Sunday, October 08, 2017

Not King Tut's Tomb, But . . .

Gerard N. Magliocca

(Cross-posted at Concurring Opinions)

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington's notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice's Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw "Corfield v. Coryell" as a heading followed by pages of notes about the case. (Over on Concurring Opinions, you can see a picture of the first of these journal pages.)

What do these notes tell us about Corfield? One revelation is that Washington's initial view with respect to privileges and immunities was the opposite of what the opinion ended up saying. Corfield concerned a claim that a New Jersey statute barring non-residents from harvesting oysters and clams in state waters was unconstitutional, among other reasons, for violating the Privileges and Immunities Clause by making a distinction between state residents with respect to a privilege. The Court rejected this argument, concluding that no privilege was involved. Washington's notes on the case, though, say "I am inclined to think that it [in other words, harvesting oysters and clams] is a privilege within the meaning of this article of the Constitution. If it be not, then the right to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state."

Another significant insight is that Washington's thinking was shaped by an 1812 New York case, Livingston v. Van Ingen, in which Chancellor Kent discussed the Privileges and Immunities Clause briefly. The notes state that Washington found this case persuasive on the point "that the citizen of each State shall within every other state have equal privileges or rights as the citizens of such state have the words all privileges of citizens being equivalent to equal privileges." The actual opinion in Corfield, though, does not cite the Livingston case at all.

I will have more to say as I work through other portions of the journal. I will also think about how to make this material available as widely as possible without treading on the interests of the Chicago History Museum. Anyone, of course, can go there and look at the journal.         


Is there a reason why there is a "Privileges and Immunities" Clause and then in the 14th Amendment there is a "Privileges or Immunities" Clause? I have long wondered if there was a difference in practice between the "and"/"or."

It would be interesting to know how that case would be decided today. In Baldwin v. Fish & Game Commission of Montana (1978), the Court upheld a fee for an elk-hunting licenses for nonresidents of the state which were substantially higher than the fee for residents of the state in the 1970s. Elk-hunting was not deemed a "fundamental right."

Corfield v. Coryell is cited for the power of a state to selectively benefit its own citizens regarding the "common property of the citizens of [a] state." If this interfered with fundamental rights (including a right to a livelihood) or federal power (such as interstate commerce), it would be problematic, but the opinion said the basic idea was still good law.

Good luck on your research. The justice seems to be a promising subject for a full length biography. I read an old biography of William Johnson, his colleague.

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In answer to Joe's question on the subject of Privileges and Immunities vs. Privileges or Immunities, a former law school classmate of mine helpfully pointed out that the Privileges and Immunities clause of Art. IV, sec. 2 speaks of that to which citizens "shall be entitled" (e.g., it is a grant of both priv. and imm. to citizens, so the conjunctive "and" should be used), while the Privileges or Immunities clause of Am. XIV, sec. 1 is a prohibition: "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens" (so states cannot make or enforce laws that abridge either a priv. or an imm.) so the disjunctive "or" should be used.

Perhaps originalism's corpus linguistics teams might untangle the use of the conjunctive in 1787-89 in the Constitution and the disjunctive when the 14th A was ratified in the 1860s regarding the original public meaning of these similar phrases. When my children were young I got exposed to "Conjunction Junction" on Sesame Street. I don't recall if there was a distinct "Disjunctive Junction" as well. But the new originalism might apply its "construction" motif if interpretation cannot provide the original public meanings of these phrases. It might end up, if it becomes an issue before the Court, six of one, a half dozen of the other. Perhaps the framers of the 14th A were "English Majors."

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That's interesting if not totally convincing.

The usage does make "grant" a sensible understanding but the original clause is often seen as a prohibition of discriminatory treatment too. Likewise, it has been noted that negative language aside, the 14A in effect granted rights.

Anyway, I'm unsure why usage of "and" in the 14A would not fit the "prohibition" purpose. Would "no state shall make or enforce any law which shall abridge the privileges and immunities of citizens" (purposely taking the exact wording) not work?

Maybe, there was a desire to make the text consistent (shall/or). Plus, to be clear, I don't put too much emphasis on such usage. But, it is of some interest, I guess.

Is there anything in there about why his parents named him "Bushrod"?

His mother's name was Hannah Bushrod and he was born on her family land, Bushfield.

Figure that has something to do with it.


The use of "and" in 14A may produce different results than "or" if something is a "privilege" but not an "immunity," or vice versa.

Consider the following two sentences:

1. No person shall eat cheese and crackers.

2. No person shall eat cheese or crackers.

In the first sentence, a person is forbidden from eating cheese and crackers together, but not either item alone. In the second sentence, a person is forbidden from eating either item, whether separately or together.

The use of "and" may in certain cases produce different results. See the 8A.

So, arguably cruel punishments can be allowed if they are usual. Under the 8A.

