Thanks to Jim for posting Philip Hamburger’s very interesting new paper on the original meaning of the privileges or immunities clause. With the oral argument in McDonald just a few days away, I’m curious what readers who follow these issues closely think of Hamburger’s paper. I’m not enough of a historian to have a firm sense of which side is right, so I’m interested in what our readers think. (Oh, and sorry for the post title: I know, I know, I really shouldn’t have done that, but I just couldn’t help myself.)
Lisa says:
There’s a paper that I just read off Legal History blog that talks about unincorporating the Confrontation Clause. I’m going to read this and see how the two work together.
February 26, 2010, 4:02 pmLisa says:
Here’s the link to the other paper.
February 26, 2010, 4:05 pmJon Rowe says:
Ha!
Thank you for opening a comment thread, an MO that’s been noted of you. :)
As far as I can tell the term “privileges or immunities,” is, like many other important parts of the US Constitution, somewhat broad/abstract (the term scholars have come to use is “indeterminate”).
As Hamburger notes, there is serious scholarship that shows the term P or I means incorporating the BOR. Randy Barnett, for instance, has shown it to mean that plus more.
But, Hamburger would note, this evidence is not “conclusive.” My problem with his work is that on these hard issues, as good and meticulous as he is, his work isn’t conclusive either.
And he has this way about him — quite talented and charming — of portraying himself as this disinterested scholar who just “discovered” evidence after meticulous research that other scholars have not.
Nope. He’s got as much of an academic agenda as anyone else. Not that that should poison the well against him anymore than it should poison the well of his contemporaries like Akhil Amar who argue contra.
But speaking of logical fallacies, here is a whopper of Hamburger’s that Lindgren reproduced:
The question is not whether BW’s opinion has “racist” elements to it, but rather what are the merits of Corfield v. Coryell on which pro-incorporation scholars rely.
Hamburger pulled that poisoning the well/genetic fallacy in his book on Separation of Church and State.
If we accept the “argument ad racism” as a valid reason for writing things off (as many modern scholars do), then arguably, “originalism” (or at least the kind of originalism Hamburger endorses) gets written off.
February 26, 2010, 4:12 pmGerard N. Magliocca says:
I’m going through the paper now. My initial take is that Hamburger overstates the case for his view of what the Clause meant (both during and after ratification) just as Amar and Curtis overstate their case for incorporation. In truth, it’s difficult to say with any degree of certainty (let alone justify a court acting based on original understanding) what Section One intended on this issue. Still, I think the Court will incorporate the Second Amendment using Cardozo’s “ordered liberty” test and take a pass on this debate (except maybe for Thomas).
February 26, 2010, 4:14 pmOrin Kerr says:
Jon Rowe writes:
Just curious, what’s his agenda?
February 26, 2010, 4:21 pmBruce Boyden says:
Pull out your rubber stamp, pucker up, and kiss unpunny blog post titles goodbye.
February 26, 2010, 4:23 pmDave N. says:
You keep trying with your titles for your posts. But you aren’t going to top this one; so you shouldn’t even try.
February 26, 2010, 4:24 pmalkali says:
I thought I followed these issues reasonably closely (for someone who doesn’t practice or teach constitutional civil liberties law, at any rate), and I was very surprised by the view of P&I presented by Hamburger’s paper — it’s a side of the question I was completely unaware of.
It is troubling that the Supreme Court is taking up the Second Amendment incorporation question, likely through a legal-historical lens, at a time when there’s still so much we don’t know about American legal history.
I was reminded of this comment by Mark Tushnet on the Heller decision:
February 26, 2010, 4:26 pmalkali says:
My apologies: the link to the Tushnet comment above is broken. This one works.
February 26, 2010, 4:29 pmjellis58 says:
Im shocked we haven’t heard J Aldrige’s views on what Bingham would think of the Hamburger paper yet.
February 26, 2010, 4:31 pmAndrew says:
Hamburger argues that the purpose of the Privileges OR Immunities Clause in the 14th Amendment was merely to make it clear that free blacks were fully protected by the Privileges AND Immunities Clause of Article IV. That argument by Hamburger strikes me as very implausible, for the following simple reason: the Citizenship Clause in the 14th Amendment already made it 100% clear that free blacks were citizens covered by Article IV.
For someone who claims that others are ignoring important evidence, Hamburger does a remarkably impressive job of ignoring the Citizenship Clause. He mentions the Citizenship Clause once (and not by name), in the text accompanying his footnote 175. And even then, he does not acknowledge that the Citizenship Clause made it perfectly clear that free blacks were citizens covered by Article IV (and covered by various other provisions).
February 26, 2010, 4:32 pmJon Rowe says:
OK:
Hamburger’s “agenda” (I put the scare quotes there insofar as I recognize that “agenda” is a loaded term and all scholars tend to have them):
Against judicially created or recognized “rights” altogether. Against the judiciary having the final say over important policy issues (even serious matters of concern that affect individuals and minority groups, where the majority gets to shaft the minority or individual).
He wants the judiciary to have as little (arguably no) “discretion” as possible when deciding issues. In almost all cases, he prefers the judiciary deferring to the legislative branches.
And I think he has strong “animus” for the doctrine of “separation of church and state” and probably possessed such animus before he set out to do his research on the matter.
February 26, 2010, 4:36 pmBruce Boyden says:
Interesting. Hamburger’s argument is somewhat similar to (although distinguishable from) the one I made in a paper I posted earlier this same week, also available on SSRN.
February 26, 2010, 4:43 pmIlya Somin says:
I am skeptical that this argument overturns the extensive evidence that P or I was intended to incorporate the Bill of Rights. Even if Hamburger is right that that clause was intended to provide comity for black citizens, that objective and incorporation are not mutually exclusive. Also, the comity objective seems redundant give that the PI Clause of Article IV, Section 4, already protected all citizens, and the Citizenship Clause of the 14th Amendment had overturned Dred Scott’s holding that blacks were not citizens.
February 26, 2010, 4:45 pmDonald Kilmer says:
That’s my read too. Let’s see if the liberal wing of the Court takes the bait and tries to dodge the hook.
I am reminded of Warren G. Harding’s plea: “I have no trouble with my enemies. I can take care of my enemies in a fight. But my friends, my goddamned friends, they’re the ones who keep me walking the floor at nights!”
February 26, 2010, 4:50 pmeck says:
Please, no more of this arch humor.
February 26, 2010, 4:58 pmPhatty says:
Nice use of our favorite word there. Funny how such “clear” language has been the subject of heated debate amongst scholars and judges for over a hundred years.
February 26, 2010, 5:09 pmJ. Aldridge says:
Unfortunately so-called “serious scholarship” has ignored the vast difference between citizens of a state and citizens of the United States which Bingham said he had no intention of modifying.
February 26, 2010, 5:15 pmDonald Kilmer says:
I need to have this one reviewed in the booth. Does J. Aldridge’s post qualify for a shot in the drinking game?
February 26, 2010, 5:24 pmJ. Aldridge says:
It appears Hamburger is recycling Paul Madison’s arguments and findings he has made against incorporation for the last six or more years. Madison has had a rough draft of the history of the 14A available for years here.
Also, his latest discussion on the subject can be found here.
February 26, 2010, 5:25 pmPhatty says:
On closer inspection, he did mention Bingham, so BOTTOMS UP!!!
February 26, 2010, 5:27 pmAndrew says:
It’s also worth noting that other members of Congress introduced similar bills to the one introduced by Congressman Shellaberger. For example, on January 23, 1867 (before the 14th Amendment was ratified), Congressman James Wilson introduced a bill (H.R. 1037) that likewise characterized the Article IV right to equal treatment as a “privilege or immunity of citizens of the United States.” But Wilson’s bill did not exclude other rights too. Section 12 of Wilson’s bill said:
Hamburger’s article does not mention HR 1037, and also does not mention this non-exclusivity provision contained in any of these bills.
February 26, 2010, 5:27 pmOrin Kerr says:
I need to have this one reviewed in the booth. Does J. Aldridge’s post qualify for a shot in the drinking game?
