Privileges or immunities

Northwestern University Law Review

Volumn 105, Issue 1, 2011, Pages 61-147

  Hamburger, Philip ^a  

^a NONE

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EID: 79956138714     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (436)

1. U.S. CONST. amend. XIV, § 1 (,No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.,).
2. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 66, 74 (1873) (upholding law restricting slaughtering to a city corporation and rejecting argument that the Privileges or Immunities Clause protected individuals from their own states). Among the judges who look back regretfully at the path not taken is Justice Thomas, whose concurrence in McDonald v. City of Chicago argues that the Privileges or Immunities Clause incorporated the Bill of Rights. 130 S. Ct. 3020, 3059-60 (2010) (Thomas, J., concurring in part and concurring in judgment) (holding that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment against the states). For the incorporation of incorporationist fallacies in Justice Thomas's opinion, see infra note 305 and accompanying text.
3. According to the Comity Clause, The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States., U.S. CONST. art. IV, § 2, cl. 1.
4. Richard A. Epstein, Of Citizens and Persons: Reconstructing the Privileges or Immunities Clause of the Fourteenth Amendment, 1 N.Y.U. J.L. & LIBERTY 334, 342 (2005) (,No satisfactory interpretation of the Fourteenth Amendment.can elide the distinction between citizens and persons.,)
5. Louis Henkin, Selective Incorporation, in the Fourteenth Amendment, 73 YALE L.J. 74, 78 n.16 (1963) (,[T]he provisions of the Bill of Rights are not rights of citizens only but are enjoyed by non-citizens as well.,).
6. Recognizing that the focus on citizens seems incompatible with incorporation, Professor Akhil Amar defends incorporation by proposing that noncitizens were not necessarily protected by the Bill of Rights:,Surely the fact that Americans may often extend many benefits of our Bill [of Rights] to, say, resident aliens-for reasons of prudence, principle, or both-does not alter the basic fact that these rights are paradigmatically rights of and for Americans citizens., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 170 (1998).
7. A scholar attentive to the text, however, might recognize that the Constitution in 1789 and 1791, and the Fourteenth Amendment in 1868, carefully distinguished between citizens and persons. As Representative Bingham himself observed,[t]he alien is not a citizen, and this was why,[y]our Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law., CONG. GLOBE, 39th Cong., 1st Sess. 1292 (1866).
8. Rather than focus on citizens, the Bill of Rights generally protects all persons enjoying the protection of the law, including all citizens, all lawfully visiting aliens in amity, most unlawfully present aliens in amity, and even some enemy aliens. See Philip Hamburger, Beyond Protection, 109 COLUM. L. REV. 1823, 1977-78 (2009). It therefore is troubling to read that,Americans may often extend many benefits of our Bill [of Rights] to.resident aliens,-as if the application of the Bill of Rights beyond citizens were merely discretionary. In order to incorporate the Bill of Rights, Amar's analysis profoundly curtails its application.
9. Incidentally, the textual obstacle to incorporation cannot be explained away as an accident of drafting, for the men who proposed the Amendment clearly were attentive to the distinction between the rights of persons and the privileges and immunities of citizens. For details, see infra text accompanying notes 238-43, 252, 259-60.
10. U.S. CONST. art. IV, § 2, cl. 1.
11. This Article uses the term,antislavery, more for its convenience than its clarity. The privileges and immunities debate explored here concerned the rights of free blacks rather than of slaves, and this question often split Northerners, even those who shared a distaste for slavery.
12. Crandall v. State, 10 Conn. 339, 348 (1834), discussed in the text infra accompanying notes 104-07. But increasingly, opposition to interstate discrimination against free blacks became a core question for antislavery Americans. Slavery became an all-or-nothing battle, and in this context, although there remained some opponents of slavery who did not favor privileges and immunities for free blacks, the privileges and immunities of free blacks became prominent as a central point of dispute in the broader quarrel.
13. infra Part IV.A.
14. William Nelson observes:,Nearly all the scholarship dealing with the adoption of the amendment which is addressed to lawyers is based on a single set of source materials: the debates of Congress., WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 5 (1988) (footnote omitted). Nonetheless, he believes that,[i]t is even more important to ask new questions than to examine more sources.,
15. Id. at 6.
16. There is much learned scholarship finding incorporation in the debates, including MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 92-130 (1986) [hereinafter CURTIS, NO STATE SHALL ABRIDGE];
17. JAMES H. ETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 258 (1978);
18. AMAR, supra note 4, at 163-80;
19. Akhil R. Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1218-33 (1992)
20. Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities, 11 U. PA. J. CONST. L. 1295 (2009);
21. Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 58-63 (1993)
22. Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071 (2000) [hereinafter Curtis, Historical Linguistics]
23. Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. REV. 1, 3 (1996) [hereinafter Curtis, Resurrecting]
24. Michael Kent Curtis, The Klan, the Congress, and the Court: Congressional Enforcement of the Fourteenth and Fifteenth Amendments & the State Action Syllogism, a Brief Historical Overview, 11 U. PA. J. CONST. L. 1381, 1406 (2009) [hereinafter Curtis, The Klan]
25. Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 910-17 (1986)
26. Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 NW. U. L. REV. 1106, 1109 (1994).
27. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L. REV. 5 (1949) [hereinafter Fairman, Fourteenth Amendment]. Even Fairman, however, conceded some partial incorporation.
28. Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, 30 B.U. L. REV. 49, 77 (1950) (,Congress, no doubt,.meant to establish some substantial rights even though the State might not itself have established them for its own citizens.,).
29. EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869, at 117 (1990) [hereinafter MALTZ, CIVIL RIGHTS] (observing that incorporation has not been,proven beyond a reasonable doubt,)
30. Earl M. Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 AM. J. LEGAL HIST. 305, 337 (1988)
31. George C. Thomas III, The Riddle of the Fourteenth Amendment: A Response to Professor Wildenthal, 68 OHIO ST. L.J. 1627, 1657 (2007) (concluding that the Clause is a riddle). Others are more forcefully critical of incorporation)
32. RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 134-56 (1977)
33. RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1989)
34. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789-1888, at 342-51 (1985);
35. Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law:,Here I Go Down That Wrong Road Again, 74 N.C. L. REV. 1559, 1564, 1571-92 (1996)
36. Stephen B. Presser, Some Alarming Aspects of the Legacies of Judicial Review and of John Marshall, 43 WM. & MARY L. REV. 1495, 1497 (2002). In addition, there are scholars who argue that the Privileges or Immunities Clause was understood to establish equality, even among a state's own citizens.
37. NELSON, supra note 8, at 115-18
38. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1388 (1992).
39. Many commentators have thought the Clause puzzling. According to the Beards, the entire first article of the Amendment was,mysterious, and,cabalistic., 2 CHARLES & MARY BEARD, THE RISE OF AMERICAN CIVILIZATION 111-14 (Macmillan 1930) (1927). Seizing upon such assumptions to impute meaning where none was clearly discernable, Justice Jackson argued that,the difficulty of the task does not excuse us from giving these general and abstract words whatever of specific content and concreteness they will bear as we mark out their application, case by case.,
40. Edwards v. California, 314 U.S. 160, 183 (1941) (Jackson, J., concurring)
41. NELSON, supra note 8, at 3-5 (noting,conflicting interpretations, and arguing that the uncertain meaning leaves judges free to develop incorporation).
42. Gerald Gunther writes:,In no part of the congressional debates on the Amendment is there greater evidence of vagueness and inconsistencies than in the discussions of 'privileges and immunities.', GERALD GUNTHER, CONSTITUTIONAL LAW 417 (11th ed. 1985). Perhaps most famously, Robert Bork analogized the Clause to an inkblot or Rorschach test.
43. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 166 (1990).
44. MICHAEL KENT CURTIS, FREE SPEECH,THE PEOPLE'S DARLING PRIVILEGE,: STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY, 266-68 (2000) [hereinafter CURTIS, DARLING PRIVILEGE];
45. CURTIS, NO STATE SHALL ABRIDGE, supra note 8, at 26-56;
46. Michael Kent Curtis, The Bill of Rights and the States: An Overview from One Perspective, 18 J. CONTEMP. LEGAL ISSUES 3, 20-25 (2009).
47. AMAR, supra note 4, at 262-63. Incidentally, the nineteenth-century Americans who made claims for slaves and abolitionists in terms of privileges and immunities did not always distinguish between the privileges and immunities of state citizens and those of citizens of the United States.
48. Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part I:,Privileges and Immunities, as an Antebellum Term of Art, 98 GEO. L.J. 1241, 1244, 1287 (2010).
49. Infra text accompanying notes 154-56.
50. Lash, supra note 13, at 1285.
51. Id. at 1285-87. Similarly, Amar observes that the,rights, and privileges and immunities, of citizens of the United States could mean the rights held under federal law.
52. AMAR, supra note 4, at 170.
53. infra Part IV.A.
54. Paul Finkelman shows how mobility threatened slavery and how the resulting tensions soon overwhelmed the fragile structure of the Comity Clause.
55. PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY 9 (1981). Also relevant, for the shift toward federal citizenship, is the work of Robert Kaczorowski, although his work assumes that this shift and the Fourteenth Amendment entailed incorporation.
56. Kaczorowski, supra note 8, at 910, 913.
57. The conclusion that the Privileges or Immunities Clause echoed the Comity Clause is not unfamiliar, but it rests mostly on the relatively thin foundation of the 1866 congressional debates. For example, Fairman alludes to the possibility of a Comity Clause reading, but apparently hesitates to embrace it.
