George Thomas is a terrific and unusually fair-minded professor of criminal procedure at Rutgers Law School in Newark, NJ. I noticed today that he has a forthcoming article that tries to get a sense of the original public understanding of the Privileges or Immunities clause based on how the debates were covered in newspapers of the day: “Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1?” As Thomas admits up front, the essay is not the last word on the original public understanding. And I’m not enough of an expert in the history myself to know whether Thomas’s own judgement calls (which he states clearly) are correct. Nonetheless, I found the article helpful as a way to make sense of the conflicting historical claims.
lgm says:
(Having read the abstract but not the article) There is a potential flaw in this method. Imagine if it were applied to the health care bill today. It would be wrong for future lawyers to interpret the health care reform bill based on what was said about on Fox News. Do we think newspapers of 1868 were more responsible?
January 6, 2010, 11:10 pmGuy says:
150 years from now, originalists will descover that the health care bill requires the government to establish death panels.
January 6, 2010, 11:25 pmAndrew says:
Searching old newspapers as Professor Thomas has done is a worthwhile project, but still needs a lot of work. While Professor Thomas focussed on the term “privileges and/or immunities” to learn whether incorporation of the Bill of Rights was intended, that particular search would not uncover articles that instead confirm incorporation in consequence of “due process,” or in consequence of “section 1″ as a whole.
Professor Thomas reports that he found “the expected mountain of evidence that Section 1 guaranteed fundamental, natural rights and equal protection but made no mention of the Bill of Right guarantees.” Maybe a lot of people back then viewed the Bill of Rights as listing the quintessential fundamental, natural rights, in which case it wouldn’t really make much difference whether newspapers mentioned the Bill of Rights explicitly.
Professor Thomas says that Senator Jacob Howard’s speech asserting incorporation did not receive much attention, pro or con, in newspaper articles about the proposed amendment, beyond coverage in a handful of newspapers including the New York Times. Even if Howard’s speech had been reprinted verbatim in every newspaper in the country, I wonder what percentage of American’s back then read a newspaper everyday.
January 6, 2010, 11:30 pmOrin Kerr says:
lgm,
Professor Thomas is assuming that you are interested in the original public meaning of a phrase in the Constitution. No one uses that method of interpretation to interpret the meaning of 1,000 page statutes.
January 6, 2010, 11:55 pmanonymous says:
There are some major flaws with these newspaper searches, which rely on faulty OCR scan:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1508604
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January 7, 2010, 3:06 amAndrew says:
Here’s an interesting graph of newspaper circulation in the U.S. during the nineteenth century. According to this graph, there were about 40 newspaper copies per person per year in 1870. In other words, on any given day, only a small minority of people read a newspaper. But, I suppose that newspapers might give a clue about what they were all saying and thinking.
Professor Thomas mentions that framers of the Fourteenth Amendment, “sought to ground the amendment in existing law so that it would not appear too revolutionary for moderate Republicans.” Maybe that’s why there wasn’t a whole lot of discussion about it in newspapers. People just assumed (quite reasonably) that the term “due process of law” in the new amendment would merely mean what it meant in the Fifth Amendment, and that the term “privileges [and/or] immunities of citizens” in the new amendment would merely mean what it meant in Article IV.
January 7, 2010, 3:19 amShag from Brookline says:
The comments on this thread suggest the problems with originalism. Is it “intent” of the founders/framers, the “understanding” of ratifiers, the then “public meaning” or the then “public understanding” (or some combination)? As to “public understanding,” how would this be demonstrated other than by newspapers or other contemporaneous writings back in the relevant 1780s and 1860-70s? There’s a whole lot of cherrypicking going on, as demonstrated by the many briefs in the upcoming City of Chicago appeal (as well as the 71 briefs in Heller). So if then “public understanding” is the test for originalism, how is such to be determined?
Seth Barrett Tillman’s “Originalism, the Annals of Congress, and the Problem of Constitutional Memory” is available via SSRN. The article is quite short, but with extensive footnotes. It is described as “DRAFT: NOT FULLY CITED.) While it does not deal with the 14th Amendment, it makes a point of caution in its conclusion:
“Scholarship that relies on the Annals of Congress should be reevaluated. Efforts by modern scholars to understand the Founding, efforts which rely on the Annals, may not reveal the Constitution’s original public meaning, but rather, they may reflect how contemporaneous materials (i.e., those from circa a789) were understood by persons who came on the scene thereafter, i.e., by persons who were engaged in the project of editing (and, truth be told, rewriting) the meager materials which survived the Founding into the Era of Good Feeling.”
January 7, 2010, 7:58 amShag from Brookline says:
A quick addition to my earlier comment:
Consider the role of Blogs on a matter currently under consideration several decades later by constitutional scholars in efforts to determine the “public understanding” currently.