Phatty, your on-the-field call is overruled. There was no direct mention of Bingham. Yet.
February 26, 2010, 5:31 pmJ. Aldridge says:
Did the original P&I’s under article IV have anything to do with the entire bill of rights in terms of a citizen residing in their own state?
February 26, 2010, 5:31 pmIlya Somin says:
Did the original P&I’s under article IV have anything to do with the entire bill of rights in terms of a citizen residing in their own state?
Probably not. But the 14th Amendment P or I could have been intended to both accomplish the purpose discussed by Hamburger and also incorporate the Bill of Rights. There is no contradiction between these two objectives.
February 26, 2010, 5:40 pmJ. Aldridge says:
It couldn’t have been intended to accomplish incorporation for citizens of a state because Bingham had said before and after the adoption of the 14A that the P&I’s under the 14A were identical to those found under Article IV, Section II.
He called Article IV, Section II P&I’s the “privileges or immunities of United States citizens.”
February 26, 2010, 5:46 pmJ. Aldridge says:
Per Paul Madison from the link above:
February 26, 2010, 5:48 pmPhatty says:
Orin, that seems direct enough to me.
February 26, 2010, 5:50 pmegd says:
Interesting, professor Boyden, that your work seems to focus on copyright, IP, and computer issues. How did you crossover to 14th amendment law?
I really don’t think that Hamburger’s research should have any effect on McDonald, although I’m sure that there will be plenty of anti-Heller folks who will disagree with the point. There are two reasons to include Hamburger’s research in McDonald – either to wholly strip out incorporation, or to provide rational cover to exclude 2nd amendment protection.
The basis for incorporation is well established in the legal precedent, and in the minds of most Americans. To the second point, most (non-legal) people likely viewed Heller as impacting the ability of individual states to regulate gun possession. The idea that Supreme Court decisions are binding on the states is well-entrenched in the American psyche. Further, the idea of federal rights of citizenship being binding on the states is also well established in the psyche. People don’t complain (in generalized complaints) about the state violating their 14th amendment rights, they complain about the state violating their 1st amendment rights. So I think it would be unlikely for the court to suddenly rule that incorporation is right out.
The other option, to exclude the 2nd amendment from incorporation, requires more dubious reasoning. Hamburger’s position is not that selected portions of the Bill of Rights shouldn’t be incorporated, but that incorporation is wholly without merit. If the court were to accept the reasoning that there’s no basis for incorporation, but incorporate all of the rights except for 2 (& parts of 7), anyway, then it looks like judicial activism to exclude from protection those rights which the majority views as politically disfavored.
So ultimately, I think that Hamburger won’t find much favor in the various opinions, except possibly for Thomas.
And for the record, I strongly disagree with partial incorporation, and believe that incorporation of the Bill of Rights is probably incorrect as a textual matter, but recognize that it’s here to stay.
February 26, 2010, 5:52 pmJimmy the M says:
I have nothing to add to this debate on p&i but want to say that the pictures in the article linked in the first comment are amazing. I’m not a Confrontation Clause expert but I do love a good illustration.
February 26, 2010, 5:55 pmJ. Aldridge says:
It is only here to stay because many “activists” (left and right) will feverishly construct arguments to why it should not go away or else their fictional rights will depend on individual states to recognize (horrible thought for some).
Incidentally, it is often ignored that John Bingham was a strong states rights man to the tune of Calhoun and never would approve of “incorporation” as it is construed today.
February 26, 2010, 6:23 pmAndrew says:
Footnote 156 of Hamburger’s article mentions a bill proposed by Congressman James Wilson in 1866, but for some reason Hamburger does not mention what that bill said: “the enumeration of the privileges and immunities of citizenship in this act contained shall not be deemed a denial or abridgement of any other rights, privileges, or immunities which appertain to citizenship under the Constitution.” Wilson also included this language in a later bill he introduced in 1867 (which I quoted earlier in this thread).
The notion that all of the privileges or immunities of citizens of the United States were listed in the Shellaberger bill and/or in the Wilson bill directly contradicts section 12 of the Wilson bill. And, that supposition would also render the Privileges or Immunities Clause of the 14th Amendment a nullity, given that the Citizenship Clause already ensures that the Article IV right to equal treatment protects free black people.
February 26, 2010, 7:54 pmJ. Aldridge says:
I think all of the privileges or immunities defined under Shellaberger’s bill was also the same as defined in the civil rights bill of 1866?
And speaking of Wilson, he made a pretty damning remark against incorporation when he had singled out what “bill of rights” Bingham was attempting to incorporate under the 14A that was limited to only “due process” found under the Fifth.
February 26, 2010, 8:12 pmAndrew says:
It’s hard to know what exact statement by Wilson you’re referring to. During the debate on the Civil Rights Bill, Wilson said:
This shows (1) there was an intention to apply the bill of rights against the states, and (2) the term “bill of rights” was not limited to Article IV rights. I don’t see that it shows much else.
February 26, 2010, 8:22 pmJ. Aldridge says:
Right, there was an “intention” BUT that intention was limited to due process only. It was well understood since 1789 that Article IV rights included protections of due process for life, liberty or property of citizens of one state within another state. The problem of course was, not all states recognized black citizens of others states as “citizens.”
All the 14A did was make sure not only U.S. citizens would be protected against denial of due process, but also “anyone” and the protection of due process couldn’t be unequally administered.
This is why Bingham could say a half-dozen times the 14A took away no right that belonged to the states under the original constitution with a straight face because by principal no state really ever should had singled out anyone from denial of the equal protection of due process.
February 26, 2010, 8:38 pmAndrew says:
We’ve gone over this ground before, and we disagree about it. All I wanted to do here in this thread is explain why I don’t find the Hamburger article persuasive. Many Republicans like Bingham believed that the Article IV P&I Clause was more than an anti-discrimination provision, and instead imposed a wide range of limitations on how states can treat their own citizens, but that view has been correctly rejected by SCOTUS.
February 26, 2010, 8:45 pmJ. Aldridge says:
Absolutely no evidence to support that. If it imposed a wide range of limitations then he could never had declared it took no right from the states nor could he had said every words found under the first section could be found under the original constitution.
What he and most everyone believed is that it allowed enforcing an already existing restriction against state acts.
February 26, 2010, 9:03 pmAndrew says:
J. Aldridge, Article IV IS in the original Constitution. See Bingham’s remarks of January 25, 1866 for details.
February 26, 2010, 9:05 pmOrder of the Coif says:
Query: Why did Bingham list and quote all eight of the amendments adopted in the Bill of Rights as the rights intended to be made enforceable against the states by the 14 Amendment?
To hear himself speak???
February 26, 2010, 9:07 pmAndrew says:
Order of the Coif, I think Bingham did that after the 14th Amendment was already ratified. In contrast, Senator Jacob Howard did the same thing before ratification, so Howard’s statement seems more important.
February 26, 2010, 9:18 pmJ. Aldridge says:
Except Howard never said any of the first eight amendments he read were made a limitation by the 14A. He said before he went into it that he had “no idea” what the P&I’s of United States citizens might be and he didn’t want to go into it because it would be a barren discussion.
February 26, 2010, 9:26 pmJ. Aldridge says:
He mentioned the first eight amendments because he said that is where the rights of United States “as contradistinguished from citizens of a State” are “chiefly defined.” He said two months earlier that the 14A “did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States.”
February 26, 2010, 9:35 pmJacobo says:
The Hamburger piece is predictable, unfinished, and boring. The Boyden piece and the first confrontation piece are way more interesting. Let’s have posts on them.
February 26, 2010, 9:39 pmAndrew says:
Yes, you’re right that Howard said he did not know how SCOTUS would interpret the P&I’s of Article IV. But Howard absolutely did say that the first eight amendments he read were made a limitation by the 14A. Here is what Howard said after identifying some of the Article IV privileges and immunities:
The issue is not what Howard believed and declared. The issue is whether the state legislatures were given adequate notice of what Howard and his colleagues intended. I believe they were.
