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11/26/2014

Lash on ERAERNBER: Not Less than Equal Citizenship for Citizens Who Stay Home
Chris 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.

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Thanks to Kurt Lash, a friend quite able to disagree without being disagreeable, for replying to my review (parts 123456). 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.

1. I tried to make crystal clear in the second sentence of my review that Lash includes enumerated rights like IV/2/1 comity rights and I/9/2 habeas rights--that is, not just 1A-8A rights--within the "privileges or immunities of citizens of the United States." (Recall Mike Rappaport's correction of the point last May.)  To my mind, the word "incorporation" is equally well-suited to the idea that the 14A P/I language encompasses these other enumerated constitutional rights as it is to the idea that it incorporates only 1A-8A rights. ITINBI is not BRABRNBBR (the Bill of Rights, All of the Bill of Rights, and Nothing But the Bill of Rights). Whether we call it "incorporation" or "enumeration," the key point is that on Lash's view, as on Justice Black's, the 14A Privileges or Immunities Clause performs only a cross-referencing function. Black may have gotten the scope of the incorporation slightly wrong, as Lash sees things, but the ITINBI term hardly seems "terribly misleading" to me. ERAERNBER--enumerated rights, all enumerated rights, and nothing but enumerated rights--seems a little less pronouncable, for what it's worth, but I'll switch from ITINBI to ERAERNBER for this post as my shorthand for Lash's view.

2. To clarify a point on which Lash was uncertain, I agree with Lash that I/9/2, 1A, 2A, and 8A rights were commonly seen as 14A privileges in 1866, and are such privileges today. We can, however, accommodate these data points in more than one way. Because there was (and is) a widespread consensus among states on such privileges, the denial of such privileges in the former Confederacy produced an inequality among citizens of the United States. (See here at 23 for the "was"--I hope to substantiate the "is" by, inter alia, canvassing state constitutional law today, as, e.g, Eugene Volokh does for 2A analogues here.)  (For the relationship of equal-citizenship and anti-outlier aspects of 14A P/I, see chapter 1 of my book.) The idea was that neither American citizens' freedom of speech, nor their freedom of contract, nor their right to own land, should depend on such citizens' race, or on whether they live in the few states in the Union that fail to recognize such rights in a particular context. This does not nationalize the common law full stop, but only those common-law (or statutory, or constitutional) rights on which there is a strong consensus among states.

3. Reviewing my discussion of the Howard 1869 evidence, I see that I was not clear enough about the precise point of this material--i.e., rebutting Lash's construction of Howard's "to these should be added" Corfield-to-incorporation segue from 1866--or about the 1869 context of Howard's rebuttal of George Boutwell's pre-15A push for black suffrage. Lash reads Howard, both in 1866 and 1869, as referring to IV/2/1 merely to describe one 14A privilege among many: "Howard believed that the Privileges or Immunities Clause protected Article IV Comity Clause rights along with other enumerated rights." This does not fit the context, in which Howard was giving a method for excluding privileges from the ambit of the 14A P/I clause: if underlying privileges were not covered in IV/2/1, they were outside 14A P/I. Under ERAERNBER, to explain the impropriety of Boutwell's proposal, Howard should not have been talking only about IV/2/1, but instead about the entire set of enumerated rights in the Constitution. Moreover, Boutwell's proposal was not of course not limited to making voters of visiting freedmen from other states; when Howard discussed IV/2/1 in the context of 14A, it was not merely as a comity right, but as a model for all 14A P/I privileges. While the 1869 episode does not conclusively nail down exactly what the 14A did with these privileges--though obviously it was more than just comity with respect to such rights--it makes the close tie between IV/2/1 and 14A P/I plain.

Accordingly, Howard's "to these should be added," his 1866 segue from Corfield into his incorporation passage, should be seen as reflecting the sentiment in Hall in 1871: that the rights enumerated in the Constitution were  among "those which may be denominated fundamental; which belong of right to the citizens of all free states, and which have at all times been enjoyed by the citizens of the several states which compose this Union from the time of their becoming free, independent and sovereign." I agree wholeheartedly with Lash that we must adopt a reading that "makes sense of all of Howard’s speeches and statements." Such harmonization is easy, however, if we read Howard as taking the same position as Judge Woods did in Hall.

One interesting fact, by the way, of which Andrew Hyman's work made me aware just on Monday, is that Howard's discussion of rights in the Bill of Rights was apparently a later insertion into the draft. It appears on page "2a" of Howard's handwritten notes, which use the slightly milder "may" for the Congressional Globe's "should":

Howard segue 3

Page 2 is the citation to Corfield, which Howard then apparently read out of a treatise he abbreviated as "Brightly p. 10."  Page 3, which was originally drafted to immediately follow the discussion of Corfield, has the reference to fuzziness:  Howard indefinite 2

The Corfield reference on page 2 and the fuzziness acknowledgement on page 3 thus sandwich, in Howard's notes, the later-inserted reference to the Bill of Rights and discussion of Barron. If the 1866 discussion of IV/2/1 was merely the discussion of one enumerated right among many, this seems a bit odd to me.

