The Originalism Blog

Adam Hirsch: Disclaimers and Federalism Michael Ramsey

Adam Hirsch (University of San Diego) has posted Disclaimers and Federalism (Vanderbilt Law Review, Vol. 67, No. 6, 2014) on SSRN. Here is the abstract: 

The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary’s right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise with regard to disclaimers in several contexts: (1) when a disclaimer would function to defeat a federal tax lien; (2) when a disclaimer could affect a beneficiary’s eligibility for Medicaid assistance; (3) when a beneficiary disclaims ERISA pension benefits; and (4) when a beneficiary executes a disclaimer prior to declaring bankruptcy or in the midst of a federal bankruptcy proceeding. The Article begins by developing a theoretical model of the potential costs and benefits of federal preemption, jumping off from prior scholarly discussions of this problem. The Article then addresses, from the perspective of the model, each of the four situations where a disclaimer raises federal concerns. The Article concludes that different policy considerations arise in each situation, depending upon how a disclaimer relates to federal affairs — viz., whether a disclaimer would threaten the financial interests of the federal government, whether those financial interests can be safely delegated to states, whether federal law regulates the kind of property disclaimed, and whether the disclaimer occurs in anticipation of, or within, a specialized federal proceedings. Hence, the four situations addressed in this Article call for no synchronized response from the perspective of federalism but instead demand distinct treatment.

Dennis Schmelzer: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay Michael Ramsey

Dennis Schmelzer (Vinson & Elkins LLP) has posted Historically Unappealing: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay on SSRN. Here is the abstract: 

This article revisits the historical questions raised by the U.S. Supreme Court in Boumediene v. Bush about the reach of the writ of habeas corpus at common law to territories like Guantanamo Bay. Despite extensive oral arguments and briefing about the significance of prior case law, both the Court’s majority and dissenting opinions concluded that there was no precedent definitively answering their historical questions about the reach of the Great Writ. Justice Kennedy suggested that there simply may not have been good historical parallels for the detentions at Guantanamo Bay given the “uniqueness” of the territory and the particular challenges of terrorism in the present age. Justice Scalia suggested that the absence of case law demonstrated on its own that the writ was simply unavailable at common law to similar foreign prisoners held outside the sovereign control of the United States or the English Crown.

This Article provides a different explanation. Its research reveals the following discoveries: (1) the legal status of the U.S. Naval Station at Guantanamo is not that unique compared with other territories acquired in the early Nineteenth Century; (2) the writ of habeas corpus and other Constitutional rights were routinely recognized in all of those territories by statute or Executive Order; and (3) the availability of these rights is masked in Article III case law because constitutional disputes were primarily handled by territorial courts established outside the purview of Article III of the U.S. Constitution. This Article further offers the theory that the political branches “voluntarily” recognized most rights (including the privilege of habeas corpus) and granted territorial courts jurisdiction to hear constitutional challenges in the first instance in an effort to intentionally avoid or delay judicial review of most constitutional questions arising in those territories by Article III courts. These developments were spurred by early Supreme Court decisions indicating that the Court might intervene if certain fundamental Constitutional rights were denied in those territories. From that point on, the political branches actively manipulated doctrines of judicial avoidance to prevent potentially adverse constitutional precedent. The absence of most of this history in reported case law from Article III courts demonstrates a significant blind spot of reported precedent as a historical guide.

Richard Re: Narrowing Precedent in the Supreme CourtMichael Ramsey

Richard M. Re (UCLA School of Law [and Re's Judicata]) has posted Narrowing Precedent in the Supreme Court (114 Colum. L. Rev. 1861 (2014)) on SSRN.  Here is the abstract: 

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice — often called “stealth overruling” — is widely condemned as deceptive, as well as contrary to stare decisis. On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance. As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible — including frequently overlooked decisions by the Court’s more liberal members. Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice — and a good thing, too.

Insightful, and also a potentially important ingredient in reconciling originalism and precedent.

