools of legal analysis are long-standing ones, i.e., ones with precedent. So the privileges and immunities clause can only serve a conservative function of preventing legislative innovations that trench on established rights, never a progressive function of establishing new rights.

Not necessarily true. It depends on the proper role of the courts in our democracy. Should telecommunications be protected by the 4th amendment? obviously, a little interpretation is required, but it would seem more in harmony with the nation's principles to prevent government encroachment on private phone conversations, even if the founders could not foresee this.

What some may call a "new" right may just be application of traditional principles to modern times. I have argued previously this is exactly what the framers of the Constitution intended the function of the courts to be vis-a-vis individual rights. Much like your very poignant second paragraph, the scope of a generality may depend on the eye of the beholder, but so are the concepts of "new" and "established"

# posted by

nerpzillicus : 2:00 PM

"I'm kind of with Mr. DePalma."

I trust this is not a reenactment of Lawrence v. Texas.

# posted by

Shag from Brookline : 3:02 PM

As others have noted, there is a fundamental dishonesty about the Gans/Kendall analysis, because it all depends on the level of generality with which a right is described.

Assume that we all agree that the level of generality is the key point. I see no reason in principle for courts to limit themselves to the more specific phrasing rather than the more general.

Surely the only unenumerated rights that can be discovered with the tools of legal analysis are long-standing ones, i.e., ones with precedent.

That depends on the level of generality.

# posted by

Mark Field : 3:19 PM

nerpzillicus:

The fact that abortion and sodomy were not always criminalized is not a basis for arguing that society and the law believed that there was a fundamental right to engage in such acts.

Rather, this suggests that whether to criminalize abortion or sodomy was a matter for legislatures, and in the time of common law crimes - the courts, to decide.

# posted by

Bart DePalma : 5:34 PM

"progressives have ceded the Constitution’s text and history to conservatives"

This can be exaggerated. Progressives think the text of the 11A is part of the reason modern day state immunity jurisprudence is suspect. The text of habeas, the 4A, the EPC, et. al. all were used by progressives in major constitutional debates in the last few years.

EPC was used to promote the rights of homosexuals, e.g., Romer, explicitly, Lawrence, in part. Even in the abortion context, the text was used in various ways, equal protection in particular (including in funding matters), though free speech (see, e.g., Rust v. Sullivan, dissenting) also was used too.

It might have been underused at times, but precedent is a natural resource when dealing with the law: you use what is widely accepted, you don't re-invent the wheel.

"long-standing ones"

Mark Field answers this. The basic principles, as shown by Meyer v. Nebraska et. al. are 'long standing' as compared to specific application. I don't see the force of that argument, honestly. Taken seriously, it would rob the Constitution, as MF notes, of its very core purpose -- broad provisions that meet the test of time.

[The 9A also is applicable here and should be cited by the authors repeatedly, since the two provisions go together. Unenumerated rights are not found by archeological searches but by a common law approach.]

I must also say that a post respecting non-citizens would be useful in this discussion. A provision protecting "persons" is being said to be ill advised, after all.

I also don't think the 2A fight will be so fundamental. It will likely rise and fall on incorporation, the SC not re-inventing the wheel. Again, Scalia opposed a broad reading of fundamental rights (see Troxel v. Granville) just like Black, no matter where they come from. He was the point man in Heller. Why would he support this?

# posted by

Joe : 6:47 AM

This link works:

text and history of the Privileges or Immunities Clause

# posted by

NAL : 1:05 PM

The Constitution's Supremacy Clause says,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Has anyone ever explained why the Supremacy Clause does not "incorporate" the Bill of Rights into the federal constitutional restrictions on state and local governments? Interpreting the Bill of Rights is often hard enough without also having to worry about whether the Bill of Rights applies to the states.

Also, I must again complain that the opening post did not distinguish between the Privileges or Immunities Clause and the Privileges and Immunities Clause:

The P or I Clause, Amendment XIV, Section 1, Clause 2, says,
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States .