58. Fairman, Fourteenth Amendment, supra note 9, at 56. The current scholarly attitude toward this position is almost one of incredulity: Scholars do not generally seem to have thought much about this issue, perhaps because it is so unlikely that a state would think of discriminatorily denying any Bill of Rights guarantees to out-ofstate visitors. Think about it. Could it really be imagined that a state, under Article IV, could properly deny such travelers freedom of speech, or trial by jury, while maintaining such rights for its own citizens?
59. Bryan H. Wildenthal, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873, 18 J. CONTEMP. LEGAL ISSUES 153, 195 (2009).
60. In contrast, Michael Kent Curtis takes the Comity Clause interpretation of the Privileges or Immunities Clause seriously, and his response to it is therefore particularly detailed and interesting.
61. Curtis, Resurrecting, supra note 8, at 44-67. His arguments against the Comity Clause interpretation, however, are misplaced. The first argument is that,Republicans were deeply concerned about denials of free speech, and that under,the equality argument, a state,could deny basic rights if it denied them to all residents of the state also.,
62. Id. at 46-47.
63. It is true that abolitionists and then Republicans were concerned about freedom of speech in Southern states, and it is true that Southern states could for some purposes wiggle out of guarantees of equality. But just because Republicans worried about free speech does not mean that they generally doubted the efficacy of equality guarantees or that they addressed this danger in the Privileges or Immunities Clause or, indeed, in any other constitutional guarantee. Although the free speech rights of abolitionists mattered, the rights of free blacks seemed far more central, and what free blacks needed was equality-equal protection within their own states and cross-jurisdictional equality when they went to other states. Curtis's second argument is that the word,abridge, in the Privileges or Immunities Clause alluded to any diminishment of the relevant rights, not merely to discrimination.
64. Id. at 47.
65. In the abstract, this sounds significant, but it is, in fact, irrelevant to the argument here. The Comity Clause addressed interstate discrimination, and this Article argues that the Privileges or Immunities Clause barred states from diminishing or,abridging, Comity Clause rights. Third, Curtis denies that the Privileges or Immunities Clause merely gave effect to a narrow reading of the 1866 Civil Rights Act.
66. Id. at 50.
67. This, however, is another irrelevant point, for this Article does not place the Privileges or Immunities Clause on the Civil Rights Act, but instead argues that the Privileges or Immunities Clause echoed another 1866 statute: Representative Shellabarger's Privileges and Immunities Bill.
68. infra Parts V.B-C, VI.A.
69. Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230).
70. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
71. A Bill to Declare and Protect All the Privileges and Immunities of Citizens of the United States in the Several States, H.R. 437, 39th Cong. (1866).
72. infra Part V.B.
73. A recent article summarizes the frustrations of seeking the framers' personal intent:,Unfortunately for historians attempting to learn more concerning the drafters' intent, no record of the Committee's debates exists, and 'extensive investigation of private correspondence by a legion of historians has unearthed only the most fragmentary evidence on the issue.',
74. Douglas G. Smith, A Lockean Analysis of Section One of the Fourteenth Amendment, 25 HARV. J.L. & PUB. POL'Y 1095, 1136 (2002) (quoting MALTZ, CIVIL RIGHTS, supra note 9, at 81).
75. For the contrast between the intent of framers and the intent, sense, or meaning of their legislative act
76. PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 49-52, 57, 295-96 (2008).
77. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 96 (1873) (Field, J., dissenting).
78. Fairman, Fourteenth Amendment, supra note 9, at 139.
79. Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 CHI.-KENT L. REV. 627, 627 (1994) (internal quotation marks omitted).
80. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, 195 (2004) (arguing that the Supreme Court,set aside, the,original meaning, of the Clause).
81. RANDY E. BARNETT, CONSTITUTIONAL LAW: CASES IN CONTEXT 292 (2008)
82. Richard L. Aynes, Enforcing the Bill of Rights Against the States: The History and the Future, 18 J. CONTEMP. L. ISSUES 77, 151 (2009) (quoting Barnett). Rather than criticize Slaughter-House, a recent article concludes that,[a] careful examination reveals nothing in Slaughter-House that is inconsistent with incorporation.,
83. Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?, 94 MINN. L. REV. 102, 105 (2009).
84. however, infra note 304, for the words of Justice Miller.
85. In support of its conclusion about Slaughter-House, that article argues that,[t]he anti-incorporation reading did not emerge until.three decades after Slaughter-House.,
86. Magliocca, supra, at 105. This argument, however, relies on very narrow evidence: the opinions of judges in the federal courts. Outside the courts, those who sought incorporation of First Amendment rights assumed that they needed an additional amendment.
87. infra Part VII.
88. Moreover, newspaper and periodical literature shows that contemporaries understood Slaughter-House to have rejected incorporation.