January 7, 2010, 8:04 amMick says:
People were accutely aware at the time of the 14th Amendment discussions in Congress, and the intent is well documented by exact reproduction of speeches by Senators Bingham, Trumball, and Howard, in different newspapers, and in the Congressional Globe. It was definitely an extention of Congressional enforcement of the Bill of Rights brought on by Confederate States refusal to honor the Bill of Rights viz. freed negroes. You don’t think that was THE HOT TOPIC of the day?
January 7, 2010, 8:10 amhttp://works.bepress.com/cgi/viewcontent.cgi?article=1003&context=david_hardy
Why do you assume that the population then was a bunch of illiterate rubes? Why do lawyers always torture the logic of a document that was written to be understood by the general citizen population until it is unrecognizable?
Mick says:
How’s this for intent? Available to everyone.
http://memory.loc.gov/cgi-bin/ampage
January 7, 2010, 9:42 amDavid M. Nieporent says:
Does it count if someone else says it?
January 7, 2010, 9:56 amPeter says:
I was unable to access the article, but apparently it suggests that 96% of the newspapers articles examined did not contain assertions that the p and i clause intended to extend the bill of rts to the states.
of course the more important question is whether the incorporation claim was acknowledged in the states when they debated the 14th amendment, ie whether to ratify it. The evidence indicates it was not. The article of Professor Thomas explains why. A handful of assertions to the contrary, even by authors of the amendment, it is evident that the suggestion that the bill of rts was incorporated simply did not enter into a discussion that was bitter and comprehensive. That would also explain why pro ratification scholars are reduced to arguing that the country’s silence on the issue in the face of claims by Howard and Bingham constituted consent. If it is incumbent upon COngress to explain the meaning of an amendment it submits to the sts, especially one that expands fed authority, the failure of proponents to make it abundantly clear that the amendment extended the bill of rts to the sts–or even acknowledge that claim–seems fatal. the p and i clause was understood as providing a constl basis for the civil rts act, and nothing more.
January 7, 2010, 11:01 amlgm says:
Professor Kerr, I am interested in the original public meaning. I also am interested in the accuracy with which that meaning was represented in the press of the day. I believe, based on newspaper circulation of the day, that it was a more republican (small “r”) time — ordinary people knew less about decisions being made in Washington than they do now. Therefore, it may be more helpful to know how the amendment was understood by those who voted for it.
There is a larger issue raised by this comment thread — professionalism in research. Professor Thomas probably is well intentioned. But he is a law scholar, not a historian. Professional historians probably are better aware of the pitfalls of his kind of research and would be better able to judge its accuracy.
Adversarial processes may be the best way to make determinations of fact. That’s the way professional research is vetted in professional meetings and in the journal peer review process. One should not accept the conclusions of a single paper in a research dispute any more than one would accept a brief in a legal dispute. That means not accepting Professor Thomas’ opinion until other historians start agreeing with it.
January 7, 2010, 11:02 amJ. Aldridge says:
That is because the bill of rights and the first eight amendments were never connected because when the the P&I’s of U.S. citizens was written in 1787 there was no bill of of rights. And the author of the 14A’s first section routinely referred to Article 4, Section 2 as the “privileges and immunities of citizens of the United States” before he had used the phrase under the 14A.
The universal understanding of the meaning of the first section was to give enduring effect to the civil rights bill of 1866. Bingham said this was his sole purpose after reciting this portion of the bill:
After quoting the above he says:
The rest is history.
January 7, 2010, 11:44 amOrin Kerr says:
lgm,
When you suggest that we shouldn’t accept Professor Thomas’s word, I not only agree, as I suggest in the post, but he agrees, quite clearly, in the paper. So while you’re right, you’re simply agreeing with everyone else after they have made the same point, as far as I can tell. (He also discusses the specific objection you raise.)
In my view, what makes Professor Thomas unusual in this area is that (1) he does not have a strong ideological commitment that I’m aware of, so he doesn’t have an incentive to cherry-pick and (2) I know him pretty well, and in my experience he has always been an honest broker.
January 7, 2010, 11:53 amJ. Aldridge says:
Probably because Howard attached a disclaimer that said he had no idea what the P&I’s might entail and wasn’t interested in going into it. He also never said any of the eight amendments were in fact part of the P&I’s of U.S. citizens, but only suggested some of them should be included and not that they were included. Also said it was established that they were not and said nothing whether the 14A changed that.
January 7, 2010, 12:09 pmFederal Farmer says:
He is signed on to one of Chicago’s amicus briefs.
January 7, 2010, 1:27 pmanonymous says:
the question is not whether the professor is an honest broker.
he may have honestly used some very flawed methodology. there are serious problems with his approach as outlined in the akron piece linked to in an earlier comment.
