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I asked Philip Hamburger if he wished to respond to Friday’s blog posts here at the VC about his new draft article, Privileges or Immunities. He graciously agreed to respond. I have reposted his response below:

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I am grateful to Jim for linking my paper, to Orin for starting the conversation, and to Randy for his analysis. For what it’s worth, I will add my own two cents–first by explaining the argument in my paper.

1. The Argument. My thesis focuses on free blacks. Since at least 1821, there was a nationally prominent dispute as to whether free blacks were entitled to the benefit of the Comity Clause. In this controversy, both sides ended up agreeing that Comity Clause rights belonged only to citizens of the United States. In this context, opponents of slavery asserted the Comity Clause rights of free blacks in terms of “the privileges and immunities of citizens of the United States,” and the Fourteenth Amendment’s Privileges or Immunities Clause constitutionalized this interpretation of the Comity Clause.

This conclusion rests on a simple methodological point: context matters. For example, in the context of arguments on behalf of slaves and abolitionists, some publications urged that such persons had First Amendment and other federally protected rights against states–the explanation being that these were among “the privileges and immunities of citizens of the United States.” At the same time, however, in the context of arguments for the rights of free blacks, the phrase was more used in another way: as a label for their Comity Clause rights. The phrase thus had different meanings in different contexts, and it is therefore important to inquire about which context led to the adoption of the phrase in Fourteenth Amendment.

There is much evidence that the relevant context was the debate over the Comity Clause rights of free blacks. Indeed, one can trace a direct line from the Comity Clause debate to the adoption of the Fourteenth Amendment–a line that, toward the end, included the demands of free blacks in 1858, Bingham’s speeches in 1859 and 1866, and Shellabarger’s 1866 Privileges and Immunities Bill. Thus, once it is recognized that the phrase “the privileges and immunities of citizens of the United States” was used in different ways in different contexts, a direct genealogy of context, text, and meaning can show how it was used in the Fourteenth Amendment.

Although the existing scholarship is very learned, it unfortunately misses much significant evidence and mostly fails to acknowledge the significance of context. For example, it completely misses the racism and real significance of the fundamental rights language in Corfield. It focuses so much on what the Comity Clause protected that it almost entirely misses the debate over who was protected, which was what mattered so profoundly for blacks. The scholarship also largely misses the Privileges and Immunities Bill, which is a key piece of evidence about the drafting of the Fourteenth Amendment. Last but not least, the scholarship fails to recognize the importance of the national movements in the 1870s for amendments that would incorporate the First Amendment against the states. These movements are revealing because, beginning in 1870, the demands for such amendments were based on the assumption that the Constitution had not already incorporated the Bill of Rights.

In short, my thesis rests on a familiar methodological point about context and an unfamiliar range of evidence. And if the incorporation theory is correct, it needs to deal with all of this evidence, including the evidence about contextual distinctions.

2. Randy’s Objections: The 1866 Speeches. It is gratifying to engage with Randy on the Privileges or Immunities Clause. Here, as always, his persuasive powers are formidable, but whether the evidence really supports his objections is another matter.

Randy’s main objection to my paper is that it treats the Fourteenth Amendment’s words “the privileges or immunities of citizens of the United States” merely as a label for Comity Clause rights. This, however, is how the phrase was used by anti-slavery campaigners in disputes about the rights of free blacks. These disputes were the central, nationally debated context in which Americans used the phrase. And in these controversies, free blacks and whites–not least, John Bingham–clearly used the phrase to refer to Comity Clause rights.

Randy does not question any of this, but relies on the later, 1866 speeches by Bingham and Howard to suggest that “the privileges or immunities of citizens of the United States” alluded not only to Comity Clause rights but also to the Bill of Rights. To be sure, Bingham and Howard mentioned the Bill of Rights, but it is worth pausing to consider the context in which they made these allusions. Just because they talked about the Bill of Rights does not mean they were talking about it in the context of the Privileges or Immunities Clause.

