David Upham sends this response to Andrew Hyman (background: Professor Upham has this post at Liberty Law Blog, and this longer article, on the Fourteenth Amendment and interracial marriage. Andrew Hyman commented here, arguing that the protection for interracial marriage is best seen as arising from the equal protection clause, not the privileges or immunities clause). Professor Upham writes:
The silence as to the Equal Protection Clause, both in my blog post and my article, arises from two causes. First, the silence is appropriate because the historical record is silent. I am aware of no one, whether for or against the Amendment, whether for or against black citizenship, whether for or against racial-endogamy laws, who noted any possible conflict between such laws and the enjoyment, of all persons within a state's territorial jurisdiction, of the equal protection of the laws.
In contrast, there is significant evidence that some persons identified the Privileges or Immunities Clause as the particular clause of the Amendment that might adversely affect racial-endogamy laws.
Unfortunately for our disagreement, participants in the adoption and early interpretation of the Amendment had the annoying habit of not clearly distinguishing the effects of the four clauses of Section 1. So in some cases, Section 1 as a whole was indiscriminately invoked.
Second, the silence arises from my avoiding the need to both assert and defend, against all possible objections, a theory of the "privileges and immunities of citizens of the United States." I provide a very partial account here as to the antebellum understandings (and the plural is important) of the "privileges and immunities of citizens": http://ssrn.com/abstract=2107460 .
Here I can briefly respond to four of his objections.
1. A privilege of citizens of the United States must be found in the Constitution. I believe this does violence to the text and the known history of our federal Constitution. American citizenship is anterior to the Constitution. The Constitution is the creature of the citizenry, and not the other way around. American citizenship arose, at least as early as 1776. See, for instance, Article I's durational citizenship qualifications.
2. Congress must be bound to respect such privileges. Agreed, though such an obligation arises either from the express text of the Constitution (such as the Privileges and Immunities Clause--which plainly binds the federal government as well as the states) or from principles coextensive with the Constitution itself--the presuppositions or "backdrops" (to use Stephen Sachs's phrase). Congress would have no authority, for instance, to prohibit its citizens from participating in the territorial sovereignty of the people--that is from traveling, residing, purchasing real estate within the United States--even if the Constitution consisted exclusively in the first three articles.
3. My theory, which relies on Corfield [ed: i.e., Corfield v. Coryell, see here], supports "unenumerated" rights that are open to judicial activism. Not really, the rights are enumerated throughout the Anglo-American legal tradition, principally the state constitutions--they have been enjoyed in ALL free governments and in ALL the united states at the Founding. To identify these rights may be tedious, even difficult, but these privileges have a strict, conservative definition. They admit of no purported right to abortion or to redefine marriage, for instance.
4. Dred Scott is inapposite. To the contrary, Chief Justice Taney's opinion seems to identify the following rights that free blacks would enjoy, as citizens of the United States, if they were citizens; all of these privileges, I believe would satisfy the Corfieldian definition, but some of which are not enumerated separately in the federal Constitution: (1) to travel into and sojourn in each state, (2) to purchase and hold real estate, (3) to exercise the rights of free speech and assembly, (4) to bear arms, (5) to be exempt from racially-discriminatory criminal laws, (6) to intermarry with white citizens.