January 7, 2010, 1:53 pmAndrew says:
Here’s the brief that Federal Farmer mentioned. It argues against “total incorporation” (a.k.a. “en bloc” or “jot-for-jot” incorporation) of the Bill of Rights via the P or I Clause. It does not address selective incorporation via the P or I Clause, nor any type of incorporation via the Due Process Clause. (By the way, I signed on to an amicus brief too, but consider myself an honest broker.)
January 7, 2010, 2:00 pmGene Hoffman says:
It’s worth quoting the law review article to show why it doesn’t prove the negative. Apparently Mr. Thomas’ work relies upon http://www.newspaperarchive.com. Here is what the entry for Jacob Howard’s floor speech of May 23, 1866, reported in the New York Times on May 24, 1866 looks like in the database:
See page 15-16 of the Akron piece.
Obviously if one was performing a text search for “privileges” or “immunities” it would be a bad or no match situation as the OCR artifacts are not english.
-Gene
January 7, 2010, 3:55 pmJon Roland says:
This discussion should be broadened to the questions:
1. Did the “privileges and immunities” of U.S. Const. Art. IV Sec. 2 refer to the same claims as the “privileges or immunities” of Amend. 14 Sec. 1?
2. Did either of the P-I appearances refer to the same or some of the same claims as those in the BoR?
Robert Natelson examines the evidence of meaning of PandI in “The Original Meaning of the Privileges and Immunities Clause“, 43 /Ga. L. Rev./ 1117 (2009). He takes a somewhat restrictive and literalistic approach, but one that is worth considering.
From my own reading of the evidence of the era, I find generally that people accepted the legal maxims, Potestas stricte interpretatur, A power is strictly interpreted, and In dubiis, non præsumitur pro potentia, In cases of doubt, the presumption is not in favor of a power. In other words, the claims of individuals against government, whether they be called “rights”, “privileges”, or “immunities”, were generally to be interpreted broadly, and official powers narrowly, with the burden of proof on one asserting official power.
Once we have established that understanding then it should not be surprising that an explicit reference to the BoR was seldom made, first because not all the rights referred to as PandI are in the BoR, and certainly not limited to those in the first 8 amendments, and second because by 1868 few of the BoR had been actively litigated in the courts or matters of much attention in that expression of them. The focus was still on the republican tradition of rights that were shared by all of these expressions.
One does get a sense that by 1868 there had emerged a more exact differentiation of what had traditionally been lumped together as PandI, with the examination of the sources of rights, such as that of Madison in his introduction to the BoR, when he identified the right to trial by jury as arising not from nature but from the social compact. He also explained how rights complement powers, each being a restriction on the other. That would lead naturally to what appears to be the understanding in 1868 that “immunities” were what were called “rights” in the BoR, stemming from nature or the social compact, and “privileges” were rights stemming from the Constitution or laws, such as to vote or hold office.
The confusion that arises, and needs to be addressed, is that while federal rights are complements of federal powers, state constitutions delegate different powers, so if we only treat the complements of those as state rights, there is no basis for challenging a provision of a state constitution or law authorized by it. The main problems are general state delegations of “police powers”, which are so broad that there would seem to be little left of state rights. However, simply applying all federal rights to the states doesn’t necessarily work, logically, because some may only be applicable to the federal government (“Congress shall make no law”), and that would have to be determined case by case (which leads to selective incorporation).
We also need to examine
3. Are the PorI to be understood as always having been applicable to the states, and that before the 14th there just was not jurisdiction for federal courts to decide cases between a citizen and his state over an infringement by a state agent? Or was there always such federal question jurisdiction and that Barron v. Baltimore just got it wrong?
4. Are the protections of Amend. 14 Sec. 1 self-executing, or do they depend entirely on legislation enacted under Sec. 5, in which case Congress could cherry-pick the rights to be protected?
6. Is the authority of Sec. 5 limited to state agents, or is does it extend to private citizens?
January 7, 2010, 4:48 pmcorneille1640 says:
Sometimes it’s still helpful to have a little bit of epistemological humility when trying to uncover what people over 100 years ago “actually” believed. How do we know with any degree of certainty, for example, if any person and how many persons read a particular newspaper? If any given person read whatever newspaper is in question, how do we know that he or she read the article that mentioned, probably in passing, an understanding of the P & I clause? How do we know whether the reader agreed with that understanding?
We don’t. It’s worthwhile to try to come to an educated estimate, but we don’t really know. The best we can do in understanding what people “really” believed is to get as close as possible, and even then realize we haven’t come very close.
I haven’t read the linked paper, but I’ll take Mr. Kerr’s word that the author is an honest broker, and I’m wiling to believe that he is methodologically competent. If the paper is well done, the author has contributed an honest study of the newspapers’ understanding of the P&I clause, and we are the better for knowing whatever is contributed. But we shouldn’t delude ourselves that we shall ever “really” know.