February 26, 2010, 9:41 pmPubliusFL says:
Wilson said that the language “no person shall be deprived of life, liberty, or property without due process of law” was “in the Bill of Rights which the gentleman desires to have enforced by an amendment to the Constitution.” Not that that language constitutes the whole of “the Bill of Rights which the gentleman desires to have enforced by an amendment to the Constitution.”
February 26, 2010, 9:42 pmJ. Aldridge says:
Notice he says “should be.” He also said the “settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts.”
Thad Stevens made no mention of the bill of rights when he introduced the 14A in the House.
The House judiciary committee lead by Bingham made it perfectly clear the 14A added nothing new to the P&I’s of U.S. citizens.
And we know the P&I’s of U.S. citizens never included the entire first eight amendments under Article IV. Even if it had it would still be no limitation against a state and its own citizens.
February 26, 2010, 9:55 pmPubliusFL says:
“Should be” because the 14th Amendment had not yet been adopted, and whether the 14th Amendment should be proposed to the states was the question before Congress. But he made it clear that that was the purpose of Section 1 of the 14th Amendment.
February 26, 2010, 9:59 pmAnonymouse says:
Enough. This is dull as hell and not going anywhere. This is why lawyers shouldn’t try to be historians. Add my name to the people who want a discussion on dueling and the confrontation clause. I’m also a big fan of the pictures.
February 26, 2010, 10:02 pmAndrew says:
J. Aldridge, your link is to a report written in 1871, which was long after ratification, so it would carry more weight if it had an earlier date. As for what was said in the House, I don’t see why Congressman Stevens had to repeat everything said by Congressman Bingham. And ever since 1787, Article IV has banned a state from depriving an out-of-state citizen of any right, including those listed in the Bill of Rights, that the state protects for its own citizens.
What was said by Congressmen in 1866-1868 pales in comparison to the words of the Amendment itself. And the words of the P or I Clause are broad enough to suggest incorporation of the Bill of Rights.
February 26, 2010, 10:05 pmJ. Aldridge says:
Alright, lets pretend the 14A magically included all the first eight amendments (even though Bingham said it didn’t) through the P&I’s, it still has nothing to do with anything between a state and its own citizens.
February 26, 2010, 10:05 pmJ. Aldridge says:
I’m glad you said that because Bingham never made any reference to the first eight amendments in 1866.
February 26, 2010, 10:07 pmJ. Aldridge says:
But those broad words had been part of the Constitution since 1787 and had clear understanding.
February 26, 2010, 10:11 pmPubliusFL says:
It doesn’t say that. It says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The state’s own citizens are citizens of the United States. If “privileges or immunities” include the first eight amendments, there is nothing in the 14th Amendment to suggest that a state is allowed to make or enforce laws abridging the rights of some citizens of the United States (those who are also citizens of that state) but not others. By its terms, it applies to ALL citizens of the United States. Which include all state citizens.
February 26, 2010, 10:15 pmAndrew says:
No, J. Aldridge, the words used in the P or I Clause are only partially copied from the P and I Clause. There are significant differences in the words used by these two clauses.
Also, I’m not going to bother quoting Bingham’s various statements in 1866 indicating incorporation of the Bill of Rights. We’ve been through all this before.
February 26, 2010, 10:16 pmJ. Aldridge says:
Oh, but anything he says on March 31, 1871 during a partisan speech carries a great deal of weight :-)
I’ll take a committee report backed by 8 members and approved for printing by the entire House over a single partisan speech.
February 26, 2010, 10:19 pmBama 1L says:
Indeed, I’d thought Professor Kerr was trying to start happy hour early.
February 26, 2010, 10:20 pmJ. Aldridge says:
How do you square with the fact Bingham called Article IV, Section II the “privileges and immunities of citizens of the United States” before he even used the phrase under the 14A???????
Seems to me both are one and the same, just as Bingham said they were.
February 26, 2010, 10:23 pmNULS 4eva says:
Careful what you wish for Professor Kerr. And add my name to those who find this article less interesting than the Confrontation one.
February 26, 2010, 10:27 pmAndrew says:
J. Aldridge, I have not quoted anything Bingham said on March 31, 1871 so please don’t put words in my mouth. Also, if you want anyone to comment about how Bingham used the phrase “privileges or immunities of citizens of the United States” then quote a full sentence and give a date, please. Better yet, let’s drop the whole thing, because this thread is supposed to be about the Hamburger article.
February 26, 2010, 10:31 pmBruce Boyden says:
Actually, I crossed over to copyright, IP, and computer issues. My interest in legal history pre-dates my interest in technology law. I even see some parallels, but it is pretty jarring to turn from a paper on antebellum debates on privileges and immunities to one asking if games are “systems.”
February 26, 2010, 10:48 pmJ. Aldridge says:
One of my favorites quotes on the P&I’s under Article IV:
February 26, 2010, 10:51 pmDave Hardy says:
I hav tryed to, keep up wth the drinking gme proposed by dOnalD KilMER and I thnk I am loosing. I can bearly keep typng an
February 26, 2010, 11:11 pmloki13 says:
My observations-
1. Correcting J. Aldrdige on the 14th Am. is like banging your head repeatedly against a wall. It only feels good when you stop.
2. I, too, appreciate Prof. Kerr’s efforts at starting happy hour. And on a Friday for once! I have some serious catching up to do now that these rogs are all finished.
3. I think the Confrontation Clause article is interesting, especially because of the new life given to it with the modern jurisprudence. I really wonder how a) Sotomayor is going to rule (trend with Scalia and go all lib or go with his prosecutor roots) and b) how the new confrontation clause jurisprudence will continue to mesh with modern technology, from video conferencing to discovery of the code used in so many law enforcement items… which will only increase.
February 26, 2010, 11:20 pmPubliusFL says:
Don’t stop there! He went on to say: “This guarantee of your Constitution applies to every citizen of every State of the Union,” and that the 14th Amendment would “giv[e] to Congress the power to pass all laws necessary and proper to secure to all persons — which includes every citizen of every State — their equal personal rights.” But you say he intended it to cover only those few citizens of the United States who happened to be temporarily outside of their home state?
February 26, 2010, 11:27 pmJ. Aldridge says:
You mean correcting historical facts which probably is why a few prefer hiding behind their drinking game.
February 26, 2010, 11:27 pmJ. Aldridge says:
Did I really say it “intended it to cover only those few citizens of the United States who happened to be temporarily outside of their home state”? Or was it Bingham who said “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”?
All the commentators of constitutional law always said the P&I’s of U.S. citizens protected no one but those who venture outside of their state into some other. I never heard of a citizen of a state claiming protection from Article IV, Section II from his/her own state. That isn’t how the P&I’s work under federalism.
February 26, 2010, 11:35 pmAndrew says:
J. Aldridge, on February 3, 1866, a congressional committee voted for a draft constitutional amendment proposed by Bingham: “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states….” If this language had made it into the final amendment, then I would agree with you that this clause of the Fourteenth Amendment merely gave Congress power to enforce the P&I Clause of Article IV (which does not compel states to respect various rights of their own citizens). But in reality this language from February 3, 1866 did not make it into the final draft. You apparently read the final draft as meaning the same thing as the February 3 draft, but I think you’re very much mistaken.
You’re correct that Bingham believed the “privileges or immunities of citizens of the United States” were guaranteed by Article IV. I’m not saying that he misunderstood what that term meant, but rather he misunderstood what Article IV meant. He only believed that the “privileges or immunities of citizens of the United States” were guaranteed by Article IV because he misunderstood Article IV. I don’t know of any scholar who believes Bingham correctly understood Article IV.
February 26, 2010, 11:40 pmPrawfsSloth says:
Then we’re all in agreement. This thread needs more 15th century line drawings of men and women wailing on each other. And less discussion of Bingham.
February 26, 2010, 11:49 pmazn says:
Um, not to rain on the parade, but did anyone actually read that other article? Selective unincorporation? Really? And at the level of the participant, not the right? The whole thing is garbage from any reasonable standpoint.