89. For example, a newspaper article noted that the opinion of the Court,was substantially a definition of State and National citizenship, with a separation of the rights which distinctively belong to each., Another View of State Rights, N.Y. DAILY TRIB., May 5, 1873, at 4. Incidentally, when incorporation was more widely demanded, such observations about Slaughter-House became widespread. For example, when speaking of the Fourteenth Amendment, a professor at the University of Virginia said that the Supreme Court in Slaughter-House,instead of intimating for a moment that the rights and privileges secured under this amendment were those specified in the first eight amendments, specif[ied] others which, according to circumstances, may be regarded as the immunities and privileges intended.,
90. JAMES H. GILMORE, ARTICLES OF CONFEDERATION AND CONSTITUTION OF THE UNITED STATES, AND NOTES OF A COURSE OF LECTURES ON THE CONSTITUTION OF THE UNITED STATES 313 (1891).
91. Similarly, Andrew McLaughlin noted that Slaughter-House rejected the proposition that the,'privileges and immunities of citizens of the United States'.include the restrictions in the first eight amendments.,
92. Andrew McLaughlin, Mississippi and the Negro Question, ATLANTIC MONTHLY, Dec. 1892, at 828, 835.
93. For this point, at much greater length, with a citation to Slaughter-House, J.I. CLARK HARE, AMERICAN CONSTITUTIONAL LAW 539 (1889).
94. One criticism of Justice Miller's opinion in Slaughter-House is that whenever he quoted the Comity Clause, he rewrote it to allude to,citizens of the several states, rather than, as in the Constitution,citizens in the several states. LOUIS LUSKY, BY WHAT RIGHT?: A COMMENTARY ON THE SUPREME COURT'S POWER TO REVISE THE CONSTITUTION 194-95 (1975)
95. Richard L. Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About Its Incorporation, 39 AKRON L. REV. 289, 299 (2006). Rather than deceptive misquotation, however, this probably was an attempt to clarify the meaning of the Clause after so many decades of reinterpretation and rewriting. For the rewriting,
96. Infra text accompanying notes 181-83.
97. FINKELMAN, supra note 17, at 9-13 (showing how comity broke down when, beginning in the 1830s, Southern slaveholders in Northern states were denied their right of property in their slaves).
98. Although Finkelman focuses mostly on the claims of slaveowners and their slaves rather than those of free blacks, his argument generally supports the point here about the claims of free blacks. Incidentally, Finkelman notes that courts had difficulty maintaining the distinctions among transients, visitors, sojourners, and residents.
99. Id. at 9. In this spirit, this Article casually speaks of travelers, visitors, and other mobile Americans without drawing distinctions among such persons.
100. The attention to the Comity Clause claims by slaveowners has unfortunately distracted attention from the significance of such claims by, or on behalf of, free blacks.
101. id. at 280-81 (focusing on claims by slaveowners and only briefly discussing claims by free blacks)
102. Lash, supra note 8, at 1146-49 (regarding claims by slaveowners).
103. Slaveowners who took their property north did not ordinarily have to worry about citizenship issues when making Comity Clause claims, and their slaves did not usually rest their claims on the Comity Clause. Free blacks, however, depended on the Clause to protect them from states that sought to exclude or enslave them.
104. FINKELMAN, supra note 17, at 9-13.
105. 32 U.S. (7 Pet.) 243, 247 (1833).
106. For the restriction of legislative and presidential office to citizens of the United States,
107. U.S. CONST. art. I, §§ 2-3; art. II, § 1.
108. CONG. GLOBE, 39th Cong., 1st Sess. 1090 (1866) (statement of Rep. John Bingham on Feb. 28, 1866).
109. These studies of the meaning of the words tend to argue that the words,privileges, and,immunities, were understood to include freedom of speech and the press and the other sorts of rights that are enumerated in the U.S. Bill of Rights.
110. Curtis, Historical Linguistics, supra note 8, at 1146-48;
111. Curtis, Resurrecting, supra note 8, at 20;
112. Curtis, The Klan, supra note 8, at 1406
113. Lash, supra note 8, at 1146-49.
114. The studies also show that the words,rights,liberties,privileges, and,immunities, were often used,interchangeably., CURTIS, NO STATE SHALL ABRIDGE
115. supra note 8, at 64-65.
116. Although such evidence is interesting, it is of doubtful relevance. What matters here is not the generic meaning of the words, but the meaning of a particular phrase in a particular context and how the phrase came to be adopted in a particular amendment.
117. The treaties could also employ variants of the phrase, such as,privileges, rights and immunities.
118. infra note 154.
119. For example, a treaty provided:,[T]he English merchants and other subjects of the King of Great Britain shall enjoy the same, and as great privileges and immunities, as to their being imprisoned, arrested, or any other way molested in their persons, houses, books of accounts, merchandizes and goods, within the extent of the states of the most renowned King of Portugal, as have been, or shall be for the future granted to any Prince or people in alliance with the King of Portugal., Articles of Peace and Commerce, Gr. Brit.-Port., art. XV, Jan. 29, 1642, in 2 A COLLECTION OF TREATIES BETWEEN GREAT BRITAIN AND OTHER POWERS 257-58, 265 (George Chalmers ed., 1790).