And, cheese and crackers together is a separate item. Or, there might be a problem with mixture, such as blending foods not being kosher.

But, not sure how that applies to "privileges and immunities" specifically. There is less room for confusion there, especially if it is seen as a historical term. If I saw a ban on prohibition of "privileges and immunities," I wouldn't think just prohibiting "privileges" was okay. There is a flip side nature to the terms too.

Still, maybe that's why they did it. Makes some degree of sense. OTOH, think the word phrasing of the whole provision (earlier usage of "or") might too.

14th A, Section 1.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Using Robert's #2 concept with the disjunctive, let me incorporate it in the manner of Section 1's second sentence's first clause:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States from eating cheese or crackers, ...." In my view the citizens could eat both cheese AND crackers.

Let's vary Robert's #2 as follows: "No law shall abridge the right of a person to eat cheese or crackers." In my view a person could eat both cheese AND crackers.

Query: Did John Bingham say anything about this?

Gerard's post on his "discovery" of this journal may serve as a reminder to Justices/Judges about their policies regarding the release to the public of their journals and similar documents. Might it be that the making of judicial decisions would be like sausage making to be revealed by scholars with access to such journals and the like? Judicial decision-making is not the same as the legislative process. The proof of the sausage is in the eating. Some judicial decisions may produce political heartburn when the ingredients are revealed.

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Back to Joe's question, I just finished reading Gary Lawson "Confronting Crawford: Justice Scalia, the Judicial Method, and the Limits(?) of Originalism" (available on SSRN) for which a link is available at the Legal Theory Blog, and Larry Solum gives it his "Highly recommend. Download it while it's hot!" The text runs 28 pages but it's a quick read as it is triple-spaced. Lawson raises questions related to Joe's question in his examination of Scalia's opinion in Crawford and whether Scalia employed a methodology (originalism?) as opposed to adjudication. Those interested might check out Part III that begins on page 24 to check Lawson's questions and potential differences in original public meanings between the phrase in the Confrontation Clause and the phrase in the 14th A. Lawson raises some interesting points that might go beyond the Confrontation Clause to provisions in the bill of rights incorporated in the 14th A. (I plan to reread Lawson's article to get a better handle on his thoughts as an originalist.)

An interesting bit in that article comes late -- it argues that Scalia spent much of his time worrying about "adjudication," which is not surprising since he was a judge, than interpretation alone. It is noted, e.g., that originalism is often defended largely as a restraint on judges. A debatable argument, even more so if the Constitution logically applied trusts judges with more discretion, even discretion that Scalia deems bad policy.

Williams v. Illinois is also referenced. As Alito's brief opinion announcement says, "Anyone interested in understanding the Court's holding will have to read our opinions." Well, many try a shortcut there. BTW, the cross-post of this piece at Concurring Opinion has a picture of the actual journal.

It is noted, e.g., that originalism is often defended largely as a restraint on judges.

That always seemed to me such a strange defense. Any strictly applied theory of interpretation operates as a restraint.

"That always seemed to me such a strange defense. Any strictly applied theory of interpretation operates as a restraint."

That's more theory than practice.

First of all, nobody manages to apply their theory of interpretation strictly, and for good reason-- you end up not doing justice and getting lots of cases wrong when you do.

Second, the reality is that even if you are "strictly applying" some theory, there's still always enough play in the joints to ensure you can get the results you want. For originalists, it plays out at level of generality-- Brown v. Board of Education is wrongly decided (at least in its broad holding that separate is inherently unequal) if you are an originalist and you care about the fact that the Fourteenth Amendment was not understood as banning segregation. So is Loving v. Virginia, because the Fourteenth Amendment was not understood as barring miscegenation laws. So you just define the generality upward and say that what the provision really barred was racial discrimination.

But this happens with other theories too. For instance, if you are applying the Carolene Products footnote, then you have enormous latitude as to who you consider a discrete and insular minority and who you don't, and what constitutes exclusion from the political process.

You know what ACTUALLY restrains judges? Humility. Understanding they aren't God's gift to jurisprudence, that the judges that came before then and the doctrine already produced is entitled to deference, and that their colleagues on the bench might be as smart or smarter than they are.

Judges that have that personality trait are going to be more restrained whether or not they subscribe to any judicial philosophy at all. Judges who think they are the most brilliant people on earth and who have no intellectual respect for others in their profession who disagree with them are going to be unrestrained no matter what philosophy they subscribe to.

It is not merely a "strange defense," it is a self-deluded one.

Originalism alone can be quite unrestrained because "the Constitution made me do it." The restraint of a Breyer v. a Scalia is rather unclear, including in respect to the area Shag's article addresses. This includes restraint against interest.

Justice Harlan's concurrence in Griswold v. Connecticut called out Justice Black for saying his method, which had originalist/textualist aspects, as very "restraining," including in respect to one person/one vote case law. Likewise, question line-drawing is likely to arise, thus somehow electronic eavesdropping isn't covered by the 4A.