The P and I Clause, Article IV, Section 2, Clause 1, says,
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Again, some commenters are adding to the confusion by calling the P or I Clause the "P & I" Clause or the "P and I" Clause.

At minimum, the original post should say, "not to be confused with the P and I Clause of Art. IV."

From now on, to help avoid confusion, I am going to use the titles "Amend. XIV P or I Clause" and "Art. IV P and I Clause," and I recommend that others do the same. IMO the two clauses are redundant and the difference between them is attributable to changing views of state citizenship vis-a-vis US citizenship. The reasons why I opposed the Equal Rights Amendment were that I thought it was redundant of protections already in the Constitution and that adding it to the Constitution would therefore imply that the Constitution does not mean what it says.

# posted by

Larry Fafarman : 4:50 AM

Why would the Supremacy Clause by its own force "incorporate" the Bill of Rights? Does this include the 1A which expressly says "Congress?" Did John Marshall, who was "there," lie in Barron v. Baltimore when he said otherwise?

I have written of my (unfortunate) tendency to say P&I, but the guest bloggers here did say quote the 14A correctly. I also repeat one comment I made as to the 14A. It expressly gave Congress power to enforce the other articles.

Such power to enforce national privileges and/or immunities was a minority view before 1868. The 14A expressly made it the law of the land. Similarly, the 1A arguably is "redundant" in that Congress never had the lawful power to abridge natural rights.

But, in practice, this was open to debate and its ratification was deemed useful to add force to security of rights.

# posted by

Joe : 2:40 PM

I should add that "such" in my last remark includes national power to secure a broad realm of rights that once was generally deemed mostly the role of the states to secure.

That is, even if the rights existed ("we hold these truths to be self-evident"), the states -- even for U.S. citizens -- had only the moral responsibility to uphold them. Now, Congress could pass laws etc. to enforce them.

Redundant? Don't think so.

# posted by

Joe : 2:47 PM

Joe said (2:40 PM) --
>>>>>> Why would the Supremacy Clause by its own force "incorporate" the Bill of Rights? Does this include the 1A which expressly says "Congress?" <<<<<<

The Constitution is often not interpreted literally -- for example, nothing in the Constitution expressly prohibits the states from interfering with or burdening interstate commerce without the permission of Congress, so the courts invented such a prohibition which they call the "dormant commerce clause." The term "speech" in the 1st Amendment is broadly interpreted to include written expression and even symbolic expression. It makes no sense to assume that the Framers intended that the 1st Amendment should apply only to Congress, and if the Framers had such a bad intention, IMO it is OK for courts to overrule it.

>>>>>>> Did John Marshall, who was "there," lie in Barron v. Baltimore when he said otherwise? <<<<<<<

Yes, he lied. The Barron v. Baltimore decision says nothing about the Supremacy Clause, and the Bill of Rights amendment in question in that decision, the 5th Amendment, says nothing about Congress, the federal government, or the states. Applying to the 5A your above reasoning about the 1A, the 5A should not be restricted to Congress (or the federal government) because the 5A makes no such express restriction.

>>>>>> Such power to enforce national privileges and/or immunities was a minority view before 1868. <<<<<<

It may have been a minority view then (it was a minority view in the Dred Scott decision), but IMO the only reasonable interpretations of the Supremacy Clause and the Art. IV P and I Clause are that they "incorporate" the Bill of Rights into federal constitutional restrictions on the states. The Supremacy Clause is clear:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (emphasis added)

And distinguishing between the Amend. XIV P or I Clause and the Art. IV P and I Clause requires nitpicking, hairsplitting distinctions between such terms as "citizens of the United States" and "Citizens in the several States."

>>>>>> The 14A expressly made it the law of the land. <<<<<<<

Did it really? There is still arguing going on over whether the 14A's P or I Clause incorporates the Bill of Rights.

>>>>>> Similarly, the 1A arguably is "redundant" in that Congress never had the lawful power to abridge natural rights. <<<<<<<

Who decides which rights are "natural" rights?

