Isiah Kant: 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.

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.

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.

BINGHAM: “I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.”

Priceless.

PubliusFL: 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.

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.

J. Aldridge:
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.

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.

Andrew: Mr. Aldridge, it’s not true that I have offered no evidence.

* “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.”

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.

* “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?

Andrew: J. Aldridge: How does that change the fact he [Bingham, drink up] 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???????

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).

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.

30yearProf: The consistency over the years has always struck me as very strong evidence that everyone had the same understanding.

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.

to have the full benefit of all laws and proceedings concerning personal liberty, personal security, … including the constitutional right to keep and bear arms, shall be secured to and enjoyed by all the citizens of such State… .

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

…these great fundamental guarantees:… the personal rights guaranteed by the first eight amendments … such as …the right to keep and bear arms… .

and with John Bingham’s 1871 statement that

…that the scope and meaning of the limitations imposed by the 1st section, …the privileges and immunities of citizens of the United States… are chiefly defined in the first eight amendments to the Constitution… .

The consistency over the years has always struck me as very strong evidence that everyone had the same understanding.

J. Aldridge: How does that change the fact he [Bingham, drink up] 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???????

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.

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.

J. Aldridge: 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.

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)?

tom van dyke: 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.

tom van dyke: 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.

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.

tom van dyke: 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

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.

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.

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.

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.

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.

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.

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.”

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???????

[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.

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.

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.

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.

:-)

jrose:
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 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.

BINGHAM: I respectfully ask him [HALE] 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?

Priceless.

PubliusFL: Of course I can’t. The Republicans’ whole complaint was that the P&I clause was not enforced. Hence that whole 14th Amendment thing?

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.

J. Aldridge:
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?

Of course I can’t. The Republicans’ whole complaint was that the P&I clause was not enforced. Hence that whole 14th Amendment thing?

Andrew: 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.

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.