Lash v. Root on Privileges or Immunities

|The Volokh Conspiracy |

One of my summer projects is to take a deep dive into Kurt Lash's book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Although my friend Kurt and I have disagreed in the past about the Ninth Amendment, I intend to keep an open mind as I examine the evidence he presents. Before I had that chance, however, a debate has broken out between Kurt Lash and Damon Root on the meaning of the Privileges or Immunities Clause.

In a two-part review of Damon's book, Overruled: The Long War for Control of the U.S. Supreme Court, here and here Kurt criticized what he calls "contemporary libertarian constitutional theory" and the thesis that the Privileges or Immunities Clause of the Fourteenth Amendment protected unenumerated rights as well as the rights that were included in the text of the Constitution. Damon responds to Kurt here and here. I commend all these posts to interested readers. Although Damon is a journalist, not a legal scholar like Kurt, I think he does a fine job defending the claim that the Privileges or Immunities of citizens of the United States included their fundamental, natural, but unenumerated rights. So too does Evan Bernick here.

Although I am on record as holding the view defended by Damon, I do not wish to address this issue until I have had the chance to seriously explore Kurt's book. However, I can offer two observations.

First, Kurt's thesis is that the original meaning of the Privileges or Immunities Clause refers exclusively to rights that appear in the text and he defends the widely-criticized decision in the Slaughter-House Cases for its 5-4 repudiation of the right to pursue a lawful occupation. However, if Kurt is really correct about the public meaning of "privileges or immunities" of citizens of the United States, one might have expected someone on the Supreme Court to advocate that interpretation in Slaughter-House. Obviously, the four dissenters adopted the reading Kurt calls "libertarian." But Justice Miller's opinion for the majority enforces a narrow and somewhat weird combination of a few rights that were included in the text and others that were not.

As far as Kurt's enumerated rights thesis goes, Miller's biographer, historian Michael Ross in Justice of Shattered Dreams writes of the claim that the majority intended to incorporate the bill of rights: "These arguments are intriguing but inconclusive due to the fact that Miller never in any of his subsequent opinions, public speeches, or extant private correspondence said that that was what he intended in Slaughter-House." More importantly, it was not what Miller wrote. Again, if this what everyone thought the Privileges or Immunities Clause meant at the time, one would think at least one justice would have adopted that position.

Second, in a comment on Kurt's post, Devin Watkins replies to Kurt's confident assertion that John Bingham held Kurt's reading of the Privileges or Immunities Clause with this 1871 report by Bingham for the House Judiciary Committee on the meaning of the 14th and 15th Amendments:

The clause of the fourteenth amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the fourteenth amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution. The words "citizens of the United States," and "citizens of the States," as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution. . . .

The Supreme Court of the Unites States has ruled that, according to the express words and clear meaning of the second section, fourth article of the Constitution, no privileges are secured by it except those which belong to citizenship. (Conner et al. vs. Elliott et al., 18 Howard, 593.) In Corfield vs. Coryell, (4 Washington Circuit Court Reports, 380) the court say:

"The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free Governments, 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. What these fundamental principles are would perhaps be more tedious than difficult to enumerate."They may, however, be all comprehended under the following general heads: protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through or to reside in any other State for the purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise as regulated and established by the laws or constitution of the State in which it is to be exercised.

But we cannot accede to the proposition which was insisted on by the counsel, that under this provision of the Constitution (section two, article four) the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State."

Kurt claims that these Corfield "privileges and immunities" were to be protected only against discrimination under the Equal Protection Clause, not the Privileges or Immunities Clause. But Bingham is citing Corfield solely to explain the meaning of the Privileges or Immunities of Citizens of the United States, and makes no mention of the Equal Protection Clause here.

Of course, no one statement of this kind is dispositive. And this by Bingham came some 3 years after the 14th Amendment was adopted. But others like Senate sponsor Jacob Howard made the same argument when explaining the meaning of "privileges or immunities of citizens of the United States" to the Senate (though Howard also added the personal guarantees expressed in the first 8 amendments) when it was under consideration. And the quote from Bingham upon which Kurt relies that stresses the first eight amendments is also from 1871.

In a reply to Watkins, Kurt says, "there is nothing about this post-adoption committee Report that calls into question the voluminous evidence regarding the original understanding of the Fourteenth Amendment's privileges or immunities clause as applying the Bill of Rights against the States." I am very skeptical of his reading of the passage above, but I will need to read his book to know whether his reading makes sense. (There is much interesting debate between Watkins and Kurt in the comments.)

But with these two asides, I will avoid any further involvement in this debate until I have had time to carefully study Kurt's book. I write mainly to recommend the exchange between Lash and Root.