# posted by

Larry Fafarman : 1:14 AM

Well, this is late in the game, but here we go ...

The Constitution is often not interpreted literally ... It makes no sense to assume that the Framers intended that the 1st Amendment should apply only to Congress, and if the Framers had such a bad intention, IMO it is OK for courts to overrule it.

The first sentence is true enough. The second part is not. The fundamental purpose of the BOR was to limit the power of the federal gov't, and it especially makes "sense" to think so when the provision expressly says "Congress." Now, we interpret this to include all federal activity, so it is not taken literally (and the word "no" is not taken so either), but words have some meaning all the same.

Likewise, this was the general understanding of the era, including as to both speech and religion. Jefferson, a great supporter of the BOR, recognized the states had more power over libel convictions, for instance, than Congress. He also was against state establishments, but recognized the few express ones that lingered were not in violation of the 1A.

Yes, he lied. The Barron v. Baltimore decision says nothing about the Supremacy Clause, and the Bill of Rights amendment in question in that decision, the 5th Amendment, says nothing about Congress, the federal government, or the states. Applying to the 5A your above reasoning about the 1A, the 5A should not be restricted to Congress (or the federal government) because the 5A makes no such express restriction.

Madison tried to get an amendment passed that expressly limited the power of the states, including in respect to certain rights of the accused the BOR secures. It failed. The use of "Congress" in the 1A is an easy refutation of your argument but history and other matters refutes the rest as well.

He could have cited the Supremacy Clause and still have the same result. If the BOR only applies to the feds, cites to the SC don't help. It's like citing a Art. I, sec. 9 limitation, which only applies to Congress. Notice how a few are repeated in Art. I, sec 10, which only applies to the states.

Me: Such power to enforce national privileges and/or immunities was a minority view before 1868.

It may have been a minority view then (it was a minority view in the Dred Scott decision), but IMO the only reasonable interpretations of the Supremacy Clause and the Art. IV P and I Clause are that they "incorporate" the Bill of Rights into federal constitutional restrictions on the states.

The dissents in Dred Scot was not concerned with this issue. The two concerned citizenship per se, congressional power over the territories, and so forth. Taney spoke of p&i of those who live in territories. If Dred Scot was a citizen, the majority would agree he had a "privilege" to sue in federal court. The ability of Missouri to not apply the 1A etc. to their own citizens was not the issue.

I don't think it was the "only reasonable" interpretation, but at the very least it surely wasn't the official one or the one widely accepted, and not only because the Supreme Court held otherwise. So, even if you think it redundant, it wasn't for that reason alone, since it overruled the widely recognized (and officially accepted) narrow interpretation.

In fact, fwiw, even the Federalist Papers focuses on the state equality Art. IV understanding, using it as a way for out of state visitors to be treated equally to state citizens. Not as an independent source of rights.

The Supremacy Clause is clear

But, certain provisions only apply to certain people. Thus, there are two provisions against ex post facto laws, not one. One is a section applied to the feds, the other to the states.

And distinguishing between the Amend. XIV P or I Clause and the Art. IV P and I Clause requires nitpicking, hairsplitting distinctions between such terms as "citizens of the United States" and "Citizens in the several States."

It helps if we accept your minority view as the "sensible" one. OTOH, if we take what was the well accepted view, the usual way one is required to treat constitutional provisions or rather the need for amendments,* the two provisions have different purposes. In fact, the 14A phrasing has much more clarity of purpose as to what the group of citizens in question are getting from it.

Me: The 14A expressly made it the law of the land. <<<<<<<

Did it really? There is still arguing going on over whether the 14A's P or I Clause incorporates the Bill of Rights.

The fact a provision is still being debated doesn't change what it "expressly" does.

Me: Similarly, the 1A arguably is "redundant" in that Congress never had the lawful power to abridge natural rights. <<<<<<<

Who decides which rights are "natural" rights?

The Declaration of Independence expressed the commonly understood premise that there are natural rights; this is "self evident." A few, including freedoms like honoring one's God, were easy calls for most people. But, who decides? Any number of people. That's a big debate, of course.

