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01/28/2013

Hyman on 27A incorporation
Chris Green

Andrew Hyman comments regarding my 27A post:

In a recent blog post titled “27A Incorporation”,  Chris Green asked: “If ‘privileges or immunities of citizens of the United States’ in the 14A just means ‘privileges given in the Constitution' … would a state pay increase given to legislators without an intervening election violate the Privileges or Immunities Clause?”  I say no, for at least two reasons. 

First, historically speaking, a right was not originally considered a “privilege” belonging to citizens unless citizens could vindicate that right (e.g. see page 1188 of this law review article by Rob Natelson).  Citizens normally have no standing to sue as taxpayers, except regarding certain Establishment Clause issues (see Flast v. Cohen, 392 U.S. 83 (1968)).  No vindication right, so no privilege. 

I’m not saying that no one on Earth could sue regarding a pay increase without intervening election, but rather am saying only that Joe taxpayer very probably could not.  A member of Congress would have a much stronger case for standing, and in fact the current Speaker of the House, John Boehner, is a case in point.  When he sued, then-Judge Ruth Bader Ginsburg agreed with Boehner that he was injured even though he was protesting a pay increase rather than a pay decrease.  The increase made Boehner look bad in the eyes of his constituents, said Boehner and Ginsburg (see Boehner v. Anderson, 30 F.3d 156 (1994)).

My second reason for answering "no" to Chris's question is that constitutionally-protected privileges and immunities (under both Article IV and Amendment 14) have always been limited to those which are “fundamental guarantees”, as Senator Jacob Howard put it when he introduced the Fourteenth Amendment in Congress.  The U.S. Supreme Court has said the same thing about Article IV.  I doubt whether the 27thAmendment confers a right that is any more fundamental than, say, the Seventh Amendment, which has never been considered fundamental by the U.S. Supreme Court.  And note that Senator Howard was among those who believed that “privileges or immunities of citizens of the United States” in the 14A just means “privileges given in the Constitution”.  Indeed, every single privilege that he described was one that he suspected was already a constitutional restraint upon the federal government, though he acknowledged that SCOTUS had not yet confirmed his suspicion.

Anyhow, each of these two reasons standing alone should be sufficient to answer Chris's interesting question.  There may be other reasons that have not popped into my head.

For my part, I'm not sure that's the right reading of Howard's introduction of the 14A to the Senate, but Andrew helpfully reminds me of another way to read famous page 2765 of the Congressional Globe.  I'm also not sure why the Establishment Clause rights of taxpayers should be greater than their 27A rights.  Many regard the lack of distinction between the Establishment Clause and other rights as a reductio of Flast, of course.