This morning Professor Philip Hamburger graciously responds to my blog post reacting to his new paper on Privileges or Immunities. In an email, he also gave me permission to quote his paper. I should mention that Philip and I have been friends for many years, and I have always considered him to be both a gentleman and a scholar. In his response he summarizes nicely the thesis of his paper.
Teaching and other commitments today prevent me from fully responding, so I thought I would instead post Senator Jacob Howard’s explanation of the Privileges or Immunities of Citizens of the United States in Section One of the proposed Fourteenth Amendment.
The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. . . . It is not, perhaps, very easy to define with accuracy what is meant by the expression “citizen of the United States ” although that expression occurs twice in the Constitution, once in reference to the President of the United States, in which instanut it is declared that none but a citizen of the United States shall be President, and again in reference to Senators who are likewise to be citizens of the United States. Undoubtedly the expression is used in both those instances in the same sense in which it is employed in the amendment now before us. A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. Before the adoption of the Constitution of the United States, the citizens of each State were, in a qualified sense at least, aliens to one another, for the reason that the several States before that event were regarded by each other as independent Governments, each one possessing a sufficiency of sovereign power to enable it to claim the right of naturalization; and undoubtedly, each one of them possessed for itself the right of naturalizing foreigners, and each one, also, if it had seen fit so to exercise its sovereign power, might have declared the citizens of every other State to be aliens in reference to itself.
With a view to prevent such confusion and disorder, and to put the citizens of the several States on an equality with each other as to all fundamental rights, a clause was introduced in the Constitution declaring that” the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
The effect of this clause was to constitute ipso facto the citizens of each one of the original States ctizens of the United States. And how did they antecedently become citizens of the several States? By birth or by naturalization. They became such in virtue of national law, or rater of natural law which recognizes persons bore within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States. They are, by constitutional right, entitled to these privileges and immunities, and may assert this right and these privileges and immunities, and ask for their enforcement whenever they go within the limits of the several States
of the Union.
It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. — It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. Indeed, if my recollection serves rap, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a ease adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield vs. Coryell, . . . Judge Washington says:
“The next question is whether this aot infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’ The inquiry -what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are In their nature fundamental, which belong of right to the citizens of all free Governments and which have at all times been enjoyed by the citizens of the several States whice compose this Union from the time of their becoming free, independent, and sovereign What these fundamental principles are it would, perhaps, be more tedious than diffllenlt to enumerate. They may,however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of the citizen of one State to pas through or to reside In any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, maybe mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franehise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manfestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”‘
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virte.of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present 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. They do not operate in the slightest degree as a restraint or prohibition upon State legislation.
States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress. Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.
In his paper, Philip offers this explanation of what Howard is here discussing:
Howard, however, was not speaking merely of the Privileges or Immunities Clause. Instead, he was more generally referring to “the first section of this amendment,” including not only the clause on privileges or immunities but also the clauses on equal protection and due process. All of these clauses effectively ensured that blacks could not be denied the benefit of state bills of rights. Accordingly, when Howard spoke about the “the principles embraced in” the federal guarantees of rights, it is by no means clear that he was speaking of incorporation. On the contrary, he seems to have been suggesting that the states would have to respect these principles, as stated in their own bills of rights, under all three clauses of the Amendment’s first section.
This seems implausible. Howard himself complained that state constitutions could be changed at the whim of the states. And he then read a list of rights in the Bill of Rights. I agree that he was invoking these as “principles,” which is why he would not be bothered by the fact that the First Amendment begins “Congress shall make no law. . . .” [Neither would he have been bothered by the militia preamble to the Second Amendment, which he did not repeat when listing these guarantees.] “Incorporation” of the Bill of Rights is a Twentieth Century concept. [When the Supreme Court first extended the ‘takings principle’ to the states, Justice Harlan’s opinion did not mention the Fifth Amendment.] But the “fundamental principles” in the Bill of Rights–and also referred to in Article IV section 2–were now going to be applied to the states.
If I have time, I may post Bingham’s explanation in its entirety, and also Chief Justice Taney’s explanation of what were the privileges or immunities of citizens of the United States that free blacks could not enjoy because they could never be citizens. But I must be going now.