February 27, 2010, 12:05 amJ. Aldridge says:
Everyone was sure it did. Sen. Trumbull said the 14A’s P&I’s were a “repetition of a provision in the Constitution as it before existed,” and the “fourteenth amendment has not extended the rights and privileges of citizenship one iota. They are right where they always were.”
And of course Bingham said, and the House approved: “The clause of the fourteenth amendment, ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
The evidence is strongly against your assertion that says there is a difference between the P&I’s under Article IV and the 14A.
February 27, 2010, 12:18 amAndrew says:
J. Aldridge, all of those quotes are from years after the 14th Amendment was ratified. I could cherry-pick a lot of quotes from before it was ratified, but you’ve seen those quotes already in other threads.
Yes, many Republicans believed that the P or I Clause merely gave Congress power to enforce the P and I Clause of Article IV. They did not misunderstand the P or I Clause, but rather misunderstood the P and I Clause.
Do you believe that leading Republicans were correct to say in 1866 that Article IV prevented states from violating fundamental rights of their own citizens? Do you believe that Bingham correctly understood Article IV? Every reliable source I’ve read answers “no” on both counts. Maybe the Republican leaders of 1866 genuinely believed that the Article IV Clause had a huge scope, or maybe they merely pretended it did in order to minimize the perception that their new amendment would accomplish huge new things; in either event, they did not accurately convey the meaning of Article IV.
February 27, 2010, 12:36 amJ. Aldridge says:
I don’t understand why you are so quick to dismiss Bingham’s House Report No. 22 simply because it is from the year 1871. Most of the members of the judiciary committee took part in the 14A debates. This wasn’t the work of a single man making rhetorical statements during a political speech. The House approved of it since they ordered its printing over an minority report.
However, Bingham did point out on January 29, 1868, that the Fourteenth Amendment enforces the same provision that was placed against Missouri in construing its constitution to “deprive any citizen of the United States of rights and privileges of a citizen of the United States within the limits of that State.”
So in the year 1868 he didn’t view the 14A’s P&I’s to be any different from Article IV’s P&I’s as the MO provision never was construed to operate on citizens of Missouri, only citizens of the U.S coming within the state.
February 27, 2010, 2:21 amJ. Aldridge says:
They never said no such thing. The entire argument that lead to the 14A was not over a states own citizens, but over how some states treated citizens of other states.
February 27, 2010, 2:25 amJ. Aldridge says:
State legislatures believed, the media believed, the 14A’s first section embodied the Civil Rights Bill of 1866. It simply provided for equality in the protection of life, liberty and property in the administration of justice.
February 27, 2010, 3:45 amgwinje says:
When this thread started, I knew I had to get a new bottle and order a pizza, but I didn’t realize I’d need to call an ambulance. Is someone commenting as J. Aldridge just to watch me die of alcohol poisoning?
Add me to the “dueling and confrontation” list.
February 27, 2010, 3:50 amJ. Aldridge says:
Bingham cites the Civil Rights Bill of 1866:
Bingham then says:
And the rest is history as they say :-)
February 27, 2010, 3:57 amAndrew says:
J. Aldridge, I do not dismiss post-1870 congressional statements, but rather give them less weight. There’s a lot of material to peruse here, so why not focus on stuff that actually took place BEFORE the 14th Amendment was ratified in 1868? If we were analyzing a statute passed in 2005, we would not normally look at statements from the House floor made in 2008, would we?
Also, you infer that the House approved of a committee report merely because the House printed it. That’s an interesting point of view, but the House prints a lot of things, including the Congressional Record, but that doesn’t mean the House endorses every statement made in the Congressional Record.
You say that leading Republicans correctly understood that the Article IV P&I Clause merely instructed states to treat out-of-state visitors equally. But, there’s a mountain of evidence to the contrary. For example, the scholar Raoul Berger wrote: “Apparently unaware that Article IV, §2, protected nonresident migrants, not residents, Bingham said: ‘No State ever has the right . . . to abridge . . . the privileges and immunities of any citizen of the Republic.’”
February 27, 2010, 10:27 amOrder of the Coif says:
I just read Randy Barnett’s quick but devastating response.
If Hamberger’s paper really is a “rough” draft NOT intended to be cited, it could have been posted NEXT Friday.
Nope, the timing is not fortutious, the intent is political.
Bending one’s intellect in the service of “progressive/liberal” politics is not new. It has claimed another victim because Hamberger’s reputation will never again be what it was on Monday of this week.
February 27, 2010, 11:33 amPubliusFL says:
But the Civil Rights Bill did not just apply to people who were not residents of the state that mistreated them. If the 14A embodied the Civil Rights Bill, why would its scope be so much narrower?
February 27, 2010, 12:47 pmJon Rowe says:
That misses the forrest for the trees.
Hamburger’s “intent” is not progressive or lefty liberal at all. He wants the entire BOR including the First Amendment unincorporated.
February 27, 2010, 1:07 pmOrin Kerr says:
Order of the Coif,
I’m not sure I understand the alleged sinister motive. If you’re trying to influence the Supreme Court, isn’t posting an 80-page draft the week before the argument — and leaving it unadvertised for two days after — together with a statement that it should not be quoted or cited, just about the worst possible way to do that? Most of the scholars who are trying to influence the Court in McDonald posted their drafts months ago, in time to be quoted/cited in the merits briefing, and were quite eager to have their papers quoted and cited. (I should add that I don’t know if Professor Hamburger tried to pitch the article to any bloggers when it was posted, but I didn’t receive anything. I don’t know if Jim did, although it would be surprising if Hamburger was pitching the article and choose to do so to Jim and not others.)
I also don’t understand why you would want a legal historian to wait until after an oral argument to post a draft. If the article were posted after the argument, and the Justices came across the article and found it persuasive, it would be a bit unfair to the litigants, who would have no chance to respond to it.
February 27, 2010, 2:03 pmOrder of the Coif says:
It is like a political advertisement that hits the street 3 days before an election. Just long enough to have effect but not long enough to be countered. Professor Barnett has done a great “quick and superficial” rebuttal but no one is going to be able to capabily counter Hamberger’s claims before Tuesday (not even an advocate as skilled as Mr. Gura).
I write articles too. A “just among us Profs” please do not cite or quote version for comments didn’t just pop up on Friday (or Wednesday). Hamberger could have posted it 2 weeks ago or 2 weeks from now. The timing simply creates too strong an inference that the design is to be influential without the risk of timely rebuttal.
It wasn’t serendipity.
February 27, 2010, 3:58 pmJon Rowe says:
OOTC:
What do you think the Court would do with Hamburger’s article, if anything? His article does NOTHING to further the leftist notion that whereas certain preferred rights (i.e., those found in the First Amendment) are properly incorporated, the right to bear arms in the Second is not.
Maybe Hamburger is hoping that the Court uses this as an opportunity to do away with incorporation entirely? (That’s all, it seems to me, his article is good for.)
I don’t think so.
February 27, 2010, 4:03 pmFederal Farmer says:
Don’t you think, though, that the court realizes that at the end of the day, law must make sense to the “common” folk? It would be very odd, to say the least, were the court to find that the urban residents of DC have a right to possess handguns “in case of confrontation” yet the urban residents of Chicago do not. This isn’t a Cheyenne/Chicago divide. For the most part, Chicago is undistinguishable from DC from the point of view of someone living there or merely visiting.
February 27, 2010, 4:35 pmJon Rowe says:
As a professor of law at the community college level, I can answer that with a resounding “NO.”
February 27, 2010, 4:42 pmFederal Farmer says:
You can get away with telling 1% of the people that they don’t have a right enjoyed by the other 99% but you can’t tell 99% of the people that they don’t have a right enjoyed by the other 1%.
The ‘rabble’ has a way of getting roused in those situations.
February 27, 2010, 4:51 pmJon Rowe says:
First they have to understand before they get “roused.” I think SCOTUS has that as an arrow in their quiver.