120. In their August 25, 1761 treaty, France and Spain reportedly guaranteed that,their natural born subjects are to enjoy all rights, privileges and immunities, &c. in both kingdoms. JOHN ALMON, AN IMPARTIAL HISTORY OF THE LATE WAR 332 (1763).
121. ARTICLES OF CONFEDERATION of 1781, art. IV, para. 1.
122. In a central drafting document from the 1787 Convention, the Committee of Detail explained that it was desirable,[t]o use simple and precise language, and general propositions, according to the example of the constitutions of the several states. Edmund Randolph, Draft Sketch of Constitution, in SUPPLEMENT TO MAX FARRAND'S THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 183 (James H. Hutson ed., 1987).
123. U.S. CONST. art. IV, § 2, cl. 1.
124. Of course, even among whites, there were some doubts as to who could claim the privileges and immunities of the citizens of a state. Such questions arose, for example, when Massachusetts in 1785 contemplated a statute denying the privileges and immunities of its citizens to Tories who had fled to join the British but later returned to other states and then, after the war, came back to Massachusetts.
125. Many legislators doubted the constitutionality of this measure under the Articles of Confederation, and when the question was put to the justices of the Massachusetts Supreme Judicial Court, they gave an advisory opinion: [T]hat all Persons, who are or shall be naturalized, by any State in the Union, from any Class or denomination of Aliens, are by the Confederation, Considered as Intitled to all the priviledges, and immunities of free Cityzens in the several States; and of Course in this Commonwealth whenever they shall come to reside within the same. Opinion of Justices of the Supreme Judicial Court on an Article of the Confederation (June 22, 1785) (docketed Oct. 19, 1785), MSA, Senate Documents, Rejected Bills, 1785, No. 344, Box 11. For further Details
126. HAMBURGER, supra note 22, at 597-600.
127. In another eighteenth-century decision, Bayard v. Singleton, the North Carolina judges seem to have come close to assuming that the Comity Clause not merely gave visitors the rights of citizens, but required that they be deemed citizens for some purposes. A North Carolina statute (which protected purchasers of confiscated Tory lands) barred the plaintiffs from enjoying a jury trial, and the judges held that the enactment violated the North Carolina Constitution. The plaintiffs, however, were from New York, and the judges therefore had to consider the privileges and immunities question. According to a newspaper, they held that,[t]hese plaintiffs being citizens of one of the United States, are citizens of this State, by the confederation of all the States; which is to be taken as a part of the law of the land, unrepealable by any act of the General Assembly., Bayard v. Singleton (N.C. Super. Ct. 1787), as reported in Correspondence (Newbern, June 7), VA. INDEP. CHRON. (July 4, 1787). Although this may have been only a compressed account of what the judges said, the judges themselves may have used the reported phrasing. Certainly, the Massachusetts Supreme Court said in 1827:,The privileges and immunities secured to the people of each State in every other State, can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization., Abbot v. Bayley, 23 Mass. (6 Pick.) 89, 91 (1827).
128. Kurt Lash has noted that the Comity Clause could not have protected a visitor in all local rights, although on the assumption that there was rough agreement on the solution of limiting rights.
129. Lash, supra note 13. In fact, this was but one of at least three different solutions.
130. 37 ANNALS OF CONG. 47 (1820) (statement of Sen. Burrill).
131. Abbot, 23 Mass. at 91-93. Immediately prior to the statement quoted above in the text, the justices said: The privileges and immunities secured to the people of each State in every other State, can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office, without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens, that is, they shall not be deemed aliens, but may take and hold real estate, and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized.
132. Id. at 91-92.
133. 37 ANNALS OF CONG. 47 (1820).
134. 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230).
135. Id. at 551-52.
136. Id. at 552.
137. Id. at 551. According to a 1797 case on the Comity Clause,It seems agreed.by the counsel on both sides, that.it does not mean the right of election, the right of holding offices, the right of being elected., Campbell v. Morris, 3 H. & McH. 535, 554 (Md. 1797). By the early nineteenth century, however, equal suffrage had come to seem so important that judges such as Bushrod Washington came to assume it was too fundamental to be omitted. Incidentally, the court in Campbell also noted that,[i]t seems agreed, from the manner of expounding, or defining the words immunities and privileges, by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one.
138. Corfield, 6 F. Cas. at 552.
139. U.S. CONST. art. IV, § 2, cl. 1.
140. The incongruity of this position becomes especially clear when one realizes that the rights it rendered contingent were those that seemed particularly important or fundamental. As early as 1785 (in defense of a visiting Frenchman, the Chevalier de Longchamps), an anonymous writer argued:,The citizens are members of the civil society; and, according to our constitution, a year's residence is necessary to qualify one for the important privileges. The inhabitants and subjects, as distinguished from citizens, are strangers who are permitted to settle and stay in the country., A Citizen, For the Chronicle of Freedom, INDEP. GAZETTEER (Phila.), Feb. 5, 1785, at 2. Along similar lines, the Massachusetts Supreme Court in the 1820s cautioned that not all rights were immediately available under the Comity Clause:,[T]his privilege is qualified and not absolute, for there had to be qualifications on the exercise of,political or municipal rights., Abbot v. Bayley, 23 Mass. (6 Pick.) 89, 91-92 (1827). Thus, visitors,cannot enjoy the right of suffrage or of eligibility to office, without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove.