The details of this point appear in my paper, but consider, for example, this statement by Bingham about equal protection:

[I]n the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar the national courts for the violation of their oaths and of the rights of their fellow men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

This assertion about the Bill of Rights came in the context of an argument about equal protection. Does this mean that the Privileges or Immunities Clause incorporated the Bill of Rights against the states? Or that the Equal Protection Clause and Congress’s power to enforce it would, in effect, secure blacks in the rights enumerated by the Bill of Rights?

Inasmuch as Bingham linked equal protection and the Bill of Rights, Randy protests too much when he says that this linkage is bizarre. Any such complaint should be leveled at Bingham, not me.

Indeed, it would be interesting to get the incorporationist view of some of Bingham’s other statements in his speech–for example, those that make clear that the Amendment was merely enforcing existing limits on the states. At one point, Bingham generally exclaimed: “Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment?” He explained:

The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question, and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States.

In other words, the Amendment merely enforced already existing constitutional limits that were “addressed by the people in the Constitution to the States and the Legislatures of States.” Is it to believed that the existing limits addressed to the states included the Bill of Rights, which began “Congress shall make no law . . .”?

The 1866 speeches contain no clear evidence about incorporation, and much evidence that clearly cuts against it. In these circumstances, how should the speeches be understood? Is it enough to find that they mentioned the Bill of Rights? Or must the other evidence also be considered? The answer is obvious.

3. Obstacles to the Incorporation Thesis. A common problem with the incorporation debate is the way it is framed. Too often, it is couched in terms of the supposed evidence for incorporation. But this is too narrow. Instead, the question needs to be framed more generally in terms of the evidence about the Privileges or Immunities Clause–regardless of whether the evidence is for or against incorporation.

From this broader perspective, it is necessary to include the evidentiary obstacles to incorporation, and these obstacles are numerous. One obstacle is simply the context, which was an effort to protect the Comity Clause rights of free blacks. Other impediments, as noted above, are the very speeches cited by incorporationist scholars. Yet other problems include Shellabarger’s Privileges and Immunities Bill in 1866 and the amendment campaigns that began in 1870s. Incorporationists tend to be silent about all of these matters. But they need to addresses such points if the incorporation thesis is to be persuasive.

The most notable obstacle to the incorporation thesis is the Fourteenth Amendment itself. Although the Bill of Rights does not confine its guarantees to citizens, the Fourteenth Amendment carefully distinguishes persons and citizens–providing due process and equal protection to persons, and privileges or immunities only to citizens. Does the Amendment’s phrase “the privileges or immunities of citizens of the United States” refer to rights that were not restricted to citizens? Indeed, that were open generally to persons?

One might, in defense of incorporation, hasten to conclude that the framers just made a drafting error. But the debates confirm the importance of the distinction. For example, Bingham asked:

[I]s it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person[s] . . .?

Similarly, Howard, noted that the first clause of Article I “relates to the privileges and immunities of citizens of the several States,” and like Bingham, he distinguished this from the remaining clauses, which related to “the rights and privileges of all persons, whether citizens or others.”

Thus, both the text and the debates thus took care to distinguish the rights of persons and the privileges or immunities of citizens. It is therefore difficult to understand how the guarantee to citizens could have incorporated the rights that the Bill of Rights secured to persons.

Categories: Constitutional History, McDonald v. City of Chicago    

    27 Comments

    1. JohnF says:

      What were the federal privileges and immunities that citizens had, if not at least the protections of the Bill of Rights? The only items that define the privileges and immunities of citizens, as U.S. citizens (as opposed to citizens of the states), are the Constitution and laws of the U.S. So what privileges and immunities do we have as U.S. citizens beyond those given to us in the Constitution? And if the 14th Amendment extends our federal privileges and immunities from merely being protections against the U.S. government to protections against the states, then doesn’t it follow that we should be rummaging around the Constitution to see what U.S. citizens are privileged to do, and immune from question over? What other document would you find those privileges and immunities listed in?

