An interesting originalist analysis from the D.C. Circuit (Judge Douglas Ginsburg writing) in Pollack v. Duff (from last summer, but I missed it when it came out). In a job announcement, the Administrative Office of the U.S. Courts said that it would consider applications from any federal employee and (bizarrely) anyone else only if they lived in the D.C. metro area. Pollack, then living in Kentucky, objected under the Article IV, Sec. 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states."
After extended analysis, the court found that the clause does not apply to the federal government. Pollack apparently relied principally on a statement by James Iredell, which the court found ambiguous. But the court went on to say:
To the extent Iredell’s pamphlet reflects this view [that the clause bound the federal government], it is relevant evidence of how a reasonable person might have understood the clause when the Constitution was ratified. Or, as the defendants put it, Pollack’s pamphlet is “a guide to understanding the original meaning” of the Constitution, but not a source of “rights not explicitly found in the text.” Appellees’ Br. at 27; see Noel Canning v. NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 (2014) (“When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution”).
The defendants also caution that Iredell’s statement is subject to the caveat that the views expressed by either a proponent or an opponent of ratification are not necessarily indicative of how a reasonable person would have understood the text of the document. As the defendants point out, some essays authored by both Federalists and Anti-Federalists were designed to bring skeptics around to the author’s position and do not necessarily reflect the common understanding of the meaning of the text of the Constitution. See John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1358–61 (1998). The defendants’ point is well taken. We note, for example, that in 1788, when Iredell authored the pamphlet Pollack quotes, he also published notes from the ratifying convention in North Carolina. The historical record shows “[v]arious Federalist speakers tinkered with” the notes from that convention before Iredell published them, so they would “serve as Federalist campaign literature,” not as an accurate account of the views expressed at the convention. James H. Huston, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 24 (1986).
After finding little else in the drafting or ratifying history to be helpful, the court continued:
We find more definitive guidance in cases decided by the state and federal courts soon after ratification of the Constitution. See Noel Canning, 705 F.3d at 501 (“The interpretation of the Clause in the years immediately following the Constitution’s ratification is the most instructive historical analysis in discerning the original meaning … because it reflects the ‘public understanding’ of the text” (quoting District of Columbia v. Heller, 554 U.S. 570, 605 (2008))).
Several interpretations of the clause are evident in the early cases and commentary. See Lash, 98 Geo. L.J. at 1259–60. As Pollack points out, at least two state courts held it prevented the federal government from discriminating on the basis of state citizenship. See Douglass v. Stephens, 1 Del. Ch. 465, 477 (1821) (holding the Privileges and Immunities Clause was “designed to restrict the powers of Congress as to legislation, so that no privilege or immunity should be granted by it to one citizen of the United States, but such as might be common to all”); Kincaid v. Francis, 3 Tenn. 49, 53 (1812) (White, J. concurring) (“It seems to us most probable that [the Privileges and Immunities Clause] was intended to compel the general government to extend the same privileges and immunities to the citizens of every State, and not to permit that government to grant privileges or immunities to citizens of some of the States and withhold them from those of others”).
The view advanced by these courts was not widely shared, however. The “vast majority of cases decided in this early period of the Republic” concluded the clause limits the extent to which a state may discriminate against nonresidents but it does not apply to the federal government. Lash, 98 Geo. L.J. at 1262 n.108; see, e.g, Livingston v. Van Ingen, 9 Johns. 507, 577 (N.Y. 1812) (Chancellor Kent, concurring) (“The provision that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states … means only that citizens of other states shall have equal rights with our own citizens …. This is a very clear proposition, and the provision itself was taken from the articles of the confederation.”); Campbell v. Morris, 3 H. & McH. 535, 548 (Md. 1797) (“When the new constitution was formed … there was reason to fear that particular states might not allow the citizens of other states the same privileges enjoyed by their own citizens; and had a provision securing them been omitted in the constitution, they might have been deprived of them”). The interpretation of the Privileges and Immunities Clause that “came to dominate case law and scholarly commentary from the Founding until Reconstruction” — and that is still evident in the Supreme Court’s more recent jurisprudence — provides the clause merely “require[s] states to grant visiting citizens some of the same privileges and immunities that the state conferred upon its own citizens.” Lash, 98 Geo. L.J. at 1260.
Congratulations to Kurt Lash for some influential originalist scholarship.
The court's last point is textual/structural:
Finally, the location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.” Baldwin, 436 U.S. at 379. Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states. ... If the Privileges and Immunities Clause applied to the federal government, then we might expect to find it in Article I, § 9, alongside other limitations upon the powers of the Congress to discriminate against residents of certain states, such as the Export Taxation Clause and the Port Preference Clause; in any case, it would not be in Article IV.
And in conclusion:
Although the historical record is not pellucid, we think the weight of the evidence indicates the Privileges and Immunities Clause was not originally understood as a limitation upon the authority of the federal government. We agree with the defendants, therefore, that the geographical limitation in the AO’s hiring process is not subject to scrutiny under that clause.
So maybe originalism is our law, in this case anyway.
(Thanks the Mila Sohoni for the pointer).