---

* I personally don't think we needed a separate amendment to bar poll taxes for federal elections. In fact, the Supremes held a state poll tax unconstitutional without citation to the 24A.

Similarly, I think Pollock was wrongly decided. I don't think you need the 16A to allow the income tax. But, that was one way to make it crystal clear you could.

# posted by

Joe : 9:42 AM

Two more things.

(1) "citizens of the United States" and "Citizens in the several States" at the very least symbolically are different terms.

(2) Section 5 of the 14A is also very important. It expressly gave Congress, and by implication the courts, the power to enforce privileges or immunities of U.S. citizens.

Cf. the understanding that there was only a moral obligation to return fugitives to justice pursuant to Art. IV.

# posted by

Joe : 5:49 PM

Joe said (9:42 AM) --
>>>>>> The fundamental purpose of the BOR was to limit the power of the federal gov't, and it especially makes "sense" to think so when the provision expressly says "Congress." . . . .The use of "Congress" in the 1A is an easy refutation of your argument <<<<<<<

You are talking out of both sides of your mouth -- first claiming that saying "Congress" (or making some other reference to the federal government) means something and then claiming that not saying "Congress" does not mean anything.

I have given examples of how the Constitution is often not interpreted literally: the "dormant" commerce clause and the extension of freedom of speech to include written speech and symbolic speech.

It makes no sense to allow state and local governments -- or even private entities -- to trample on rights protected by the Bill of Rights.

>>>>>>>It may have been a minority view then (it was a minority view in the Dred Scott decision), but IMO the only reasonable interpretations of the Supremacy Clause and the Art. IV P and I Clause are that they "incorporate" the Bill of Rights into federal constitutional restrictions on the states.

The dissents in Dred Scot was not concerned with this issue. <<<<<<<<

The dissent of Justice Benjamin Curtis discussed the Art. IV P and I Clause:

"The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Nowhere else in the Constitution is there anything concerning a general citizenship, but here, privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship, how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the United States. They are to be citizens of the several States, and as such, the privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by them. It would seem that, if it had been intended to constitute a class of native-born persons within the States who should derive their citizenship of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. [p581]

And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons? Simply as citizens of each State.

Curtis wrote above about "the privileges and immunities of general citizenship, derived from and guarantied by the Constitution." That statement sounds like it "incorporates" the Bill of Rights into federal constitutional restrictions on the states.

>>>>>>> In fact, fwiw, even the Federalist Papers focuses on the state equality Art. IV understanding, using it as a way for out of state visitors to be treated equally to state citizens. Not as an independent source of rights. <<<<<<

"Intentionalism," the idea that interpretations of the Constitution should be based on hidden intentions of some of the Framers, is the most disreputable kind of originalism. Intentionalism -- among other bad things about it -- destroys objectivity in the interpretation of history; for example, intentionalist interpretations of the establishment clause have portrayed the Founders as everything from a bunch of bible-pounding holy-rolling fundies to a bunch of godless blasphemous bible-burning atheists.

>>>>>>The Supremacy Clause is clear

But, certain provisions only apply to certain people. Thus, there are two provisions against ex post facto laws, not one. One is a section applied to the feds, the other to the states. <<<<<<<

That's ridiculous -- claiming that the Supremacy Clause does not mean what it says just because there are separate ex post facto provisions for the states and the feds.

>>>>>>> It helps if we accept your minority view as the "sensible" one. OTOH, if we take what was the well accepted view . . . <<<<<<<

The Dred Scott decision was certainly not "well accepted" by Justice Curtis -- he resigned from the Supreme Court because of disagreements over the decision.

>>>>>> The fact a provision is still being debated doesn't change what it "expressly" does. <<<<<<

I never said that it does.

# posted by

Larry Fafarman : 7:23 PM

You are talking out of both sides of your mouth -- first claiming that saying "Congress" (or making some other reference to the federal government) means something and then claiming that not saying "Congress" does not mean anything.