(Via Legal Theory Blog, where it is the "Download of the Week").

Lash on ERAERNBER: Not Less than Equal Citizenship for Citizens Who Stay HomeChris Green

UPDATE: The arguments in this post have been incorporated into an essay forthcoming in 24 William and Mary Bill of Rights Journal (2015). Please refer to the essay version, available here.

-----

Thanks to Kurt Lash, a friend quite able to disagree without being disagreeable, for replying to my review (parts 1, 2, 3, 4, 5, 6). I hope that future discussions will have a chance to touch on other aspects of our disagreement--whether the Bill of Rights (and other enumerated rights!) were rebooted in 1868, the 9A/14A relationship, what Bingham meant by "chiefly defined," the possibly-adverbial "in" in IV/2/1, Bingham's 1867 ellipsis reiteration, equal-citizenship readings of the Louisiana Cession language, the relation of the CRA1866 and CRA1875 to 14A P/I, 1866 public discussion of voting rights and 14A indeterminacy, the relative reliability of Garnes and Hall, the meaning of the Equal Protection Clause, and so on. If any book publishers are interested in a collection of essays on the Privileges or Immunities Clause, by the way, with cross-commentary among the authors, I suspect there is material out there for such a collection. By all means, let's put on some scuba gear and explore more of the iceberg.

I likely have a far greater appetite than Lash, or most readers, for spilling out all of this detail on the blog. In lieu of a comments section, I'll put my five attempts at clarification after the jump.

Lash, Green, and the Doubtful Case RuleAndrew Hyman

Professors Kurt Lash and Chris Green have recently been debating the meaning of the Privileges or Immunities Clause here at this blog.  I tend to agree with Lash, but am under no illusions that the debate will be resolved any time soon.

Lash supports an enumerated-rights interpretation whereas Green supports a fundamental-rights interpretation.  It seems fair to say that they agree the Clause at least covers the overlap between those two interpretations.  Since that is a point of agreement and very little doubt, the federal courts would be very well justified in endorsing that narrow common ground that is shared by those two major interpretations.

Indeed, when the Fourteenth Amendment was adopted, the Supreme Court had long since established the Doubtful Case Rule, holding that the Court would not strike down statutes in cases where the constitutionality was uncertain.  Framers like John Bingham emphatically endorsed and relied upon the Doubtful Case Rule.  In 1868, shortly before the Fourteenth Amendment was ratified, Bingham said very publicly:

It has been settled law in this country from a very early period that the constitutionality of a law should not be questioned, much less be adjudged invalid by a Court clothed by the Constitution with jurisdiction in the premises, unless upon a case so clear as to scarcely admit of a doubt....

There is virtually no doubt that either a Lash-type interpretation or a Green-type of interpretation is correct, so the common ground is judicially enforceable.

There is a catch, however. There is a third type of interpretation of the Privileges or Immunities Clause.  Aside from those defended by Lash and Green, there is the equality-only type of interpretation, but I don't think it is sufficiently plausible to affect the doubtful case analysis summarized above.  There are at least four main textual reasons why.

First, it is admittedly true that many rights listed in the original Constitution and Bill of Rights are rights of persons as opposed to rights of citizens only.  But that is no obstacle to incorporating those rights via the Privileges or Immunities Clause.  After all, no one (to my knowledge) argues that the Comity Clause allows a state to deprive citizens from other states of fundamental rights of persons that the state guarantees for all of its own inhabitants.  So why would the Privileges or Immunities Clause allow states to violate privileges or immunities just because they are sometimes rights of persons rather than rights of citizens?  Of course states could not be allowed to do that, and nothing of the sort was ever intended.

A second textual reason to dismiss the equality-only interpretations is that such interpretations could render the Equal Protection Clause basically superfluous.  It is not a plausible answer to say that the Equal Protection Clause is only directed to protecting non-citizens; obviously, the EPC refers to all people generally instead of non-citizens specifically.  Even the Fourteenth Amendment's Due Process Clause unquestionably helps all people instead of just non-citizens (i.e. if the Privileges or Immunities Clause incorporates Fifth Amendment due process then the Fourteenth Amendment's Due Process Clause would still help citizens by barring states from harming citizens outside the legal process).