141. Id. at 92-93 (holding that a feme covert, who had been expelled by her husband, and who came to Massachusetts and main respectained herself as a single woman, while her husband married and cohabitated with another woman and remained a citizen and resident of another state, was entitled to sue as a feme sole). Such views were caustically summarized in an opinion given during the Civil War by Attorney General Bates. Writing about privileges and immunities, he observed that some writers loosely,suggest, without affirming, that there may be different grades of citizenship, of higher and lower degree, in point of legal virtue and efficacy., Citizenship, 10 Op. Att'y Gen. 382, 388 (1862).
142. Corfield, 6 F. Cas. at 551.
143. On the other hand, the Connecticut laws that sought to exclude paupers and vagabonds from other states were in tension with the Comity Clause. For this point
144. REPORT OF THE ARGUMENTS OF COUNSEL, IN THE CASE OF PRUDENCE CRANDALL, PLFF. IN ERROR, VS. STATE OF CONNECTICUT, BEFORE THE SUPREME COURT OF ERRORS, AT THEIR SESSION AT BROOKLYN, JULY TERM, 1834, at 13-14 (Bos., Garrison & Knapp 1834) [hereinafter PRUDENCE CRANDALL].
145. Just how carefully this third understanding of the Comity Clause sorts out different rights can be observed in the right to contract, including the right to enforce a contract. Unlike the right to vote, which did not belong to minors, the right to enter into contracts belonged to all persons and hence all citizens, and it thus apparently had to be available to visitors. At first glance, one might think that the Comity Clause fails to distinguish the right to contract from the right to vote because a minor or other legally incompetent person could not make a contract for himself any more than he could vote. Yet even persons legally incompetent to contract for themselves could do so through a guardian or by subsequent ratification. The right to contract thus belonged to citizens as a whole, even if some of them could not exercise the right by themselves. Contracting was therefore among the,privileges and immunities of citizens in the several states.
146. For example, in an early seventeenth-century English case, the Court of Common Pleas distinguished between,particular privileges, and the more,general liberties of the people., Norris v. Staps, (1616) 80 Eng. Rep. 357 (C.P.) 358
147. Hob. 210, 211.
148. The question as to whether,citizens, included all natural subjects need not be pursued further here, but note that this perspective was concisely summarized in later litigation:,The term, citizen, is, under a republican government, what the term subject is under a monarchy: it embraces high and low-rich and poor-male and female-white and colored-a general term which includes the whole republican family-all who are free and live under the same government, and owe to it permanent allegiance-subject to its duties-entitled to its privileges. PRUDENCE CRANDALL
149. supra note 57, at 25. The same sort of issue arose in questions about citizenship for purposes of jurisdiction under Article III of the U.S. Constitution.
150. Corfield, 6 F. Cas. at 552.
151. FINKELMAN, supra note 17, at 9, but this focuses mostly on unfree persons taken to free states. In contrast, it was the mobility of free blacks that first elevated the question to a national crisis and that mattered for the development of ideas about the privileges and immunities of citizens of the United States.
152. Missouri Enabling Act, ch. 22, §§ 1, 8, 3 Stat. 545, 548 (1820).
153. MO. CONST. of 1820, art. III, § 26.
154. Robert Pierce Forbes, THE MISSOURI COMPROMISE AND ITS AFTERMATH 110 (2007).
155. ARTICLES OF CONFEDERATION of 1781, art. IV, para. 1. In its entirety, it read: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.37 ANNALS OF CONG. 47 (1820).
156. Id. at 48.
157. Id. at 49.
158. Id. The views of Northern congressmen reflected popular Northern opinion. For example, the Vermont legislature submitted resolutions to Congress complaining that the Missouri Constitution,contains provisions to prevent freemen of the United States from emigrating to and settling in Missouri, on account of their origin, color and features, and that this was,repugnant to the Constitution of the United States.
159. Id. at 80 (resolutions of the Vermont legislature on November 15, 1820).
160. Southerners felt they got the better of the Northern states. Later, during the debates on what became the Kansas-Nebraska Act, Senator Badger of North Carolina recalled how Missouri became a state: Then how was the State got in at last? By a marvellous contrivance.I really think it is one of the most remarkable species of humbuggery that ever was palmed off on any legislative body, composed of people who had attained the age of maturity-I do not say those who had come to the age of twenty-one, but those who had passed fourteen, if any such ever acted as legislators. SPEECH OF THE HON. GEORGE E. BADGER, OF NORTH CAROLINA, IN THE UNITED STATES SENATE, FEBRUARY 16, 1854, ON THE NEBRASKA BILL 7 (Sentinel Office 1854). After quoting the second Missouri Compromise, Badger explained:,In other words, Missouri was admitted upon the 'fundamental condition' that the State should agree that her constitution was not paramount to the Constitution of the United States. That is the whole of it.