February 27, 2010, 5:43 pmJ. Aldridge says:
I doubt the House would order the printing of a very important report they thought was wrong or drew the wrong conclusions. The minority report by two dissenting committee members was passed over and not printed as part of the House record.
February 27, 2010, 5:45 pmJ. Aldridge says:
Well Bingham always said it applied to “citizens” and no one else. I know Prof. Barnett suggested the same thing in his post when he wrote:
“Yet, while Hamburger is right that the Privileges or Immunities Clause provided federal enforcement of the Privileges and Immunities Clause Article IV, there is considerable evidence it did more.”
I have no idea what “considerable evidence” he could be talking about since he doesn’t say. I think if it was understood to include non-citizens than there would had been no purpose to include the equal protection of the laws of due process since it had been well established the protection of life, liberty and the enjoyment of property was a P&I of U.S. Citizens. I don’t think anyone would had approved of aliens being put on equal footing with U.S. citizens outside of the protection against the arbitrary taking of their life, liberty or property.
To say there was “considerable evidence” the P&I’s did more would completely ignore its purpose it was inserted to serve the nation.
February 27, 2010, 5:57 pmJon Rowe says:
J. Aldridge:
Why do you hate the doctrine of incorporation? And don’t bother answering with “it’s bad legal history” because we know from reading your posts that that isn’t the real answer.
You go thru this exercise as the quintessential lawyer — that is advocate for a side, filtering and spinning the facts to fit your conclusions — instead of as the disinterested historian.
We are just curious that’s all.
February 27, 2010, 5:58 pmJ. Aldridge says:
It is dishonest and requires one to be dishonest to defend. Do you really believe the states were willing to approve of dueling bills of rights for their own citizens? That would had been insane considering the issue was not the treatment between a state and its own citizens which the citizens are the sovereign and have a right to govern themselves, but of the issue of how some states treated the citizens of other states by refusing to recognize their citizenship and putting them on an unequal footing with other citizens.
February 27, 2010, 6:25 pmJon Rowe says:
Ah no, that’s the peculiar way in which YOU frame the issue.
The issue, in reality, was America just fought a Civil War where in the name of states’ rights, states asserted the right let a particular majority of citizens ruthlessly violate the individual and minority group rights of other human beings.
The losers (the South) were resoundingly defeated along with their vision of having the “majority” in a particular state be able to self rule where that rule included the right of the majority to fuck over the individual or minority group, pardon my French.
That’s how I understand the post Civil War Amendments. And that understanding perfectly resonates with incorporation.
February 27, 2010, 6:40 pmJ. Aldridge says:
Sen. Trumbull who wrote the bill said:
And Trumbull added this:
Leading Radical, Samuel Shellabarger of OH, said this of the Civil Rights Bill:
So you can see the civil rights bill was about preventing discrimination laws against the free slaves now citizens.
February 27, 2010, 6:46 pmJ. Aldridge says:
More dishonest disinformation from you. It isn’t ME framing it, it was Republicans at the time who framed it. One example form Bingham:
Get your facts right before falsely accusing someone.
February 27, 2010, 6:55 pmJ. Aldridge says:
BTW Jon, didn’t “incorporation” all begin from the court “assuming” facts not in evidence and not from any 14A analysis that would support “incorporation”?
February 27, 2010, 6:58 pmJon Rowe says:
Aldridge:
Exactly and what are “the rights of the citizens” emphasized? Among others, the those found in the First 8 Amendments to the Constitution, exactly as the Framers and Ratifiers of the P or I said.
February 27, 2010, 7:10 pmAndrew says:
Does Mr. Aldridge agree with Mr. Berger, or not? Berger wrote: “Apparently unaware that Article IV, §2, protected nonresident migrants, not residents, Bingham said: ‘No State ever has the right . . . to abridge . . . the privileges and immunities of any citizen of the Republic.’”
This sentence written by Berger has nothing to do with the 14th Amendment, but rather involves Bingham’s understanding of Article IV in the original Constitution. Bingham believed it protected not just citizens visiting from out of state (i.e. nonresident migrants) but also citizens of the Republic who reside within a state where the abridgement occurs. Many Republicans said the same thing in 1866, about Article IV; it was only because of this misunderstanding about Article IV that some of them sometimes said the 14th Amendment would merely give Congress power to enforce rights that they thought already existed.
February 27, 2010, 7:27 pmJ. Aldridge says:
You can assert these citizens have all kinds of rights but it doesn’t change the fact these are rights of citizens as U.S. citizens and not rights citizens of a state can claim under their own state.
February 27, 2010, 7:30 pmJon Rowe says:
And the rights of US citizens qua citizens which no state may abridge, as the P or I states, are among others those found within the First 8 Amendments of the BOR plus more.
February 27, 2010, 7:36 pmAndrew says:
J. Aldridge, you quoted John Bingham above: “The law in every State should be just.” Does that mean that you, Mr. Aldridge, believe SCOTUS has authority under the 14A to strike down any law that five justices subjectively think is unjust? That seems like a much more unlimited judicial power than merely allowing the justices to apply the specific provisions of the B of R against the states.
Do you really think SCOTUS should have unlimited power? Because that quote from Bingham suggests to me your position is that SCOTUS does have power to strike down not only unjust gun control laws, and unjust limitations on speech, and unjustly cruel punishments, but also any law on any subject that five justices feel strongly about, whether it’s covered by the first eight amendments or not.
February 27, 2010, 7:41 pmJ. Aldridge says:
Can’t say I agree or not agree because I never read the complete transcript of what Bingham was saying. But I will say it doesn’t sound like something Bingham would claim for Article IV P&I’s since he was always consistent with arguing along the same lines as Webster, Story and Kent. I know he argued that migrants (aliens) were equally protected in due process by the 5A because it read “any person” shall not be denied due process.
Anyway, here is some passages by Bingham on Article IV P&I’s:
* “But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union…”
* Referring to Article IV, Section II as a bill of rights: “Gentleman admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States…”
* “When you come to weigh these words, “equal and exact justice to all men” go read, if you please, the words of the Constitution itself: The citizens of each State (being ipso facto Citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
* Bingham to Rep. Robert S. Hale (NY): “I respectfully ask him to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?”
* “Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States?”
* “It seems to me equally clear if you intend to have these thirty–six States one under our Constitution, if you intend every citizen of every State shall in the hereafter have immunities and privileges of citizens in the several States, you must amend the Constitution.”
February 27, 2010, 8:18 pmAndrew says:
Here is the full Bingham quote that you say you have never read, Mr. Aldridge:
Doesn’t “any citizen of the Republic” include a citizen of the state where the abridgement occurred (as Mr. Berger inferred)? Bingham was one of many, many congressmen in 1866 who said (incorrectly) that the Article IV Privileges and Immunities Clause protects citizens of a state where abridgements occur, in addition to protecting visitors from out of state.
February 27, 2010, 8:27 pmJ. Aldridge says:
Not any state law, no. Laws for different classes of persons for the protection of due process in the administration of justice would be null under the 14A. And any organic act by a state like Oregon did against black citizens in its constitution would violate the P&I clause and be null. Remember Bingham pointed out Oregon’s constitution as the only state violating the P&I’s.
Just because justices think a state law is unjust or unfair does not constitute a violation of denial in the equal protection of the laws of due process.
February 27, 2010, 8:28 pmAndrew says:
No, Bingham did not only single out Oregon. Please read the quote in my most recent comment; Bingham said “many” of the states have exceeded their powers. While your intentions may be noble, Mr. Aldridge, I think your position would simply enhance and remove all limits to the power of SCOTUS.
You also mention “the equal protection of the laws of due process,” but actually that phrase of yours refers to two separate clauses in the 14th Amendment; only one of those two clauses would need to be violated in order for SCOTUS to strike down a statute — your apparent suggestion that both clauses would have to simultaneously be violated in order for SCOTUS to intercede seems very unique and rather odd.
