[Editors' note: for this guest post we welcome Professor Kurt Lash (Illinois ) with a response to recent posts by Chris Green].
My thanks to Michael Ramsey for inviting me to post this brief response to Christopher Green’s recent six-part (!) series of posts on my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press 2014). I’ve enjoyed the responses to the book I’ve received at talks around the country this year, and I invite those who can to attend the forthcoming February program sponsored by the Stanford Law School Constitutional Law Center.
I am very pleased that both Prof. Green and the Originalism Blog believe that my book warrants such a serious and extended investigation. Despite the critical nature of Green’s comments, I actually found them quite encouraging. Green defeats an argument I do not make, and his evidence powerfully supports one of my book’s central ideas.
Those who have read both my book and Green’s posts likely already know this. Those who have read only the latter might want to take a look at a series of posts I wrote for the Volokh Conspiracy. There, in a few short essays, I summarize the book’s basic arguments and present some of the more critical aspects of the historical record. In brief, the book argues that the Privileges or Immunities Clause of the Fourteenth Amendment refers to those personal rights of American citizenship that are textually expressed in the federal Constitution. These rights include not only the substantive liberties listed in the first eight amendments, but also the equal protection rights of Article IV’s Comity Clause, the protections of the Habeas Clause, and all other personal rights listed in the federal Constitution.
For reasons I don’t quite understand, Green insists on characterizing my theory as the Incorporation, Total Incorporation and Nothing But Incorporation, or “ITINBI” approach. This is a terribly misleading phrase. Whatever Green’s nuanced understanding of this term, it is likely to mislead readers into thinking that I follow Justice Hugo Black’s idea that the Privileges or Immunities Clause protects nothing more than the rights of the first eight amendments which have been (or ought to be) “incorporated” into the Fourteenth Amendment. As Green knows, this is not my approach. Instead, I argue in favor of what I call the “enumerated rights” understanding of the Privileges or Immunities Clause. As explained above, this reading includes all constitutionally enumerated personal rights and not just those listed in first eight amendments.
The enumerated rights understanding of the Privileges or Immunities Clause understands the text to includethe equal protection rights of Article IV’s Privileges and Immunities Clause—the so-called Comity Clause. Throughout his six posts, Green presents evidence that the Fourteenth Amendment was understood to include the equality protections of the Comity Clause as described in antebellum decisions like Corfield v. Coryell. Green repeatedly accuses me of ignoring or downplaying evidence suggesting that this was part of the original understanding of the Privileges or Immunities Clause.
Green is quite wrong about this. My book presents an abundance of evidence supporting a reading of the Clause that includesthe rights of equal protection as declared in the Comity Clause and in cases like Corfield. I am thankful for Green’s exhaustive work which provides even more evidence that this was part of the original understanding of the Clause. I cheerfully accept everything he has to offer on this subject as a friendly addition to similar evidence I present in my book.
Of course (and here I’m not sure whether or not Green agrees), I also argue that the public that ratified the Privileges or Immunities Clause also understood that Clause to protect more than just the rights of equal protection. Speakers high and low in the critical year of 1866 declared that the rights of American citizenship included the substantive rights enumerated in the federal Constitution, including the rights of speech, press, assembly, petition, the right to bear arms, the rights of due process, protection against cruel and unusual punishments, and the rights of habeas corpus. There was a broad consensus that if a right was announced in the federal Constitution then it ought to be considered a right of national citizenship protected against abridgement by the states.
As one might expect, this was not a unanimous view. Radical Republicans argued in favor of a broader conception of national citizenship, one that would give the federal government control over the entire subject of common law civil rights. On the opposite side of the spectrum, Conservative Republicans wanted to enforce the equal protection norms of the Comity Clause—and nothing else. The broad middle, however, rejected both Radical and Conservative theories and stuck with an idea that everyone could understand and that most people embraced: States should respect those rights announced in the federal Charter--all of them, from the equal rights of the Comity Clause to the substantive rights of the first eight amendments. My book presents no more than the tip of the iceberg of historical evidence supporting this reading. If Green hopes to refute this copious body of evidence in his forthcoming book, he has a tough row to hoe.