161. This was, he admitted,absolute nonsense, but I suppose it was the best that could be done.
162. Id. And when a fellow senator asked,Did not Mr. Clay draw up that provision?, Badger answered:,I recollect hearing Mr. Clay once.say, in substance, that he laughed in his sleeve at the idea that people were so easily satisfied.
163. Id. at 8.
164. Res. of Mar. 2, 1821, 3 Stat. 645. For Clay's proposal of the resolution for the joint committee,
165. 37 ANNALS OF CONG. 1228 (1821).
166. Act of June 26, 1821, 1825 Mo. Laws 68, 69.
167. 37 ANNALS OF CONG. 1786 (1821).
168. EARL M. MALTZ, THE FOURTEENTH AMENDMENT AND THE LAW OF THE CONSTITUTION 37 (2003). For Missouri's evasion of the condition of its statehood in 1825 and its outright violation of it in 1847
169. WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA, 1760-1848, at 124 (1977).
170. As a recent commentator on the Missouri Compromise observed, Perhaps surprisingly, few legislators, even in the South, had formally disputed the citizenship of free blacks. FORBES,
171. supra note 65, at 110. Although Charles Pinckney of South Carolina claimed in the House that he had written the Comity Clause and that he had never imagined that there could be a black citizen, free blacks clearly were citizens in a number of states, and in some of them (including two Southern states, Tennessee and North Carolina) free blacks had a right to vote-a right that was not always denied.
172. Id. at 111, 113.
173. An Act to Establish an Uniform Rule of Naturalization, ch. 3, 1 Stat. 103 (1790).
174. Rights of Free Virginia Negroes, 1 Op. Att'y Gen. 506 (1821).
175. 2 JOHN CODMAN HURD, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES 97, 100, 109, 161 (Little, Brown & Co. 1862) (describing statutes adopted by South Carolina, Georgia, and Louisiana).
176. Rights of Free Virginia Negroes, 1 Op. Att'y Gen. at 506.
177. Id. at 507.
178. In 1824, Wirt gave a very different opinion about a South Carolina statute. Adopted following the Missouri crisis, the statute provided for the imprisonment of any free black seaman while his vessel was present in any harbor or port of the state. When Britain complained about the imprisonment of one of its subjects, Wirt opined that this provision of the statute was unconstitutional, first because of the exclusive power of Congress over commerce among the states and with foreign nations, and second because of an inconsistent treaty with Britain. Validity of the S.C. Police Bill, 1 Op. Att'y Gen. 659, 661 (1824). This opinion was given immediately after the Supreme Court's decision in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), which suggested that the possibility of exclusive congressional power over commerce among the states and with foreign nations. Perhaps more to the point, Gibbons did not involve any question about the citizenship of free blacks.
179. Draft Opinion by Roger B. Taney, in Carl B. Swisher, Mr. Chief Justice Taney, in MR. JUSTICE 4345 (Allison Dunham & Philip B. Kurland eds., Univ. of Chi. Press 1964) (1832)
180. WIECEK, supra note 81, at 139.
181. Ely v. Thompson, 10 Ky. (3 A.K. Marsh.) 70, 75 (1820).
182. 11 Ky. (1 Litt.) 326 (1822).
183. id. at 328, 331-32.
184. Id. at 327, 331-32.
185. Id. at 334.
186. Id. at 335.
187. Id. at 343. Mills made clear in another case that he considered slavery contrary to,the general principles of liberty, which we all admire, but also emphasized that judges ought to decide cases,by the law as it is, and not as it ought to be.
188. FINKELMAN, supra note 17, at 192 (quoting Rankin v. Lydia, 9 Ky. (2 A.K. Marsh.) 467 (1820)).
189. Later Southern examples are abundant. For example, a Kentuckian argued: The only inquiry is, what constitutes citizenship, or, in other words, what is the true constitutional meaning of the word citizen? If the free negro be not a citizen, although he may be a subject, he is not embraced within this provision.In accordance with this principle, a citizen of the United States, going into any state of this union, carries with him the same right of protection, under the laws of the state, to which its own citizens are entitled. REPORT OF THE DEBATES & PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE STATE OF KENTUCKY 923 (Frankfort, A.G. Hodges 1849) (statement of Mr. Bullitt).
190. Similarly, in the debates about Nebraska, a senator from North Carolina observed:,[S]uppose these people were citizens of the United States, did not everybody know that if they were citizens of the United States, and had rights under the Constitution of the United States, which were withheld under this prohibition of the Missouri constitution, it was null and absolutely void? SPEECH OF THE HON. GEORGE E. BADGER, OF NORTH CAROLINA, IN THE UNITED STATES SENATE, FEBRUARY 16, 1854, ON THE NEBRASKA BILL 7 (Wash., Sentinel Office 1854).