February 27, 2010, 8:41 pmJ. Aldridge says:
It didn’t click with me that is what was being quoted. Like I said before, abolitionists rightfully considered protection of life, liberty and property to be a fundamental purpose of all governments that could never be denied. And like I said before it was widely understood that the protection in life, liberty and property was a P&I under Article IV. So yes, no state never had the right to do the above under Article IV, but there was no way to enforce it until the 14A.
This line of argument is much ado about nothing.
February 27, 2010, 8:45 pmAndrew says:
No, it’s not much ado about nothing, because in dozens of threads at this blog, you’ve asserted what you’ve asserted here in this thread: that the Privileges and Immunities Clause of Article IV was “no limitation against a state and its own citizens.”
So, now you’re apparently saying something very different: that protection of life, liberty and property is required by the Article IV Clause with regard to a state’s own citizens. And you say not only that Bingham believed that, but he was correct in believing that. Unfortunately, that view of yours is at odds with a consistent and unbroken and correct line of Supreme Court cases dating back at least to Paul v. Virginia in 1869.
February 27, 2010, 8:53 pmJ. Aldridge says:
I said it was Oregon he singled out. Saying “many states” singles out none.
Due process and the equal protection of the laws are one and the same. Due process is described in two different ways to both prevent denial but also to prevent unequal application. Bingham said the equal protection of the laws existed under the original constitution under the 5A’s “any person” shall not be denied due process.
February 27, 2010, 9:00 pmJ. Aldridge says:
Have no idea how you can conclude such a thing and not sure I want to know.
February 27, 2010, 9:05 pmjrose says:
Whatever Article IV’s P&I’s meant, I don’t follow why Congress couldn’t enforce them under the Necessary and Proper clause. To the contrary, the only P or Is that make sense for inclusion in the 14th are those that the courts ruled were not part of Article IV’s P&Is.
February 27, 2010, 9:09 pmAndrew says:
I would have thought that the Due Process Clause protects people from being harmed without legal authority, even if such harm is inflicted uniformly and equally upon everyone. But be that as it may, I am mystified by why you want us to obey every word Bingham said, except these: “The law in every State should be just.”
Additionally, why do you think that the only Article IV limitation on a state — with respect to its own citizens — is that the state must not take life, liberty, or property without due process of law?
P.S. You acknowledged in this thread that “no state never [sic] had the right to do the above under Article IV.” The “above” included a state harming “any citizen of the Republic” including its own citizens, correct?
February 27, 2010, 9:11 pmjrose says:
These two quotes (both attributed to you) do not appear to be consistent:
“the Privileges and Immunities Clause of Article IV was no limitation against a state and its own citizens.”
“And like I said before it was widely understood that the protection in life, liberty and property was a P&I under Article IV”
The latter seems to be a limitation against a state in how it treats its own citizens.
February 27, 2010, 9:15 pmAndrew says:
I guess I need to ask this for a third time, J. Aldridge. Do you agree with Raoul Berger that Bingham was unaware Article IV, §2 did not protect a state’s own residents?
February 27, 2010, 9:18 pmJ. Aldridge says:
Bingham explained in H.R. No. 22 that it was feared the court would rule Article IV was unenforcable like in Barron with the 5A.
February 27, 2010, 9:22 pmJ. Aldridge says:
Bingham made it too clear Article IV did not protect citizens of a state against themselves: “This guarantee [Article IV, Section II] is of the privileges and immunities of citizens of the United States in, not of, the several States.”
Nothing more to argue.
February 27, 2010, 9:28 pmAndrew says:
Okay, so now I gather that you disagree with Berger on that point. In contrast, I agree with Berger on that point.
Incidentally, you have taken Bingham’s sentence out of context. Here it is with some context:
It seems clear that “every citizen” includes a citizen who stays “in” his home state.
February 27, 2010, 9:37 pmjrose says:
In Baron, the Court ruled the 5th wasn’t enforceable against the states because its text didn’t apply to the states. Thus, for your theory to be correct, the fear would be Article IV’s P&Is would be found to not apply to the states. That is highly implausible given the plain text of the clause.
February 27, 2010, 9:42 pmJ. Aldridge says:
He is simply saying it applies to “every citizen” of the union who ventures into another state not of their own. That is exactly how the P&I’s of U.S. citizens work.
February 27, 2010, 9:43 pmAndrew says:
Just out of curiosity, J. Aldridge, do you know of any book or article that asserts Bingham correctly understood that the Article IV clause did not apply to harm done by a state to its own citizens? That Bingham misunderstood Article IV seems to be a rare point of scholarly agreement between both sides of this whole argument (e.g. see Raoul Berger on one side, and Michael Kent Curtis on the other side).
February 27, 2010, 9:45 pmJ. Aldridge says:
Not my theory; I just told you what Bingham had said about it. You can go read what he said here.
February 27, 2010, 9:46 pmPubliusFL says:
You read way too much into those two words. Bingham was contrasting rights that people have as citizens of the United States versus rights they have as citizens of individual states. “Not of” means that P&I related to rights that people held as U.S. citizens (flowing from the U.S. Constitution), not as state citizens (flowing from the state constitutions). But “every citizen of every state of the union” has these rights. This interpretation is consistent with Bingham’s whole statement. Yours makes one sentence contradict the next.
February 27, 2010, 9:46 pmtom van dyke says:
Gentlemen, I’m late to the party but I’ve been following the thread since the beginning and enjoying it.
Bingham’s authority as final on what the 14th’s text meant to its ratifiers seems to be under drinking game challenge. So I’ll toast Rep. Bingham [rest in peace], and offer my tuppence:
Heh.
I’m with Madison [see below] that drafting debates are irrelevant. The text comes first, and next, the meaning of terms in the ratification debates.
If the ratifiers had reason to expect that the 14th would be applied to incorporation of the first 8, then that argument holds. But the burden of proof lies there.
Because if you inspect Section 2 of the 14th, it explicitly excludes women’s suffrage from the 14th’s application. Clearly, at least one of the unintended consequences of the amendment was considered here, with a lengthy paragraph. One could argue that incorporation of the first 8 was contemplated, but it also seems fair to argue they just could have plainly written the text to read that they were incorporated. A mere clause would have sufficed, job done.
And that further attempts to incorporate the first 8 were subsequently made [and failed to pass] seems a valid argument that the 14th didn’t incorporate is surely an argument not to be dismissed out of hand.
That the 14th would apply to race seems uncontroversial, which I believe is why Hamburger insists “privileges and immunities” has that specific and historical context, and is not just impressive-sounding but vacuous rhetoric.
Surely to those of the 1950s-60s era and especially immediately thereafter—and even in 2010—”states’ rights” means racial oppression, not the “federalism” of 1787. There is some level of “common sense” that must apply to a reasonable understanding of terms in their historical context by ratifiers.
In 2010, the supply of subliterates in our federal and state legislatures is nearly inexhaustible, and we needn’t name names.
But they are the stuff of “ratifiers.” For better or worse.
I believe this is where Hamburger is going with all this, with his concentration on abolitionist and civil rights [race] arguments. To charge him with insincerity or bad faith seems unfair at this point. Perhaps he’s quietly soliciting input on his argument from here or there before formalizing it. Probably wanted Barnett and his cronies [hehe] to take a whack at him.
;-)
…while staying off the record—DO NOT CITE OR QUOTE WITHOUT PRIOR WRITTEN PERMISSION. Y’know, once upon a time, all philosophical inquiry wasn’t bloodsport. Before the printing press and especially the internet, one could try out ideas with other worthy minds without having to defend them to the death.
In fact, perhaps that was part of why he wanted the Constitutional Framing Debates kept mum and held irrelevant, if we’re going to go into personal motives: Madison lost his share of battles over the final wording in the Constitution and Bill of Rights.
Me, I’d prefer to believe Madison believed in the republican ideal of consensus, not the brutality of 51-49% democracy.
And so, to Madison as promised, on why he had continued to delay publishing his notes [now considered definitive] on the constitution’s drafting debates [1821]. Thx for reading, if anyone has read this far:
“As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”]
February 27, 2010, 9:55 pmjrose says:
In my opinion, Bingham’s theory is implausible, and should be rejected as the basis for interpreting the original meaning of the 14th’s P or Is. Do you agree?
