Green and Bingham
Andrew Hyman

Professor Chris Green kindly posted a response to my blog post about Congress's alleged power to define what "privileges" and "immunities" are covered by the Fourteenth Amendment.  My main point was that Congress generally has no definitional power under the Privileges or Immunities Clause with regard to either enumerated or unenumerated rights; Congress simply has no role with regard to either.  Perhaps Professor Green believes Congress has such definitional power with respect to unenumerated rights, but if so then I respectfully disagree.

Professor Green is entirely correct that it's very important to ask whether the Privileges or Immunities Clause involves unenumerated rights, and I am happy to engage on that point, and to argue that it does not.  It seems to me that none of the five examples that Professor Green has given include the key phrase “privileges [and/or] immunities of citizens of the United States.”  The closest of those five examples (by far) is Green's lead example, where Congressman John Bingham said something very similar. That remark by Bingham in 1867 (which incidentally was not widely published like President Andrew Johnson's veto message was in 1866) referred not merely to rights related to prevalent rates of taxation, but rather referred explicitly to the Comity Clause right of equal treatment which is emphatically an enumerated rather than unenumerated right.

No one disputes that various statesmen in 1866 believed United States citizenship implied various unenumerated natural rights, but whether they believed any of those unenumerated rights were judicially enforceable against Congress is quite another question, as is whether they believed those unenumerated rights were “privileges [and/or] immunities of citizens of the United States.”  The phrase "privileges and immunities" typically referred in the Comity Clause not to all natural rights possessed by native citizens but only those rights that native citizens could actually vindicate against their own state; that is one important reason why political leaders of that era could sometimes distinguish “privileges [and/or] immunities of citizens of the United States” from the broader set of rights belonging to U.S. citizens.

UPDATE (3/23): Just to be crystal clear, I am absolutely not drawing any sharp distinction between rights on the one hand versus "privileges and immunities" on the other hand.  All I am saying is that the latter are a subset of the former.  This has been established Comity Clause doctrine for well over a century.


An Additional Response to Katyal & Clement
Michael Ramsey

Mario Apuzzo also has a response to Katyal & Clement on natural born citizens.  (Thanks to Charles Kerchner for the pointer).

I take his point to be principally that English common law, not English statutory law, should inform the constitutional meaning (similar to this post).  Although it's a minor point, this additional comment is worth noting:

Katyal and Clement argue that John Jay [who apparently first suggested the "natural born" language] had children born out of the United States while he was on diplomatic assignment and that he would not have disqualified his own children from being natural born citizens.  This is a really baseless point since Jay's children would have been born out of the United States to parents who were serving the national defense of the United States and therefore reputed born in the United States.

I agree (although I think that should read "serving in a diplomatic capacity" not "serving the national defense").  The Jay argument is unhelpful and it's unfortunate that Katyal and Clement repeat it (which they do, text at fn. 14).  There's no doubt that under English common law the children of English diplomats born abroad were natural born subjects despite the general common law rule that "natural born" meant only birth within the realm (Blackstone, vol. 1, p. 361, referring to the "children of the king's embassadors born abroad"). So whatever Jay may of thought about the eligibility children of diplomats does not help us decide between looking to English common law and looking to all of English law including statutes.

Perhaps Will Baude is Too Timid
Andrew Hyman

In a recent op-ed for the New York Times, Will Baude (law professor and until recently Volokh Conspiracy blogger) suggested a contingency plan for President Obama in case the judiciary finds Obamacare -- or parts of it -- to be unlawful.  Taking a page from Lincoln's first inaugural address, Baude speculated that Obama could enforce such judicial decisions only with respect to the particular parties.
Professor Baude's suggestion has run into some skepticism, including from Noah Feldman, Nick Bagley, Josh Blackman, James Taranto, and Andy Grewal (Baude provides hyperlinks here).
But I think Professor Baude may be too timid in his Lincolnesque approach, and perhaps ought to try something a bit more Hamiltonian.  If the president is honestly convinced that SCOTUS is violating the Constitution by willfully defying statutory language that is plainly legitimate, then why should the president even enforce such a SCOTUS decision as to the particular parties in the case? In Federalist 78, Hamilton wrote of SCOTUS that, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."  Accordingly, Obama could instruct the U.S. Marshals Service to sit on its hands instead of effectuating the judgment for one of the parties.  That's called checks and balances, though not of the usual sort.  Of course, there would be risks for Obama in such an unusual approach, including possible impeachment, not to mention the precedent for Bush 45, or for President Fiorina.  But the same is true of the Lincolnesque approach that Baude has suggested.
Instead of providing a link directly to Federalist 78 for the Hamilton quote, here is a link to (apparently) the only opinion by a Supreme Court Justice that has ever had the nerve to repeat it. Hint: that judge is currently the subject of a play at Arena Stage in Washington D.C.
UPDATE (3/23): Professor Baude has emailed to say that he does not think Hamilton was right, citing a law review article that Baude wrote several years ago.
MIKE RAMSEY ADDS:  Here are a couple of posts supporting Professor Baude's position, from Stephen Carter (at Bloomberg View) and Kevin Walsh (Mirror of Justice).