      March 1, 2010, 12:04 am

    2. Andrew says:

      Professor Amar has addressed Professor Hamburger’s primary objection, as follows:

      Can we really say that the Bill’s “rights” and “freedoms” are truly privileges and immunities of “citizens of the United States?” Of course we can. In ordinary, everyday language we often speak of the United States Constitution and Bill of Rights as declaring and defining rights of Americans as Americans. Surely our Constitution is not centrally about declaring, say, the rights of Frenchmen qua Frenchmen, or the Chinese qua Chinese. This ordinary, everyday understanding of the Constitution is emblazoned in the Preamble in words quite familiar to every generation of Americans since the Founding: “We the People of the United States, in Order to … secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States.”

      This ordinary understanding is not in the least bit damaged by the technical objection to incorporation that Professor Louis Henkin has raised: “[T]he provisions of the Bill of Rights are not rights of citizens only but are enjoyed by non-citizens as well.” [130] Surely the fact that Americans may often extend many benefits of our Bill to, for example, resident aliens-for reasons of prudence, principle, or both-does not alter the basic fact that these rights are paradigmatically rights of and for American citizens. Indeed, others may enjoy certain benefits only insofar as they interact with American citizens-typically because they either live on soil governed by American citizens or do things with important effects on American citizens. Peripheral applications of the Bill should not obscure its core.

      In any event, Henkin’s technical objection collapses under the weight of its own anachronism. At the time of the Fourteenth Amendment, the best [Page 1223] known case on the scope of the Bill of Rights was none other than Dred Scott, which involved, among other issues, questions arising under the due process clause of the Fifth Amendment. Dred Scott declared the rights in the Bill to be not simply privileges, but “privileges of the citizen. ” [131] This passage must be read in combination with the rest of the opinion, holding that because Dred Scott was not a citizen of the United States, he could not enjoy the privilege of diversity jurisdiction-or indeed, any of the “rights, and privileges, and immunities, guarantied by the Constitution to the citizen.” [132] The central meaning and logic of the opinion, which took pains to stress the words of the Preamble, [133] was that the Constitution and the Bill of Rights were ordained and established by citizens of the United States, and for their benefit only.

      Surely the framers of the Fourteenth Amendment were entitled to rely on Supreme Court interpretations in Dred Scott no less than in Barron, even as they sought to overrule them using “Simon Says” language suggested by the Court itself. [134] And once again, it is clear that they did so rely. John Bingham, the main author of Section One, not only cited to Dred Scott in a speech before the House in early 1866, but quoted the following key language: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms.” [135] In the Senate debates on the Fourteenth Amendment, the most extended and authoritative discussion of Section One came from Jacob Howard, and he too made plain that the language chosen was in response to Dred Scott: [136]

      [I]t is a fact well worthy of attention that the course of decision in our courts and the present settled doctrine is, that all these immunities, privileges, rights thus guarantied … or recognized by [the first eight amendments to the Constitution] are secured to the citizen solely as a citizen of the United States ….

      Though many aspects of Dred Scott were highly offensive to members of the Thirty-ninth Congress, there was widespread support for the idea that the Bill of Rights was paradigmatically, even if not exclusively, a catalogue of privileges and immunities of “citizens.” [137] Nor was this locution anything new or startling. In both Nunn and Campbell, for example, Chief Justice Lumpkin had described the Bill of Rights as protecting “citizens.” [138]

      March 1, 2010, 12:07 am

    3. Andrew says:

      Oops, here’s the correct link:

      http://www.saf.org/LawReviews/Amar1.html

      Also, note that Joseph Story wrote this in his Commentaries: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.”

      March 1, 2010, 12:14 am

    4. J. Aldridge says:

      IMHO, Prof. Hamburger would be smart to point out when Bingham and Howard referred to the Bill of Rights that they made it clear they were speaking of rights of United States Citizens as such, and not citizens of a state.

      Remember Bingham complained how United States citizens could claim protections of rights from the United States while in another country but could not from any state of the Union.

      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.”

      March 1, 2010, 12:16 am

    5. J. Aldridge says:

      Andrew: Professor Amar has addressed Professor Hamburger’s primary objection, as follows:

      Amar is blind to the fact Bingham used the phrase “bill of rights” to refer to Article IV, Section II and Due Process and not the entire eight amendments. This makes anything he has to say very suspect.