I said that the 1A "especially" makes your argument dubious. It is an easier call. The fact the rest of the BOR requires more than text alone to make my case does not at all mean the word "Congress" suddenly means nothing. Your are claiming I did something I did not.

I have given examples of how the Constitution is often not interpreted literally: the "dormant" commerce clause and the extension of freedom of speech to include written speech and symbolic speech.

I also gave examples of the point, such as the 1A applying to the President or the use of "no" is a less than absolute way.

It makes no sense to allow state and local governments -- or even private entities -- to trample on rights protected by the Bill of Rights.

Why? The people of the era were particularly concerned that a new powerful national government would trample on their rights. They had state constitutions that seem to secure rights as to their own governments, in fact, most of the BOR was already written in most state constitutions, which was one reason why they wanted it in the federal Constitution to apply to the federal government, the main concern of the new Constitution.

Time, however, showed that trusting states wasn't enough. This is a primary reason for the 14A, including security as to "due process of law" which already was written (as to the feds) in the 5A.

Curtis wrote above about "the privileges and immunities of general citizenship, derived from and guarantied by the Constitution." That statement sounds like it "incorporates" the Bill of Rights into federal constitutional restrictions on the states.

Again, the P&I at issue were not the right of Missouri over their own citizenship, but those such as suing in federal court, treatment of citizens in the federal territory and perhaps treatment of out of state citizens when they travel to other states. Taney himself spoke of the BOR applying to the federal territories. The idea Curtis, putting aside the fact he was fairly conservative, was rejecting Barron v. Baltimore is a leap.

"Intentionalism," the idea that interpretations of the Constitution should be based on hidden intentions of some of the Framers, is the most disreputable kind of originalism.

Not only did I say "for what it's worth," but the fact the p&i clause was in some special way concerned with equal treatment of out of state visitors, securing equality among the states, was not some "hidden" concern. In fact, the Articles of Confederation had a similar provision. The Federalist citation if anything was likely seen as an easy call, not some "hidden" matter.

Me: But, certain provisions only apply to certain people. Thus, there are two provisions against ex post facto laws, not one. One is a section applied to the feds, the other to the states.

That's ridiculous -- claiming that the Supremacy Clause does not mean what it says just because there are separate ex post facto provisions for the states and the feds.

I'm curious how I'm "claiming that the Supremacy Clause does not mean what it says." My argument is that the First Amendment etc. was intended to apply to the federal government. There is a certain group of rights expressly applied to states in Art. I, sec. 10, which was cited in Barron as well. This helps underline that a citation of a right does not suddenly mean it applies to the states. If "x" provision was meant for the feds only, citations of the Supremacy Clause doesn't help you. If a provision says (explicitly or implicitly) "Congress shall not," a clause that says states have the responsibility to be bound to it (the Supremacy Clause) doesn't suddenly mean "state shall not." They cannot hinder the carrying forth of it, such as aiding and abetting congressional violation, but if only the feds are at issue, only the feds are at issue.

The Dred Scott decision was certainly not "well accepted" by Justice Curtis -- he resigned from the Supreme Court because of disagreements over the decision.

The fact something is a "minority view" means some minority accepted it. Again, I don't think we needed a 16th Amendment, since I think Pollock was wrongly decided. But, the Supreme Court held otherwise and many agreed. So, an amendment was ratified to make it crystal clear what that the income tax is legitimate. BTW, Justice McLean also dissented. He staid on the Court. Curtis resigned in large part because of a dispute he had with Justice Taney.

Me: The fact a provision is still being debated doesn't change what it "expressly" does.

I never said that it does.

When I said "The 14A expressly made it the law of the land," you said "Did it really? There is still arguing going on over whether the 14A's P or I Clause incorporates the Bill of Rights."

I replied that debate is not enough to dispute my point. Your reply "did it really" did appear to lay doubt on my use of the word "expressly." But, whatever.

