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Root, Lash, Bingham, Criteria, and Context
Chris Green

As Mike Ramsey notes just below, the Root-Lash debate continues. As explained here and here, I am generally in agreement with Root that the Privileges or Immunities Clause extends beyond the rights enumerated in the Constitution. But it is important to note the full complexity of the record and to avoid overreading the evidence. The Civil Rights Act of 1866 protected what many congressmen saw as rights of citizens of the United States. Representatives James Wilson and William Lawrence, Senator Lyman Trumbull, and Speaker of the House Schuyler Colfax on the campaign trail (see p. 14 of the Cincinnati Commercial collection), for instance, stated that rights in the Civil Rights Act of 1866, like the constitutionally-unenumerated right to contract, were paradigm cases of rights of citizens of the United States. The way such rights were discussed is powerful evidence that such rights were secured--and, importantly, secured not merely against racial discrimination--by the Privileges or Immunities Clause. The proponents of the Civil Rights Act spoke of such rights of citizens of the United States in unqualified terms, and this evidence is indeed extremely important background to the Privileges or Immunities Clause. But the Civil Rights Act itself is plainly limited to racial discrimination: it covered constitutionally-unenumerated rights, to be sure, but it guaranteed freedmen only the "same right ... as is enjoyed by white citizens." Root's argument would be far stronger were he to acknowledge this difference. As citizens of the United States, the freedmen had such rights absolutely, but they only had them under the Civil Rights Act of 1866 to the extent white citizens did too. We must distinguish the views of the proponents of the Civil Rights Act--views which were also expressed in the Privileges or Immunities Clause--from the Civil Rights Act itself.

Further, it is important to remember the difference between examples and definitions. Even if we know that the right to contact was considered a right of citizens of the United States in 1866, we still need to ask, "in virtue of what?" Just as Socrates demanded of Euthyphro the "general idea" of piety--"a standard to which I may look, and by which I may measure actions, whether yours or those of any one else, and then I shall be able to say that such and such an action is pious, such another impious"--we need a standard for what makes a right count as a right of citizens of the United States. My book, for instance, defends the local or national prevalence of a right among other similarly-situated fellow citizens of the United States as the relevant criterion. Root might disagree. But we need to know the framers' textually-expressed criterion for membership in the "privileges or immunities of citizens of the United States" set, not merely their list of such privileges.

Root's argument would also be more useful if he made it easier for readers to check out the context of his evidence. Bingham's reference to the right "to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil" came at the end of his March 1871 speech on the Civil Rights Act of 1871. Two pages earlier, however--these are Congressional Globe pages, which were quite large--Bingham said that the rights of citizens of the United States were "chiefly defined" in the Bill of Rights, which he then read in full to the House of Representatives, and were not the same as the rights protected by the Comity Clause of Article IV. It is important as well to remember that Bingham had two months earlier, writing on behalf of the House Judiciary Committee, rejected voting rights for women under the Privileges or Immunities Clause by using a Comity-Clause-focused theory that, on its face, contradicted his view in March. I attempt my reconciliation of Bingham's views at pages 59-62 and 74-75 of my book, leaning on the "chiefly," but it is heavy sledding. (Lash's attempt is at pages 236-41 and 246-52 of his book.) Free-labor, Comity-Clause-and-Corfield-focused, Comity-Clause-focus-rejecting, and enumerated-rights-only readings of the Privileges or Immunities Clause all can claim some support from different bits of Bingham in 1871, but precisely because of the contrary evidence, it would be too much to say, as Root does, that there is "no problem" for Bingham here.

Update 7/21: Some similar points from Lash (citing this post!) here.

Update 7/23: Root replies to Lash, largely quoting the beginning of this post. Always happy for a debate to end with one side complaining "Why don't you agree with Green's third paragraph?" and the other "Why don't you agree with Green's first paragraph?"