A third textual reason to dismiss the equality-only interpretations is that the Privileges or Immunities Clause was obviously phrased differently from the Comity Clause, despite their similarities.  That divergence is a dead giveaway that the later clause was not meant to merely refer to the earlier one.  This point becomes even more obvious when one considers that the first draft of the Fourteenth Amendment (considered by Congress) very closely tracked the Comity Clause language, and that draft (which was well-publicized in the newspapers in every state) was later ditched in favor of language that did not as closely track the Comity Clause language.

A fourth textual reason to dismiss the equality-only interpretations is that the enumerated-rights interpretation probably incorporates the Equal Protection Clause, since the latter is an enumerated right.  This fact would explain or account for statements made in 1866-1868 that the Privileges or Immunities Clause includes an equality guarantee of some sort.

The three categories of interpretations of the Privileges or Immunities Clause (i.e. enumerated-rights, fundamental-rights, and equality-only) each comes in many different flavors, but I think the categorization is useful.  Even in the absence of exact certainty about what the Clause means, we can still easily see that the Clause has a clear core, despite ongoing scholarly debate at the periphery--which may well go on forever.

And with that, I wish everyone a very Happy Thanksgiving.

The Meaning of the Equal Protection ClauseMike Rappaport

Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause.  While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.  Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.

When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights.  For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here.  Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.

Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally.  Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched.  (One important question  that this interpretation raises, which I do not discuss here, is how equality is protected under the 14^th Amendment. )

Hyman notes the modern interpretation requiring that all laws be equal and wonders where this interpretation came from.  He suggests it came from this famous speech in the Senate by Jacob Howard about the meaning of the 14^th Amendment.  In the speech, Howard first notes that the Privileges or Immunities Clause protects various rights.  He then moves on to the Due Process and Equal Protection Clauses.  He writes that the last two clauses of section one of the 14^th Amendment

disable a State from depriving not merely a citizen of the United States, but any person whoever he may be of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.  This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.  It prohibits the hanging of a black man for a crime for which the white man is not to be hanged.  It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the number of another caste, both castes being alike citizen of the United States.  (Italics added.)

Hyman offers an explanation for Howard’s language about abolishing all class legislation, suggesting that Howard did not actually say this on the Senate floor (even though it was in the notes of his speech).

Perhaps, but I have another explanation. I admit that Howard’s language is not entirely clear, but I think there is a reasonable argument for concluding that Howard is not saying the Equal Protection Clause requires that all laws be equal.  Instead, he is interpreting the Equal Protection Clause to be about remedies.

In the previous paragraphs, Howard has just said that blacks are entitled to the privileges or immunities of citizenship, and is here saying that the Equal Protection Clause requires these privileges to be enforced.  Thus, the first italicized sentence might be understood as focusing on the punishment – the remedy – rather than the right.  Similarly, the second italicized sentence speaks of a shield, suggesting a protection or shield for the rights of blacks.

This  interpretation is reinforced by the last sentence of the quoted language, which shifts to talking about citizens.  The Equal Protection Clause protects persons, whereas the Privileges or Immunities Clause protects citizens.  This last sentence suggests that Howard has been interweaving both the Privileges or Immunities Clause and the Equal Protection Clause in his discussion (with the former conferring rights on black and the latter requiring those rights to be protected).

Further Thoughts on Presentment and the Compacts Clause (updated by Seth Barrett Tillman)Michael Ramsey

As a follow-up to this post, Josh Blackman has posted updates with comments, including a long one from Seth Barrett Tillman (scroll to the bottom).

The question is whether, when Congress approves an interstate compact, the approval must be presented to the President for signature or veto.  I agree with Professor Tillman (or at least, his result, and a good bit of his reasoning):  yes.