4. A key distinction which Lash's discussion of my review continues to blur is between equal citizenship and interstate comity. Lash's trichotomy of views on the Privileges or Immunities Clause--equality, ERAERNBER, and federalizing the common law (FTCL)--is too simple. John Harrison is not Philip Hamburger. The CRA1866, the CRA1875, and John Harrison's and my views of the equality requirement of the Privileges or Immunities Clause all apply to (a) citizens who stay home--freedmen who, say, were born in the Mississippi Delta as slaves, and had never been outside the state--and to (b) rights not enumerated in the Constitution, such as the rights to contract, to testify, to own land, and to use common carriers. The equal citizenship evidence I adduce--and there is a very large amout of it--is not limited to comity. Indeed, comity rights weren't even close to the focal point of CRA1866 and CRA1875 discussions. 

My problem with Lash's treatment of equality evidence is not that that Lash ignores "the rights of equal protection as declared in the Comity Clause and in cases like Corfield." Lash is quite clear that IV/2/1 comity rights themselves are encompassed within the 14A too (thus reinforcing Prigg-analogous congressional power analogous to enforce the comity clause). My beef is with Lash's neglect (or lack of adequate explanation) of equal-citizenship contract, land-ownership, testimony, and common-carrier rights for citizens of the United States who stay in their home states. The Privileges or Immunities Clause cannot on any reasonable interpretation of the 1866 evidence cover less than such a floor, but on Lash's view, it does, because equality in such rights for citizens of the United States in their home states is not enumerated elsewhere in the Constitution.

5. The procrustean nature of the comity/ERAERNBER/FTCL trichotomy gets worse when Lash superimposes it--claiming an iceberg of evidence--on the political divisions between conservatives, moderates, and radicals. The division betweeen moderates and radicals is itself quite tricky to draw--the two groups did not, say, caucus separately--and is best seen as a matter of degree. Political scientists like Allan Bogue have put a great deal of quantitative work into it. For what it's worth, Bogue at pp. 104-05 lists Howard as the 11th-most radical Senator in 1866 out of 50, and John Sherman, who saw the common law very clearly as the critical source for privileges of citizens of the United States, as the 32nd. This hardly fits calling Howard a moderate and Sherman a radical. 

The gauziness of "moderate" is matched by the gauziness of "federalism." The Fourteenth Amendment did not, of course, abandon federalism wholesale. But the precise extent of its retail abandonment cannot, I think, be usefully discussed in the coarse-grained way Lash argues. Were moderates so attached to federalism that they could not possibly see equality in constitutionally-unenumerated civil rights as a privilege of all citizens of the United States?  The proof is in the pudding: Republicans passed the CRA1866 and consistently described it in terms of the privileges of citizens of the United States. If Republican "moderates" genuinely held sway in 1866, their passage of the CRA1866 in the context tells us all we really need to know about the willingness of Republican moderates to view the freedom of contract for those remaining home as one of the privileges of citizens of the United States. Further, if moderates were attempting to remove the idea of "civil rights"--i.e., the rights of citizens--from CRA1866, they didn't do a very good job, because they left it in the bill's title: "An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication." Lyman Trumbull also didn't get the memo, describing the bill in terms of the privileges of citizens of the United States, and in terms of civil rights, just before its passage. Neither did Schuyler Colfax, describing the Privileges or Immunities Clause quite explicitly in terms of the constitutionally-unenumerated rights of CRA1866.

It is also worth noting that in certain ways, Lash's view of the Privileges or Immunities Clause would be a far greater intrusion on federalism than would my own. He would insist that federal judges make policy for all 50 states regarding free speech, gun rights, church and state, and so on, based only on their understanding of the text of the Bill of Rights (more precisely, what those 1788- and 1791-enacted texts expressed in 1868). But my view would only allow rights, whether in the Bill of Rights or in the common law, to be enforced if a state itself either gave such a right to similarly-situated fellow citizens or if a consensus of states granted such a right in particular circumstances. The second Justice Harlan, for one, would hardly think that Lash's approach was properly respectful of federalism. That doesn't mean by itself that ERAERNBER could not have been adopted during Reconstruction, but we must be wary of thinking that all sensible folks, or even all "moderate Republicans," whoever that might seem to include, always get identical federalismometer readings. Harlan's Griswold concurrence and Poe dissent make for a greater intrusion on states than Black's Griswold dissent, to be sure, but Harlan's concurrences and dissents in Roth, Mapp, Gideon, Malloy, Pointer, Washington, Duncan, Benton, and Williams arguably make up for it, in comparison to Black's Adamson dissent.

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This reply is already far too long, but I did want to give P/I-obsessed folks a bit of extra material to digest alongside their Thanksgiving turkey tomorrow (and get this done before I stop work for the weekend). I am certainly thankful for the abundance of historical material available for thinking about the Privileges or Immunities Clause, and for Kurt Lash's excellent work in digging into and interpreting that material. His book would make an excellent holiday gift for your library!