Common law judging in a multi-member court with the restraints of compromise and doctrine are important. After that, justices will have their own leanings in close cases, like Harlan referenced "continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms."

Ok, I'd say you're... not a very good originalist. Right on Brown that segregation was not facially unconstitutional, wrong in that it could easily be determined to be unconstitutional as applied after the history of Jim Crow. And just flat wrong on miscegenation laws, which were unsurprisingly being overturned before the Supreme court put a stop to it.

But that's fine, it wasn't really relevant to your point. More in the nature of an obligatory dig, which I don't really take seriously.

I think you have, however, missed a key question about judicial restraint. It has two components: 1, the extent to which judges are constrained, and, 2, what are they constrained to?

Originalism has an answer to that. What answer does living constitutionalism have? I've never gotten a clear answer to that. Not one that passes the laugh test, anyway.

Lawson mentioned in his article that he was clerking for Justice Scalia when Crawford came down in 1986. But Lawson does not, perhaps due to a code of SCOTUS clerks, provide any inside skinny on Scalia's opinion in Crawford. At the time originalism as we know it now was in its infancy, the movement having started in the 1970s. Lawson is an originalist; I don't know if he was when he was clerking. But originalism was evolving in 1986 from original intent to original public understanding to original public meaning to .... as originalism continues to evolve. Lawson raises questions about Scalia's originalism in the article, citing portions of the book that Scalia cowrote with Whalen(?). It's an interesting article that points to some unanswered questions. Lawson had an article a few years back that used the idea of original public meaning measured by the standard of the reasonably educated man back then. Those of us who went to law school know of the "myth" of the reasonable person standard used in torts.

Brett's 2 questions are actually the same, as we can see with originalism. Originalism does not constrain judges in any meaningful way. It therefore doesn't constrain them "to" anything, though it does serve as a facade for constitutionalizing modern conservative doctrine.

The originalist looks at the prohibition on cruel and unusual punishment in the 8th Amendment and says 'this prohibits the things that the Founders would have considered cruel and unusual.' The 'living constitutionalist' looking at the same says 'this prohibits the things that are considered cruel and unusual today.' I'm not sure how the first is any more constrained than the second, both 'what the Founders considered cruel and unusual' and what contemporary society considers 'cruel and unusual' are objectively existing things. If anything, we probably have a much better shot at discerning the second objective state of affairs than the first.

"And just flat wrong on miscegenation laws, which were unsurprisingly being overturned before the Supreme court put a stop to it."

I'm curious as to why a judge Brett would find miscegenation laws to be so clearly unconstitutional. If they were applied evenly to all races that might want to intermarry, what's the constitutional problem in his eyes? Where has the 'equal protection of the laws' been violated?

The originalist argument in favor of miscegenation laws is quite strong. The courts striking them down did so on either traditional legal principles; state law grounds; or the application of Brown before the Court itself returned to the issue.

I'm curious why a modern day Brett is supposed to ignore that judges WERE overturning miscegenation laws. While a fair number of states just repealed them after the 14th amendment, without waiting on the courts.

That is to say, while you can today argue that this wasn't the clear meaning of the 14th amendment, it actually was the prevailing understanding of courts and legislatures until the foes of the 14th amendment managed to turn the legal tide, and get the 14th amendment rendered moot for generations.

One has to keep that in mind: The people who defended anti-miscegenation laws as permitted by the 14th amendment, were the same people who were determined that the 14th amendment would have no application at all! They were the 14th amendment's foes, not the people who got it into the Constitution.

But wait, Brett, we're not supposed to take into account who are what's foes in campaign and other speeches, what 'animus' people have, right?

I mean, if the 14th Amendment's *supporters* had came to this conclusion, it would be OK? But if it's opponents did, that makes it not OK? You know what that sounds like...

Instead, we have this text we should stick too. It says 'Equal Protection of the Laws.' The Congress who wrote that provision had segregated seating in its galleries, so it wasn't against that, from an originalist pov. As long as it treats all races equally, denying them all the right to intermarry, what's the problem in your view?

I doubt there's a worse principle for courts to follow than "originalism", but if there is it would be "humilty". Let's consider just some of the downsides:

1. It's an entirely subjective standard, in the eye of the beholder. A justice might consider herself "humble", but nothing would stop outsiders from calling her arrogant or "activist".

2. There's no method by which a justice could demonstrate "humility" in an opinion. It's not something that can be demonstrated by logical reasoning or factual support or precedent.

In contrast, even a poor interpretive principle like "originalism" forces a justice to refer to historical fact and make logical arguments. Those can then be evaluated with objective criteria, unlike "humility".

As for miscegenation statutes, a good summary can be found in Sam Marcosson's book Original Sin.

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