Briefly, the compact clause (Art. I, Sec. 10):  

No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State ...

And the "second" presentment clause (Art. I, Sec. 7, last paragraph): 

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States …

Approval of an interstate compact requires a "vote" reflecting the "concurrence of the Senate and the House of Repressentatives."  There's no other way to establish the consent of Congress, because Congress can only act through a vote of its two constituent bodies.  Moreover, the textual exception for adjournment strongly implies that there are no other exceptions.  So, presentment is required. That's not so hard, is it?

The main counterargument is that by this analysis Congress' recommendation of a constitutional amendment requires presentment, as it entails a "vote"  reflecting the "concurrence of the Senate and the House of Repressentatives."   To which I respond (a) well, then, that's what it requires; and (b) nonetheless, possibly something in Article V (providing the amendment mechanism) overrides Article I, Section 7.  But fairly obviously, nothing in the compacts clause overrides Article I, Section 7.

Notably, the framers did not think that anything in Article I, Section 5 (providing for adjournment) overrode the presentment clause -- else they would not have needed to add the express exception for adjournment in the presentment clause.  And Article I, Section 5 uses the same phrase as the compact clause: "consent".

It's worth noting, too, how carefully crafted these provisions are.  Obviously presentment isn't required for impeachment and conviction.  But why not?  Because neither impeachment nor conviction -- each considered independently -- are a vote to which the concurrence of both the Senate and the House are required.  So, no presentment clause exception is needed for impeachment and conviction, and there isn't one.  Ordinarily adjournment would similarly be considered a vote of a single house -- e.g., whether the Senate should adjourn would be a question for the Senate.  But per Article I, Section 5, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn..."  Thus the adjournment of the Senate is (somewhat counterintuitively) a vote requiring the "concurrence" (or "Consent") of both Houses; as a result, the framers saw that the presentment clause would require presentment of motions to adjourn unless they added a specific exception, which they did.

The framers did not always think so carefully about their language, but when they did, we should be especially attentive to the exceptions they included and the ones they did not.  There is no exception to the presentment clause for the "consent" needed to approve interstate compacts, even though there is an exception for the "consent" needed to adjourn.  That makes it an easy case for me.

UPDATE:  

SETH BARRETT TILLMAN ADDS --

My view is that 1/7/2 (the Presentment Clause) and 1/7/3 (the Second Presentment Clause) are  different procedures. When a substantive constitutional provision requires Congress to act "by law", then Congress must exclusively use 1/7/2. But absent 1/7/2-related "by law" language, Congress can use either 1/7/2 or 1/7/3 procedures -- the latter allows Congress to opt of bicameralism, but not presentment. To put it another way, the absence of a "by law" limitation in a substantive grant of congressional power is not an allowance for Congress to opt out of presentment (eg, by concurrent resolution per Treanor); rather, the absence of express "by law" language permits Congress to opt out of bicameralism (where authorized by a prior statute). Under my view  INS v Chadha  was 1/2 correct—a single House legislative veto cannot bypass the President or escape presentment. But  INS v Chadha  is also 1/2 incorrect—Congress can opt of bicameralism if authorized to do so by a prior statute. Once Congress tries to make use of that specific statutory authorization, using the vehicle of a single house order, resolution, or vote, then that single house order, resolution, or vote must be separately presented to the President—just like a bill is presented to the President. 

 

To put it another way ... the traditional reading of Article I, Section 7, Clause 3 is: 

 

Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [which are properly stylized when enacted per U.S. Const. art. I, § 7, cl. 2].  

 

But I believe, the correct reading, as a matter of original public meaning, is:  

 

Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation (or, more accurately, as delegated legislation) per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [per U.S. Const. art. I, § 7, cl. 2, which is a different procedure]. 