Helen Knowles:The Least Dangerous Branch and Popular Constitutionalism
Michael Ramsey

Helen Knowles (Skidmore College, Government) has posted Remember, it is the Supreme Court that is Expounding: The Least Dangerous Branch and Popular Constitutionalism on SSRN. Here is the abstract:

This article undertakes critical analysis of the similarities between “popular constitutionalism” and The Least Dangerous Branch. It does so by focusing not on the book’s treatment of the counter-majoritarian problem but, rather, on the passive virtues discussion. In so doing it suggests that Alexander Bickel – at least, the Alexander Bickel who wrote The Least Dangerous Branch – was far more accepting of the US Supreme Court’s power of judicial review than the scholarly “obsession” (as it is sometimes referred to) with the counter-majoritarian problem might lead us to believe.


John Coates: Corporate Speech and the First Amendment
Michael Ramsey

John C. Coates IV (Harvard Law School) has posted Corporate Speech and the First Amendment: History, Data, and Implications on SSRN.  Here is the abstract:      

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

(Thanks to Seth Barrett Tillman for the pointer).


Hyman, Johnson, Bingham, Wilson, Trumbull, Colfax, and Stevens
Chris Green

Andrew Hyman notes that Andrew Johnson, vetoing the Civil Rights Act of 1866 on March 27, 1866, claimed that the freedmen were unworthy of "all the privileges and immunities of citizens of the United States." After interpreting Johnson as referring only to constitutionally-enumerated rights with that phrase, Hyman notes, "as far as I am aware, no supporter of the Fourteenth Amendment during that era disagreed with or contradicted Johnson's understanding of the term 'privileges and immunities of citizens of the United States.' "

I am less confident than Hyman exactly what Johnson meant in referring to "the rights of citizens as contemplated by the Constitution of the United States." By itself, the context does not require that all the rights of citizens of the United States are in the Constitution, merely that Johnson thought that the freedmen were unworthy of those rights that were.  

Whatever Johnson meant, however, it is perfectly plain that lots of very important framers of the Fourteenth Amendment referred to constitutionally-unenumerated rights as rights of citizens of the United States.

My essay on the enumerated-rights-only view of the Privileges or Immunities Clause, serialized on this blog and now forthcoming in the William and Mary Bill of Rights Journal, canvasses several chunks of such evidence. Consider just a few examples from the most important Republicans: the author of the Privileges or Immunities Clause (John Bingham), the chairmen of the House and Senate Judiciary Committees (James Wilson and Lyman Trumbull), the Speaker of the House (Schuyler Colfax), and the representative who presented the Fourteenth Amendment to the House  on behalf of the Joint Committee on Reconstruction (Thaddeus Stevens).

1. Bingham. In the context of his ellipsis theory of Article IV, John Bingham used the phrase "privileges and immunities of citizens of the United States" in January 1867 to refer to rights related to prevalent rates of taxation. See here at 16. 

2. Wilson.  On March 9, 1866, he described the Civil Rights Act, which contained constitutionally-unenumerated rights like the right to contract and the right to own real estate: "[T]his bill refers to those rights which belong to men as citizens of the United States and none other..." See here at 29.

3. Trumbull. Responding to Johnson on April 4, 1866, he said (see here at page 30), 

[W]hat rights do citizens of the United States have? To be a citizen of the United States carries with it some rights; and what are they? They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights in this bill, and they belong to them in all the States of the Union. The right of American citizenship means something.

4. Colfax. He explained on August 7, 1866 (see here at 28),

We passed a bill on the ninth of April last year, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease, and sell property, and be subject to like punishments. That is the last law upon the subject.

5. Stevens. On September 4, 1866, he specifically concurred with Colfax's explanation of the Civil Rights Act.  See here at 29.

Update (3/23): Hyman replies, stressing the supposed difference between "privileges and immunities" and "rights."  But Johnson himself--in the very evidence which Hyman relies upon to establish the supposed limitation to constitutionally-enumerated rights!--restates the issue in terms of "rights": "the rights of citizens as contemplated by the Constitution of the United States." Many, many Republicans and others made similar moves, describing the Privileges or Immunities Clause in terms of "rights and immunities," rights and privileges," or simply "rights." The bulk of the evidence in my new book would be incomprehensible were we to draw such a sharp distinction. Colfax and Stevens, of course, spoke in the context of the Privileges or Immunities Clause as proposed, which they very clearly associated with the unenumerated rights of the Civil Rights Act. Pages 14 to 20 of Kurt Lash's book, following pages 64-65 of Michael Kent Curtis's much older book, show this equation of "privileges," "immunities," and "rights" quite clearly.

