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:
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.