      March 1, 2010, 12:19 am

    6. Andrew says:

      Mr. Aldridge, on February 28, 1866 Congressman Bingham said the following (emphasis added):

      A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the federal government to enforce in the United States courts the bill of rights under the articles [plural] of amendment had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment….I read one other opinion on this subject—the case of the lessee of Livingston v. Moore….”which relies on the seventh article of those amendments.”

      This seems to contradict your assertion that Bingham used the phrase “bill of rights” to refer to Article IV, Section II and Due Process only.

      March 1, 2010, 12:55 am

    7. J. Aldridge says:

      Andrew: This seems to contradict your assertion that Bingham used the phrase “bill of rights” to refer to Article IV, Section II and Due Process only.

      I think you are reading Bingham way out of context. Here is what he was asked that raised the whole question of the bill of rights in this instance:

      Mr. BINGHAM. The gentleman [HALE] will allow me to ask him to point to a single decision. The gentleman says that the sufficiency of the Constitution has been tested and found in the past. I ask him now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? Where is the decision? I want an answer.

      Mr. HALE. The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning. I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of the liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.

      Mr. ELDRIDGE. I wish to know if the gentleman from Ohio [Mr. BINGHAM] has found or heard of a case in which the Constitution of the United States has been pronounced to be insufficient?

      Mr. HALE. I would rather leave these gentlemen to answer one another at some other time, if it will answer their purposes as well.

      Mr. BINGHAM. I beg leave to say that I am ready to answer the gentleman now, and to produce such a decision [Barron], whether the gentleman from New York is or is not.

      Mr. HALE. This is no doubt a very interesting side issue; but the gentlemen will pardon me if I prefer to go on with my own speech now, and leave them to make theirs in proper order.

      The very next day Bingham responds:

      Mr. BINGHAM. Yes, sir, in the debate. A gentleman [Mr. ELDRIDGE] on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment. Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts.

      So here it is very clear Bingham was only referring to the “protection by the prosecution of a suit” in federal court as found under bill of rights in the 5A, which every citizen had protection to under Article IV P&I’s wherever they traveled in the Union outside of their state, but was never enforced.

      March 1, 2010, 1:29 am

    8. Andrew says:

      On the pretense of providing context, you have deleted Bingham’s sentence about Livingston v. Moore and the Seventh Amendment. I do not find you to be a straightforward interlocutor, Mr. Aldridge.

      March 1, 2010, 1:33 am

    9. J. Aldridge says:

      Andrew: On the pretense of providing context, you have deleted Bingham’s sentence about Livingston v. Moore and the Seventh Amendment. I do not find you to be a straightforward interlocutor, Mr. Aldridge.

      It makes no difference. Bingham was only interested in enforcing the “bill of rights” as pertained to United States citizens under Article IV, Section II. One of the P&I’s of Article IV protections was protection in life, liberty and property as mentioned under due process of the 5A. But he said on Feb 28 the protections of due process belongs to strangers and aliens as well and so included it separately from Article IV P&I’s.

      March 1, 2010, 1:44 am

    10. Andrew says:

      Good night.

      March 1, 2010, 1:46 am

    11. gwinje says:

      I thought to myslef, “wlel, I guest i dont haev to drink wehn other peopl say ‘binghma’ so I migth be aright./ I was wgorn,. and am now durnk.

      March 1, 2010, 2:38 am

    12. Jacobo says:

      Oh God. Here we go again. Forget drinking games, I still prefer the dualing piece to this one.

      March 1, 2010, 8:35 am

    13. Jacobo says:

      Agh. I meant dueling.

      March 1, 2010, 8:47 am

    14. Eric Rasmusen says:

      Thanks for keeping comments open on this post. Academic debates are exactly the kind of posts that benefit from intelligent commentors, both because they bring in new ideas and facts and because refutations of the poster are possible and useful.

      March 1, 2010, 9:38 am

    15. Kharn says:

      I’m not exactly sure how someone can truthfully argue that the 14th Amendment was talking about anything other than the rights enumerated in Dred Scott.