The fact that the Comity Clause was itself an enumerated right cuts no ice in favor of an enumerated-rights-only reading of the "privileges and immunities of citizens of the United States" in Bingham's 1867 comments. Bingham said that the Comity Clause required comity regarding the privileges and immunities of citizens of the United States, among which were the rates of taxation prevalent in each state. He wasn't talking about comity regarding comity.  Bingham clearly didn't think the clause covered only comity regarding enumerated rights--which the notion that "privileges and immunities of citizens of the United States" means "privileges and immunities enumerated in the Constitution" requires. 

Congress’s Power (or Powerlessness) to Define the Privileges and Immunities of Citizenship
Andrew Hyman

People interested in the Privileges or Immunities Clause may like to read a new Note from the Harvard Law Review, suggesting a role for Congress in determining what is included in the phrase “privileges or immunities of citizens of the United States.” The HLR Note is titled Congress’s Power to Define the Privileges and Immunities of Citizenship, 128 Harv. L. Rev. 1206 (Feb 10, 2015).   In my view, this Note in the HLR is missing some important ingredients.

It is amazing how many journal articles that focus exclusively upon this Clause of the Fourteenth Amendment somehow overlook the origin of the key quoted phrase.  Less than a month before the phrase first appeared in a draft of the Fourteenth Amendment, President Andrew Johnson doubted, in the official message accompanying his veto of the Civil Rights Act, whether newly-freed slaves possessed the “requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States.”   You can search through Hein Online, and find only seven scholarly articles quoting that statement by President Johnson --- the HLR Note not among them.  

The veto message stated that the question would not arise (about requisite qualifications) if one assumes that the Constitution always deemed native-born persons to be citizens of the United States; Johnson thus took the position that the privileges or immunities of citizens of the United States exist automatically as a result of U.S. citizenship, not as a result of statutory selection.  That is a big deal, and goes to the core of what the new Note in the HLR is about.  Yet Johnson was not done explaining his terminology.  He added that a foreigner, upon completing the naturalization process, receives a “coveted prize” by attaining “the rights of citizens as contemplated by the Constitution of the United States,” as distinguished from the rights listed in the Civil Rights Act which the foreigner may be given even before citizenship is granted.  This confirms that Johnson, in a formal and widely-reported way, defined the “privileges and immunities of citizens of the United States” as the rights that attach to U.S. citizenship under the Constitution.  It therefore seems clear that Congress generally has no substantive role by virtue of the Privileges or Immunities Clause; as far as I am aware, no supporter of the Fourteenth Amendment during that era disagreed with or contradicted Johnson's understanding of the term "privileges and immunities of citizens of the United States."  

The HLR Note does refer to a Congressman Charles Phelps (who was an opponent of the Fourteenth Amendment); Phelps argued that Congress would have power to define the privileges or immunities of citizens of the United States "in like manner" as it has power to define who are citizens.  However, the HLR Note neglects to mention that Phelps' statement (on May 5, 1866) was followed by the addition of the Citizenship Clause to the Fourteenth Amendment (on May 30, 1866), thus removing power from Congress.  The HLR Note also mentions a speech by Congressman Andrew Rogers (another opponent of the Fourteenth Amendment), but Rogers did not specify which branch of the federal government would determine what the privileges and immunities of U.S. citizens are, though it is true that Rogers took a very different position than Johnson did.  Anyway, the HLR Note is interesting, allbeit incomplete and mistaken, in my opinion.

Ilya Somin Reviews Frank Buckley's "The Once and Future King"
Michael Ramsey

In The Independent Review, Ilya Somin reviews (courteously but skeptically) The Once and Future King: The Rise of Crown Government in America by Frank Buckley.  From the introduction:

Frank Buckley is a Canadian-born academic who has long been a leading legal scholar in the United States. Despite (or perhaps because of) living in America for many years, he has not lost his affection for queen and parliament. In The Once and Future King, he offers a penetrating analysis of the dangerous growth of executive power in three predominantly English-speaking democracies: Great Britain, Canada, and the United States. Executives in all three nations have increased their authority at the expense of the legislature in recent decades. But Buckley contends that Britain and Canada’s parliamentary regimes are better able to limit the dangers of executive aggrandizement than America’s separation-of-powers system.

Buckley’s book has many strengths and undoubtedly qualifies as a major contribution to the debate over comparative constitutional design. On some key issues, however, he overrates the benefits of parliamentary systems and undervalues those of presidentialism.

(Update: Link missing before, now fixed.  Apologies).