February 27, 2010, 9:55 pmJ. Aldridge says:
I’m sure you will be kind enough to offer evidence of a citizen of a state claiming Article IV P&I’s protection against their own state and a court agreeing they have standing to bring an Article IV P&I argument against their own state?
Did Kent, Story, Webster, Cooley, et al, ever assert the P&I’s under article IV protected citizens within their own state from themselves?
February 27, 2010, 10:04 pmAndrew says:
Nice comment, Tom Van Dyke. Thanks. It’s true that the language of the 14th Amendment is fuzzy, and if they had intended incorporation they could have spelled it out. But there’s also a strong presumption that clauses have some meaning, and IMHO incorporation is the most plausible meaning that can be attributed to the P or I Clause.
Additionally, I doubt very much that incorporation will be reversed at this late date. But, it is not too late to decide which clause achieves incorporation. The P or I clause is much more plausible than the DP clause for this purpose, methinks. The DP Clause has been way overstretched.
February 27, 2010, 10:06 pmjrose says:
Indeed, it is uncontroversial that the 14th applies to race. But because the 14th is silent on race, it should be equally uncontroversial it does not apply only to race.
That leaves us with the still unansewered questions as to the original meanings of the three operative clauses in Section 2, and if constructions which apply the 2nd Amendment to the states are consistent with those meanings. As Jack Balkin persuasively argues, that determination should depend on how the ratifiers viewed the meanings of the text, not on how they would have applied their own constructions to those meanings.
February 27, 2010, 10:17 pmjrose says:
I agree, but it might open Pandora’s box of resurrecting the result from Lochner, and invalidating much of the 1930′s+ regulatory state without majority approval. If the Court chooses to resolve McDonald using P or I, it would be wise to include dicta that short circuits this possibility.
February 27, 2010, 10:24 pmAndrew says:
Yup.
February 27, 2010, 10:31 pmPubliusFL says:
Of course I can’t. The Republicans’ whole complaint was that the P&I clause was not enforced. Hence that whole 14th Amendment thing?
February 27, 2010, 10:50 pmJ. Aldridge says:
I thought you were trying to argue like Andrew that “every citizen of every state of the union” could claim protection of the P&I’s under Article IV against their own state vs. protection they could claim after removal to another state they were not a citizen of.
February 27, 2010, 11:10 pmDave Hardy says:
I m still onn the drinkng binge that dOnn Kilmer started. Wen will it ever stopp.? I am sototally fuke up that my livr is ruind and I may sue fr damag. pleae srtop now whle i may live%
February 27, 2010, 11:12 pmJ. Aldridge says:
Priceless.
February 27, 2010, 11:17 pmDave Hardy says:
BuT a stap[e of probibitionist thot was tht artilce IV a,ready bound the stAtes to obseve the Fedral bill of rts, see Dret AScott, and that privilges and imunities of citizens of the segvarl states mean bill of righ rights, so what does this ancahr anacro ancakroni anachronim mean?
February 27, 2010, 11:31 pmtom van dyke says:
That silence is literally true of the text, Andrew. But surely no one would argue that after a Great Civil War that left half a million Americans dead that the 14th Amendment was composed in a vacuum as though America had just fallen off a turnip truck.
Race is clearly the issue at hand and Hamburger seems to be arguing that that’s indeed the issue at hand and that applying the 14th to everything else under the sun might be a bridge a bit too far.
The burden of proof that it applies to more than the full emancipation of the black man surely falls on those who argue the 14th entails more than that.
But thx for reading and engaging my argument, Andrew. Such good faith is rare these days.
February 27, 2010, 11:54 pmAndrew says:
Doubtless Tom Van Dyke meant to say “jrose” instead of “Andrew.”
Doubtless J. Aldridge did not mean to omit Bingham’s very next sentence: “The gentleman did not utter a word against the equal right of all citizens of the United States in every state to all privileges and immunities of citizens, and I know any such denial by any state would be condemned by every sense of his nature.”
Doubtless Dave Hardy knows how to spell.
:-)
February 28, 2010, 12:11 amtom van dyke says:
Oooops, sorry, Mr. Rose. My props and remarks were clearly directed toward you.
Per your infra, I cannot stipulate that “Jack Balkin persuasively argues” anything. But it was honorable of you to give him credit for your argument.
I do wonder sometimes if the internet, and haggles like this, influence the real world or if it remains a sterile world unto itself while the world mostly goes on its merry way.
I do suppose there’s an interface, since I read that Eugene Volokh was recently billed on a lecture as the Volokh Conspiracy guy and secondarily as some law prof from UCLA.
Anyway, my argument per Hamburger re the burden of proof on 14A stands.
February 28, 2010, 12:15 amAndrew says:
We’re definitely a sterile world unto ourselves.
It would seem very weird for the EP Clause to extend far beyond protection of African-Americans, while the PI Clause is strictly limited to African-Americans. Seems like the burden should be on Professor Hamburger to explain why such a discrepancy exists.
February 28, 2010, 12:19 amtom van dyke says:
Andrew, my apology to you as well. If there exists a contrary and valid argument to your position, I’m afraid I cannot endorse Mr. Aldridge’s, since if even Madison is not definitive on the Constitution, surely Bingham is not definitive or authoritative on the 14th.
[Knocking back another shot here in honor of Mr. Bingham, as I believe is the custom here.]
My own argument is more about where lies the burden of proof on interpreting the 14th, which I believe Hamburger is getting at. And if he’s not, then it’s my own argument and question. Either way.
The shifting [and avoidance] of the burden of proof is the best sophistic technique of our age. But in arguing and assuming some burden of proof what “privileges and immunities” might have commonly meant to rather ordinary folks like you and me as ratifiers, I do not think that Hamburger shifts back it unfairly.
February 28, 2010, 12:23 amAndrew says:
No apology needed. No one believes that the Citizenship Clause only assured birthright citizenship to African-Americans, and no one believes that the Equal Protection Clause only protects African-Americans, so IMHO there has to be a really strong rationale for supposing that the Privileges or Immunities Clause is the odd man out.
February 28, 2010, 12:29 amJ. Aldridge says:
How does that change the fact he is simply stating the proper function of P&I’s of U.S. citizens where no U.S. citizen could ever claim protection against their own state???????
February 28, 2010, 12:39 amJ. Aldridge says:
———
February 28, 2010, 12:41 amJohn Herbison says:
Did Hamburger cite Frankfurter?
February 28, 2010, 12:51 amtom van dyke says:
Andrew, I would not narrow the expected application of the 14th to African Americans. I’m all for an expansive reading of it to include race in general. Even the brave sole dissenter in Plessy, Justice Harlan, seemed to think Asian—Chinese-Americans—weren’t included under the 14th.
It’s quite clear that the 14th was vitiated by race, specifically the status of American blacks. But if the ratifiers meant to exclude Asian-Americans, they should have insisted the text say so. Clearly, they excluded women’s suffrage as being demanded under 14A, in Section 2. They could have reasonably have expected that 14A would apply to all races.
We cannot read the minds and private reservations of the ratifiers. What we can, in good faith and fidelity on our part and assuming theirs, reasonably ask what they reasonably could have expected the text to mean. If they wanted the 14th to incorporate the first 8 or to exclude Asians, it would be reasonable to expect them to say so, as they quite reasonably wrote and ratified Section 2 of the 14th to not require women’s suffrage.
February 28, 2010, 12:56 amJ. Aldridge says:
Simple, it meant the same thing as meant with the Civil Rights Bill of 1866. This is why the Senate didn’t bother debating the 14A because points and arguments was the same as with the Civil Rights Bill.
February 28, 2010, 1:15 amtom van dyke says:
Oh, and Mr. Rose, I believe Justice Sotomayor’s last ruling before being elevated to the Supreme Court held that the 2nd Amendment doesn’t incorporate, for reasons somewhat given infra. And as much as my redneck and fascist self might chafe at that interpretation of 2 and 14A, I think hers is a quite a reasonable interpretation.