I’ll even grant that one who adopts an “originalist” jurisprudence might have to accept certain working fictions in order to arrive at original intent when that intent is being used for legal purposes. Heck, we all have to draw a line somewhere and live our lives. But looking at this issue as an historian (and not as a legal scholar), we really don’t know.
January 7, 2010, 6:05 pmSeth Barrett Tillman says:
To: Shag from Brookline
Thank you for the plug. Please send me your e-mail or snail-mail address and I will add you to my distribution list or reprint list if you’d like.
Seth
January 7, 2010, 7:33 pmJoe says:
This is an interesting enterprise. Maybe, something like this can be done for a more recent amendment. For instance, the 21A has been subject to Supreme Court cases in recent years respecting the interstate commerce aspects of liquor sales. Justice Stevens cited himself to help flesh out original understanding while dissenting from the majority opinion.
As to cherry picking, consider how much weight is given to The Federalist Papers, which amounts to relying on NYC op-eds by two individuals, both who in their own way had somewhat atypical views on the meaning of certain constitutional principles. A member of the general public reading cases that cite them would think the FP was some official legal analysis of what the Constitution meant. I also don’t know how useful newspaper sources are at the end of the day. Did the state legislators who ratified the amendment understand it the same way? Did the newspapers accessed (a limited number overall — how do we find a good sample size here?) truly reflect the median understanding of the public at large?
It is interesting that the Supreme Court didn’t accept incorporation in a 1869 case. But, if we take the newspapers sources cited, they appear to at least offer a more in depth meaning to P/I than offered in the Slaughterhouse Cases all the same. Can we cross-reference the 14A newspaper sources with the responses to that ruling?
January 7, 2010, 9:09 pmJ. Aldridge says:
That answer is so apparent and well documented in the affirmative that one has to wonder why someone would even ask such a question in the face of the enormous evidence that the answer is yes.
It was always a well known fact that the protection of life, liberty, or property was a P&I of every state citizen within any of the several states.
January 8, 2010, 12:00 amJon Roland says:
I agree the two terms, taken together, denote the same things, but that they separately denote the same things is not as well documented as we might like. Bob Natelson’s paper indicates that in 1787 they were used as synonyms. My own research indicates that by 1868 they had taken on different meanings:
Immunities = Rights stemming from:
nature
Life
Limb (right not be be physically injured or tortured, or have one’s health or comfort threatened)
Liberty
Acquisition, retention, and use of means to secure above rights (part of property right)
Right not to be required to do the impossible or scientifically irrational
The social compact
Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession)
Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries)
Presumption of nonauthority
Common law trust rights
Public decision by convention called by public notice and conducted by established rules of procedure
The State (society with dominion over territory)
Denizenship (right to remain on or return to one’s domicile)
Fair representation of different parts of the territory
Privileges = claims stemming from government:
Citizenship (privilege to vote and hold office, access to voting and fair counts)
Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs
Getting reports on the activities and expenditures of officials
Compensation for taking of property (part of property right)
Yes, but those did not exhaust P&I.
January 8, 2010, 9:43 amsovereignthink says:
Ruling Elitists Groups turned the 14th Amendment on the Corporations that they Owned Under the Public Domain.
Corporations had their day in court in 1885 in Santa Clara County v. Southern Pacific Railroad court case of 1885. 118 U.S. 394 (1886).
The Claim was that the Corporations were Forced to Serve the Public Interests and the Community Trust According to the Local Corporate Charters that the Corporations had been Forced to Sign and have reapproved every 5-10 years in order to have access and use of the Public Domain. They were forced to serve the Community Interest and Trust in order to have permission to Continue Exist. They Argued that the 14th Amendment Implied that these Man-made contracted, drawn-up creations, fictional Non-human Entities, these Contracts, were now naturalized and had the same protected rights as every Citizen.
The Logic was sickly twisted; If the Former Property that were Slaves are now Naturalized Citizens (Natural Persons) with Protected Rights, then the Former Property that is the Corporate Entity is also now a Naturalized Citizen (Super Natural Corperson) with Protected Rights.
And They Won.If their ‘Property’ wanted Freedom then they were going to ‘Free’ their property.
The Corperson Became Real and They Became; The Central Banks and Money, The Education, The Medicine, The Manufacturing, The Communications, The Press, The Unions, The Transportation, The Military Industrial Complex, The Entire Public Domain, The Churches, The Internment Prison Industry, The Public Security Systems, The Government Policey Enforcement and Our Very Systems of Justice.
Fundamental Natural Rights are those rights that can be claimed by everyone simultaneously without forcing someone to serve another’s needs
sovereignthink
September 14, 2010, 1:55 pm