A Comment on the Presidential Eligibility Clause Debate
Seth Barrett Tillman

Statutes limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility. 
67 C.J.S. Officers § 23 (2012) (footnotes omitted) (emphasis added); cf. 62 C.J.S. § 273 (2011) (“[A]n appointed or elected person should not be prevented from taking office unless clearly ineligible.” (emphasis added)); see also CASES OF CONTROVERTED ELECTIONS, DETERMINED IN COMMITTEES OF THE HOUSE OF COMMONS, IN THE SECOND PARLIAMENT OF THE REIGN OF QUEEN VICTORIA 587 (Thomas Falconer & Edward H. Fitzherbert eds., London, Saunders & Benning 1839) (reproducing committee debate from disputed Galway election of 1838, where Mr. Austin (counsel for the sitting member who prevailed) stated: “In all cases respecting eligibility, eligibility is to be aided, and ineligibility ought to be strictly proved. Severe penalties are imposed by the acts of parliament creating disqualification, and they are not favoured.”); cf. Jordan Steiker, Sanford Levinson & Jack M. Balkin, Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 Tex. L. Rev. 237, 242ff (1995) (noting several textual difficulties in regard to President Washington's eligibility, including his purportedly being a resident of the United States for 14 years in 1789, when he took office).

A Response to Clement & Katyal on Natural Born Citizens
Michael Ramsey

Jim Henderson (Just Sayin) responds to Neal Katyal and Paul Clement on Ted Cruz and presidential eligibility: Shooting A Blank: Clement and Katyal Fire a Dud in the Qualification Wars.  (Thanks to William Rawle for the pointer).  It's a strong counterpoint, but I am not persuaded.  From the core of the argument:

[Katyal and Clement's] conclusion rests on a fallacious conflation of English statute law and English common law. The significance of that conflation cannot be overstated. As noted, under English common law, only persons born within the realm were entitled to status as “Natural Born Subjects.” Hard choices faced those living with such a reality. Called to service, engaged in mercantile trade, traveling for study, many reasons provoked Natural Born Subject to remove to other lands. Living abroad – even in service to country and Crown – would risk that offspring would suffer disinheritance of title and property. So Parliament necessarily, wisely, granted to specific categories of persons born abroad status as Natural Born Subjects.
In fact, Clement and Katyal gloss over this dichotomy. English statutory law, enacted by Parliament, extended “Natural Born Subject” status to additional classes of persons not within the English common law’s sweep of the term. It is from that premise – Parliament’s expansion of the scope of “Natural Born Subject” – that Clement and Katyal illogically leap. The leap is illogical because they refer to the vaunted role of English common law in understanding our early legal history and as a source work for understanding the Constitution but then invoke English statute law to give meaning to our Constitution’s “Natural Born Citizen” provision. 
The post correctly describes the relationship between English common law and English statutory law on the subject, but in my view draws the wrong conclusion from it.   I agree it is essential to Katyal & Clement's argument to look at both common law and statutory law, but I don't think it's a "leap," much less an "illogical" one.  We should look at both for the same reason: they are part of the Constitution's legal background.   The meaning of words in the Constitution is informed by the way those words were used in the whole corpus of English law, both common law and statutory law.  There is no sound basis for excluding statutory usage (where the founding generation in America was familiar with it, as was clearly the case here) as evidence of constitutional meaning.  What "natural born" meant in eighteenth-century English law was a combination of common law and statutory law.
The post continues: 
... [T]he decision of Congress [in the 1790 Naturalization Act, relied on by Katyal & Clement] to extend Natural Born Citizen status to persons who were not, in fact, by operation of the common law, Natural Born Citizens was not a proper exercise of the Naturalization Clause power. The essence of naturalization is to make one a citizen that is not a citizen. So the power of Congress is limited to that task, making, as it were, citizens out of whole cloth. But therein lays the rub for Clement and Katyal, while Parliament had power to grant Natural Born Subject status to persons denied that status by operation of common law, our Legislative Branch is one of limited and defined powers. For Clement and Katyal to succeed, they must identify a legitimate ground upon which Congress could expand the meaning of the Natural Born Citizen provision.
Again, I think this formulation asks exactly the right question but then gives the wrong answer.  I agree that a key to the eligibility clause debate is the power of Congress.  But I would define Congress' naturalization power by reference to Parliament's naturalization power.  Parliament's power is the obvious antecedent of Congress' power in this situation.  There is no "essence" of naturalization apart from the meaning eighteenth-century legal usage placed on that term.
There is no doubt that (a) Parliament had power to declare persons born abroad to English parents to be "natural born"; (b) this power was described as part of Parliament's power of "naturalization" (the relevant statutes were called acts to "naturalize" persons born abroad); and (c) the founding generation in America knew this.  Accordingly, absent strong contrary evidence, I think it follows that Congress' naturalization power included what Parliament's naturalization power included: the power to declare a person born abroad to be "natural born" based on the allegiance of his parents.