      March 1, 2010, 5:47 pm

    16. Mike Hansberry says:

      If Hamburger is correct, why did Shellabarger name his bill “A Bill To declare and protect all the privileges and immunities of citizens of the United States in the several states”, and yet the phrase “in the several states” does not appear in 14A?

      No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

      Of course context matters, but the plain text, as well as the absence of certain key text from the supposed precursors, ought to matter as well. If the above portion of the 14A was meant to accomplish the very same thing as, and nothing more than, Shellabarger’s P&I bill, why was that language -limiting the reach of both the comity clause and Shellabarger’s P&I bill to the protection of citizens in states other than the state in which the reside -not included in 14A?

      March 1, 2010, 6:16 pm

    17. Andrew says:

      And why is Shellaberger’s P&I Bill more important than Wilson’s P&I Bill?

      March 1, 2010, 7:17 pm

    18. tom van dyke says:

      Many might be surprised that many of the “free” states disenfranchised free blacks, and many of the territories banned them from coming in. There were various other indignities as well.

      http://www.occidentaldissent.com/american-racial-history-timeline/

      Slavery wasn’t the only denial of rights or privileges or immunities for black folk, nor were these denials confined to the slave states. It was extensive and ubiquitous, and this context seems necessary to evaluate Prof. Hamburger’s argument.

      March 1, 2010, 7:36 pm

    19. Mike Hansberry says:

      Andrew,
      I don’t know -if you have a link I would like to read Wilson’s proposal.

      Shellabarger’s P&I Bill does seem important to Hamburger’s thesis, so I questioned a seemingly significant difference between Shellabarger’s phrasing and 14A.

      March 1, 2010, 7:49 pm

    20. J. Aldridge says:

      Andrew: And why is Shellaberger’s P&I Bill more important than Wilson’s P&I Bill?

      Because him and Bingham were close friends who worked together explaining bills (and the 14A) to the House and his was a leading Radical. And also his P&I bill was seen as protecting the same P&I’s as did the civil rights bill of 1866.

      March 1, 2010, 7:55 pm

    21. J. Aldridge says:

      Mike Hansberry: If Hamburger is correct, why did Shellabarger name his bill “A Bill To declare and protect all the privileges and immunities of citizens of the United States in the several states”, and yet the phrase “in the several states” does not appear in 14A?

      Probably for the same reason why Bingham referred to the “privileges and immunities of citizens of the United States in the several states” as the “privileges or immunities of citizens of the United States” before he had inserted that phrase under the 14A in late April of 1866: both phrases explain the exact thing.

      March 1, 2010, 8:03 pm

    22. Mike Hansberry says:

      J. Aldridge: Probably for the same reason why Bingham referred to the “privileges and immunities of citizens of the United States in the several states” as the “privileges or immunities of citizens of the United States” before he had inserted that phrase under the 14A in late April of 1866: both phrases explain the exact thing.

      Perhaps “magically” was the word you were grasping for. The comity clause must indeed be magic if one can add phrases and remove others without altering its exact meaning.

      March 1, 2010, 8:47 pm

    23. J. Aldridge says:

      Mike Hansberry: Perhaps “magically” was the word you were grasping for. The comity clause must indeed be magic if one can add phrases and remove others without altering its exact meaning.

      Not at all. The fact Article IV, Section II can be referred to as the “comity clause” and not the “privileges and immunities of citizens of the United States in the several states” makes no change in the original meaning.

      March 1, 2010, 10:24 pm

    25. J. Aldridge says:

      Andrew: Here’s a link to the Wilson bill.Note especially section 12.

      Sounds like he is just reinforcing what I been saying about the P&I’s not applying to citizens under their own state.

      March 2, 2010, 3:54 am

    26. Andrew says:

      Yes, they were concerned about enforcing rights of a person visiting one state from another state. My point is simply that that does not preclude the existence of other rights too, as section 12 makes very clear.

      March 2, 2010, 9:40 pm

    27. J. Aldridge says:

      Andrew: My point is simply that that does not preclude the existence of other rights too, as section 12 makes very clear.

      I think all that says is additional rights states may decide to extend to other citizens.

      March 3, 2010, 8:53 am