 

One final point ... there is almost no early commentary on 1/7/3. Likewise, there is little modern commentary. So much so, that it has disappeared from the radar of nearly all modern commentators. Here are two examples illustrating how this clause has “disappeared”. Professor Akhil Amar’s  America’s Constitution  (2005) has commentary on every provision of the Constitution of 1787—except the Counterfeiting Clause and 1/7/3. Likewise, Professor Rosenkranz wrote:

 

Congress acts by making laws. But the product of the action of Congress—the statute, the public law—is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. The Constitution itself avoids this grammatical ambiguity,  always  carefully referring to federal legislative output as “Law” or “legislation” (which Congress “makes” or “passes”).  

 

Rosenkranz, Subjects of the Constitution  at 1215-16 (emphasis added).

 

Simply put, you cannot square Rosenkranz’s position with 1/7/3. 1/7/3 speaks to orders, resolutions, and votes, not to “acts”, “laws”, “legislation” or, even, “statutes”.

  

The intellectual status quo in regard to 1/7/3 should be unsettling—at least for originalists—particularly because the clause is directed, in some fashion, towards the legislative process. 

Laurence Claus: Law's Evolution and Human Understanding Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Law's Evolution and Human Understanding (51 San Diego L. Rev. 953 (2014)) on SSRN. Here is the abstract: 

This is the author’s response to book conference commentary on Law’s Evolution and Human Understanding from William Edmundson, John Finnis, Michael Steven Green, Mark Greenberg, Frederick Schauer, and Lawrence Solum.

And here is a link to my colleague Laurence Claus' insightful and challenging book Law's Evolution and Human Understanding (Oxford Univ. Press 2012).  The book description from Amazon:

When should we follow the law? How can we know what law's words mean? What is law? Law's Evolution and Human Understanding presents fresh and surprising answers to these questions. In an account alive with the stories of our shared human history, Laurence Claus explains why we should discard the old idea that legal rules tell us what to do, and instead see law as a system of sayings that evolves among humans to help us better understand each other. 

When driving on public roads, when buying and selling, and in countless other aspects of our work and play, we depend on law to let us know what other people are likely to do and to expect of us. Through fast-paced pages of anecdote and argument, Law's Evolution and Human Understanding explains the revolutionary consequences of seeing law as truly what Oliver Wendell Holmes called it: systematized prediction. The book reveals how this vision of law can transform our thinking about the way we make moral decisions, about the way we read law, and about many other ways that law affects our lives.

Larry Solum's Legal Theory Lexicon: OriginalismMichael Ramsey

At Legal Theory Blog, Larry Solum has a revised revision of this Legal Theory Lexicon entry "Originalism."  The whole entry is of course essential reading but I'll highlight these two paragraphs that focus on what seem to be central points for modern debate:

New originalists who embrace the distinction between construction and interpretation concede that the meaning of some constitutional provisions is vague, and therefore that these provisions require construction that goes beyond translation of the meaning of the text into legal doctrine.  The core commitment of originalism to fixed semantic content does not entail fixed constructions.  For example, it might be the case that the key phrases that define the constitutional seperation of powers, "judicial power," "executive power," and "legislative power," have an original public meaning that was vague.  Given this vagueness, much of the important work required to resolve a dispute about the application of these phrases must be done by constitutional construction.  This means that originalists who share the core commitment to the idea that meaning was fixed by 1789 when the Constitution was ratified may disagree about the proper method of construction of the separation of powers provisions.

Originalists disagree about other important questions as well.  In particular, there is no consensus among originalists about the normative justifications for fidelity to the original meaning.  Some originalists belive that originalism is normatively justified by popular sovereignty theory: we should adhere to the original meaning because it was ratified by "We the People."  Other originalists, like Randy Barnett, argue that the legitimacy of the Constitution is a function of the justice of its content.  And yet other originalists have argued that adherence to original meaning is justified by the rule of law values of predictability, certainty, and stability.  These disagreements about normative foundations may lead to further disagreements about the extent to which "original meaning" should trump other considerations.  For example, should constitutional actors always adhere to original meaning when it conflicts with historical practice or judicial precedent?

More than Equality, Less Than Federalizing the Common Law: A Response to Christopher Green Kurt Lash

[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.]