# posted by

Joe : 10:43 PM

Joe said,
>>>>>>> The fact the rest of the BOR requires more than text alone to make my case does not at all mean the word "Congress" suddenly means nothing. <<<<<<<

So you are saying that your non-literal interpretation of the Constitution is the only valid one.

>>>>>>It makes no sense to allow state and local governments -- or even private entities -- to trample on rights protected by the Bill of Rights.

Why? The people of the era were particularly concerned that a new powerful national government would trample on their rights. <<<<<<<<

There is as much reason to be concerned about the trampling of rights by state governments, local governments, and even private entities.

>>>>>>Curtis wrote above about "the privileges and immunities of general citizenship, derived from and guarantied by the Constitution." That statement sounds like it "incorporates" the Bill of Rights into federal constitutional restrictions on the states.

Again, the P&I at issue were not the right of Missouri over their own citizenship, but those such as suing in federal court, treatment of citizens in the federal territory and perhaps treatment of out of state citizens when they travel to other states. <<<<<<<

Curtis did not make those distinctions. You are putting words in his mouth.

>>>>>>> The idea Curtis, putting aside the fact he was fairly conservative, was rejecting Barron v. Baltimore is a leap. <<<<<<<

He was not discussing Barron v Baltimore and it is not a leap to suppose that he was implicitly rejecting it.

>>>>>> Not only did I say "for what it's worth," but the fact the p&i clause was in some special way concerned with equal treatment of out of state visitors, securing equality among the states, was not some "hidden" concern. In fact, the Articles of Confederation had a similar provision. <<<<<<

We're talking about the Constitution here, not the Articles of Confederation. You are jumping to all kinds of conclusions.

>>>>>> The Federalist citation if anything was likely seen as an easy call, not some "hidden" matter. <<<<<<

The Federalist Papers were written by just a few of the Founders and are not official reports of the constitutional convention.

>>>>>> I'm curious how I'm "claiming that the Supremacy Clause does not mean what it says." My argument is that the First Amendment etc. was intended to apply to the federal government. <<<<<<<

That's ridiculous -- several of the amendments in the Bill of Rights obviously apply to local matters.

# posted by

Larry Fafarman : 9:01 AM

(To everyone, in particular NAL, text and history of the Privileges or Immunities Clause)

    I wish to point out that the Supreme Court decided in the Slaughterhouse Cases that because of the Fourteenth Amendment there were now two seperate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment; and a citizen of the several States, under Article IV, Section 2, Clause 1. (note 1) The last was later reaffirmed in Cole v. Cunningham:

    “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

    So you have a citizen of the United States, who can become also a citizen of a state, by residing therein. And you have a citizen of a state who becomes under Article IV, Section 2, Clause 1 of the Constitution, a citizen of the several States. Therefore, under the Constitution of the United States, since the adoption of the Fourteenth Amendment, there are two citizens; a citizen of the several States and a citizen of the United States. And in each State of the Union, there are two types of state citizens; a citizen of the several States and a citizen of the United States.

____________

Notes:

1. “We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section (first section, section clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” Slaughterhouse Cases page 74.

And, “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF (emphasis mine) the several States.’ ” Slaughterhouse Cases page 75.

____________

Further Readings:

Dan Goodman, "Slaughterhouse Cases, Two Citizens"; November 8, 2008; American Chronicle at http://www.americanchronicle.com/articles/80677.

Dan Goodman, "Mistake in the Syllabus"; November 11, 2008; American Chronicle at http://www.americanchronicle.com/articles/81143.

Dan Goodman, "Slaughterhouse Cases, Up Close"; November 12, 2008; American Chronicle at http://www.americanchronicle.com/articles/81262.

Dan Goodman, "Two citizens under the Constitution"; November 13, 2008; American Chronicle at http://www.americanchronicle.com/articles/81367.

Dan Goodman, "Privileges and Immunities of a Citizen of the several States"; November 14, 2008; American Chronicle at http://www.americanchronicle.com/articles/81495.

# posted by

Unknown : 6:13 AM

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