Heller at this point applies only to the District of Columbia, sui generis if there ever were a sui generis under federalism, the only “state” where states’ rights do not apply.
But I’m no scholar, only a common person, armed with whatever “common sense” God gave me. I’m not expected to have an informed or worthwhile opinion, per certain comments above in this thread.
February 28, 2010, 1:17 amMike Hansberry says:
Hamburger’s argument can be boiled down to this -the below three statements mean exactly, or perhaps roughly, the same thing.
A) The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
B) The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the United states in the several States.
C) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Instead those statements show a progressively greater protection of the rights of citizens. And it is not plausible that the PorI clause of the 14A was meant to secure to each citizen the PorI resulting from federal citizenship when he happened to be traveling in another state, but not when actually in his state of residence. The plain text of the PorI clause of the 14A does not lend itself to such a narrow meaning and the claim suffers further when one considers that such a narrow reading does not provide constitutional cover for the Civil Rights Act 1866 which demands equality among citizens of every race within every state regarding enjoyment of a list of rights often associated with P&Is
The PorI clause of the 14A refers to rights of citizens as does Sec 1 of the Civil Rights Act of 1866, so the parallel is plain. On the other hand, the Due Process clause of the 14A refers instead to “any person” while protecting only a portion of the rights covered in Sec 1 of the Civil Rights Act of 1866, therefore the Due Process of the 14A addresses a somewhat different concern and more importantly is not sufficient in terms of the scope of rights protected to provide constitutional cover for the Civil Rights Act.
As it is well accepted that the 14A was intended to provide constitutional cover for the Civil Rights Act, the logical conclusion is that the PorI clause of the 14A was intended to be, at the very least, broad enough to provide that cover.
February 28, 2010, 2:27 amjrose says:
Relying on what the ratifiers expected the text to mean strikes me as adherence to “original intent”, not “original meaning”. In my view, adherence to “original meaning” results in no burden of proof on those who see the 14th applying beyond race.
Do you have a citation? There may be many reasons that Sotomayor rejected incorporating the 2nd, but I find it hard to believe she argued it was because there is a burden for matters not related to race.
February 28, 2010, 8:59 amjrose says:
I don’t think that is quite right because the Civil Rights Act of 1866 explicitly lists a set of rights, whereas the 14th does not. Nonetheless, I agree there is a distinct parallel in the two sets of language.
Accepting that parallelism, don’t you agree the Civil Rights Act’s first portion (citizens, [...] shall have the same right, in every State and Territory in the United States, to make and enforce contracts, …), which mirrors the P or I clause of the 14th, is a restriction against the States on how they treat their own citizens (as well as citizens of other states)?
February 28, 2010, 9:14 amMike Hansberry says:
JRose,
The inclusion of “territories” in the Civil Rights Act suggests that there are P&Is of federal citizenship that exist independently of, and go beyond simply enforcing, art4,sec2.
February 28, 2010, 11:02 amAndrew says:
Scholars on both sides of the incorporation debate interpret Bingham’s remarks as saying that the Article IV P&I Clause restricts how a state may treat its own citizens (e.g. see Raoul Berger agreeing with Michael Kent Curtis). I’m not aware of any book or article that says Bingham correctly understood Article IV. Certainly, the Civil Rights Bill of 1866 sought to restrict how a state can treat its own citizens, so I very much doubt that the P or I Clause in the 14th Amendment merely restricts how a state can treat visitors from out of state.
It’s also worth keeping in mind a third possible interpretation by Bingham. He may well have believed that the Article IV Clause only restricts how a state treats visitors, but — instead of requiring equal treatment of visitors — requires a state to respect an unvarying set of national rights of visitors. Anyway, instead of obsessing about what Bingham said prior to ratification, it’s probably best to focus on the actual words of the 14th Amendment, and how those words would have been understood by typical state legislators.
February 28, 2010, 2:23 pm30yearProf says:
The Freedman’s Bureau Act of 1866 (passed contemporaneously) says
The statute is totally consistent with Sen. Howard’s May 23, 1866 speech introducing the 14th Amendment as intended to compel the states to respect
and with John Bingham’s 1871 statement that
The consistency over the years has always struck me as very strong evidence that everyone had the same understanding.
February 28, 2010, 6:35 pmPubliusFL says:
And not just on the Radical Republican side. Even before the war, Justice Taney admitted in Dred Scott that if blacks were citizens, they would be entitled to “privileges and immunities” including the right “to keep and carry arms wherever they went.” This goes to show that even if supporters of the 14th Amendment like Bingham thought that its “privileges or immunities” were coextensive with the “privileges and immunities” in Article IV, those latter P&I were broadly understood by the mid-19th century as being more extensive than a strictly originalist interpretation of Article IV might support.
February 28, 2010, 6:42 pmJ. Aldridge says:
Bingham was always very clear during the debates that he never considered the P&I’s of US citizens to also be P&I’s between citizens and their own state of residence.
Bingham on February 28, 1866: “Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States?”
I have shown significant evidence Bingham understood the P&I’s to not have anything to do between a citizen and their own state while you have offered no evidence he had a contrary view.
February 28, 2010, 8:17 pmAndrew says:
Mr. Aldridge, it’s not true that I have offered no evidence. The quote you have just provided is equivocal. The following quotes are not equivocal.
* “No state ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges and immunities of any citizen of the Republic [including its own citizens], although many of them have assumed and exercised the power, and that without remedy.”
* “The gentleman did not utter a word against the equal right of all citizens of the United States in every state [including their home states] to all privileges and immunities of citizens, and I know any such denial by any state would be condemned by every sense of his nature.”
* “No state may rightfully, by constitution or statute law, impair any of these guaranteed rights, either political or natural. They may not rightfully or lawfully declare that the strong citizens [including their own strong citizens] may deprive the weak citizens [including their own weak citizens] of their rights.”
* “[W]henever the Constitution guaranties its citizens a right, either natural or conventional, such guarantee is in itself a limitation upon the states.”
Et cetera. Can you name a single book or article that contends Bingham had a correct understanding of the Privileges and Immunities Clause in Article IV?
February 28, 2010, 8:37 pmJ. Aldridge says:
That isn’t evidence since all he is saying the right belongs to all citizens whenever they go into other states and no evidence where he says it is a right of citizens to claim against their own states which he clearly had said they have no such right to claim against their own state.
February 28, 2010, 8:42 pmPubliusFL says:
He doesn’t say anything about going into other states in any of those quotes. You don’t give any reason for believing that when he used explicitly universal language, he was really attaching unspoken conditions that eliminated the vast majority of the citizens that his plain words would most naturally apply to. I might as well claim that he was saying the right belongs to all citizens whenever they’re wearing a top hat, because you can’t provide any evidence where he says it is a right of citizens not wearing top hats.
February 28, 2010, 9:05 pmJ. Aldridge says:
He is talking about rights of United States citizens and not citizens of a state. Go read what he says is the difference between the two.
February 28, 2010, 9:12 pmJ. Aldridge says:
Priceless.
February 28, 2010, 11:23 pmIsiah Kant says:
Aldridge’s evidence is pretty significant and persuasive. He is right in pointing out John Bingham made clear distinctions in rights of citizens of a state and as citizens of the United State.
March 1, 2010, 12:01 amMike Hansberry says:
Isiah,
Given the distinction in rights of citizens of a state and as citizens of the United State, how did Bingham understand art4, sec2?
Did Bingham believe a citizen traveling to another state was entitled the same P&Is as other citizens of the state he was visiting, or did Bingham believe the visitor carried P&Is relating to Federal citizenship?
Do you believe dropping the words “in the several states” would have no effect? Compare the two statements below.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States in the several states.
March 1, 2010, 12:22 amPubliusFL says:
Nobody disputes that. The question is whether states are obliged to respect the rights (as citizens of the United States) of United States citizens who reside within their borders. Some of us believe that such citizens would be included in the language Bingham repeatedly used such as “every citizen of every state.” Mr. Aldridge doesn’t.
March 1, 2010, 12:24 am