On the other hand, I also argue in the book that the evidence does not support reading the Privileges or Immunities Clause as somehow transforming the equal protection rights of the Comity Clause into absolute national rights. The Moderate Republicans in the 39th Congress would never have drafted, much less passed, an amendment that nationalized the entire subject of common law liberties—a subject that would have included everything from tort, property and contract law to “the pursuit of happiness.” Moderates wanted to secure more than equal protection, but they did not want to nationalize the entire subject of local civil rights. For example, moderate Republicans were so intent on avoiding such a result that they successfully removed the term “civil rights” from the Civil Rights Act of 1866, lest the statute be construed as implying federal power to control the substance of civil rights in the states.
Green claims that I ignore or misconstrue evidence suggesting that framers like Jacob Howard insisted that the Privileges or Immunities Clause transformed the equal rights of the Comity Clause into the absolute rights of national citizenship. For example, Green points to the following post-ratification 1869 speech by Jacob Howard that Green claims is “powerful evidence” Howard embraced the transformed Comity Clause theory:
The occasion for introducing the first section of the fourteenth article of amendment into that amendment grew out of the fact that there was nothing in the whole Constitution to secure absolutely the citizens of the United States in the various States against an infringement of their rights and privileges under the second section of the fourth article of the old Constitution. That section declares that--"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
There it was plainly written down. Now, sir, it seems to me, that unless the Senator from Vermont and the Senator from Massachusetts can derive the right of voting from this ancient second section of the fourth article upon the ground that the citizens of each State are entitled to all the privileges and immunities of citizens of the several States, they must give up their argument; and I assert here with confidence that no such construction was ever given to the second section of the fourth article of the Constitution.
Contra Green, there is nothing in this passage that suggests Howard believed that the equally protected rights of the Comity Clause had been transformed into absolute national rights. Howard believed that the Privileges or Immunities Clause protected Article IV Comity Clause rights along with other enumerated rights. Howard did not believe, however, that the Fourteenth Amendment nationalized the rights of suffrage. In the passage above, Howard simply points out to his colleagues that the Comity Clause had never been understood as securing to anyone the rights of suffrage. If the Comity Clause did not provide that right to anyone (visitor or resident), then neither did the Fourteenth Amendment.
Perhaps Green is led astray by Howard’s use of the word “absolute” in the above passage—but that reference does not signal a transformed understanding of the equality rights of the Comity Clause. Instead, However is referring to what had been the oft-repeated concern that Congress be granted express power to directly (absolutely) enforce the Comity Clause. Howard and his colleagues accomplished this by passing an amendment that bound the states to protect the enumerated rights of national citizenship (including those enumerated by the Comity Clause) and granted Congress power (under Section Five) to enforce these rights. No other reading makes sense given that Howard opposed nationalizing unenumerated local civil rights. As Howard explained soon after submitting the Fourteenth Amendment,
[If we allow congressional control of suffrage and property rights] we may go through all the details of State policy, State legislation, and individual rights, as regulated by the constitutions of the States .... What, then, becomes of State rights? ... It denies to the people of the States almost all, yes, all, substantially, of those original and immemorial rights which have been exercised by the people of the States ever since the dissolution of our connection with Great Britain.
Howard, like other Moderate Republicans, believed in Federalism. He would never have supported an amendment that transformed the unenumerated subjects of local common law into congressionally controlled absolute national rights. This is the only reading that makes sense of all of Howard’s speeches and statements.
In sum, Green’s “powerful” post-ratification evidence of a transformed Comity Clause turns out to be no evidence at all. Green’s posts are full of similar assertions about the historical record that he believes point in one direction, but that I believe point in another. Rather than try to craft a blog post (6?) that engage all of Green’s claims, I encourage everyone to read my book (of course!) and decide for themselves. If our exchange encourages readers to dive more deeply into the history of the Privileges or Immunities Clause, then all to the better.
Chris Green is a formidable scholar (and a truly nice guy) and I look forward to the publication of his own book on the Fourteenth Amendment. I imagine I will agree with many of his arguments. For the moment, however, I continue to believe that there is good reason to believe that the people of 1868 embraced a simple and powerful idea: States must henceforth be bound to protect all the rights of personal liberty expressly listed in the people’s Constitution—and nothing more.
[Further editors' note: Chris Green's posts are here: Part 1, Part 2, Part 3, Part 4, Part 5, and Part 6.]