191. Advertisement, 3 LIBERATOR (Bos.) 47 (1833).
192. PRUDENCE CRANDALL, supra note 57, at iii-iv. At a first trial, in 1833, the jury was dismissed for failing to agree on a verdict.
193. Id. at iv
194. WIECEK, supra note 81, at 163-64.
195. Crandall v. State, 10 Conn. 339, 348 (1834) (reversing judgment against Crandall because the information failed to aver that the school or the instructors were unlicensed).
196. Prudence Crandall, supra note 57, at 28.
197. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 675 (Bos., Hilliard, Gray & Co. 1833).
198. 11 Ky. (1 Litt.) 326, 338 (1822) (Mills, J., dissenting).
199. Id. at 342.
200. For example, the arguments on both sides can be observed in the prosecution of Prudence Crandall.
201. Crandall v. State, 10 Conn. 339 (1834). The State argued that,men of colour, were not citizens of the state because they,cannot vote.
202. id. at 351. Her lawyers then protested that,the right of voting is not the criterion of citizenship, explaining that,the one has no natural or necessary connextion with the other.
203. To support this, they recited the now conventional point that there were all sorts of instances,where persons are citizens and do not vote,: Formerly, property was a necessary qualification in Connecticut. Were none but persons of property citizens? Suppose a voter in Connecticut should lose his right of suffrage, by reason of criminal conduct, as by law he may do, does he cease to be a citizen? Does he become an alien? No female can vote, nor any minor; but are not females and minors citizens? If voting makes a citizen, what confusion! The same man in one state, is a full citizen; in another, half a citizen; in another a non-descript; in another, an alien. How absurd to create such distinctions in these states!
204. Id. For a slightly different but essentially similar account of these passages
205. Prudence Crandall, supra note 57, at 10. Recognizing the stereotypical character of much of these debates, a Southerner countered: Perhaps we shall here again be met with the miserable subterfuge, that the right of suffrage is not essential to citizenship, as in females and minors. But this.scarcely deserves a serious consideration. The civil disabilities resting upon females and minors, are general and impartial to all in like circumstances, black as well as white;.there is no political degradation.
206. GEORGE S. SAWYER, SOUTHERN INSTITUTES
207. OR, AN INQUIRY INTO THE ORIGIN AND EARLY PREVALENCE OF SLAVERY AND THE SLAVE-TRADE 300 (Phila., J. B. Lippincott & Co. 1859).
208. Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230). His statement of this right is interesting for what it omits. The right to travel associated with the Comity Clause was necessarily a right of ingress, residence, and egress-the first being of particular importance in debates about free blacks. Ingress, however, was precisely what Washington omitted, except to the extent it was implied by the others elements.
209. Id. He sold fifty of his slaves further south in 1821. WIECEK, supra note 81, at 126-27. And his views on the potential of blacks as fellow citizens are suggested by his membership to the American Colonization Society. Id.
210. infra note 246.
211. Surveying such views, Attorney General Edward Bates later explained:,[T]here is a very common error to the effect that the right to vote for public officers is one of the constituent elements of American citizenship.No error can be greater than this., Citizenship, 10 Op. Att'y Gen. 382, 384 (1862). In fact,there is no district in the nation in which a majority of the known and recognized citizens are not excluded by law from the right of suffrage.
212. Id. at 385. Among those excluded were,paupers, idiots, lunatics, and men convicted of infamous crimes, and, in some States, soldiers, all females and all minor males. Id.
213. See supra Part II.C-D.
214. 60 U.S. (19 How.) 393 (1857).
215. Id. at 397.
216. id. at 431-32.
217. DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 250-65 (1978)
218. Paul Finkelman, Scott v. Sandford: The Court's Most Dreadful Case and How It Changed History, 82 CHI.-KENT L. REV. 3 (2007).
219. Dred Scott, 60 U.S. (19 How.) at 403. Here and in the next quotation, note that Taney discussed rights as well as privileges and immunities of citizenship. The phrase about,the rights, privileges, and immunities of citizens of the United States, was familiar from cession treaties. In other words, it was a different sort of guarantee from a different context.
220. See infra Part IV.A. Nonetheless, Taney may have deliberately echoed the phrasing of cession treaties, for he was alluding not merely to the privileges and immunities of citizenship mentioned in the Comity Clause but also to other rights of citizenship under the U.S. Constitution, including the right to have the benefit of diversity jurisdiction. For these distinctions,
221. Infra text accompanying notes 155-56. Some other nineteenth-century writers also talked about rights, privileges, and immunities in connection with the Comity Clause, but probably less selfconsciously.
222. Dred Scott, 60 U.S. (19 How.) at 409, 411.
223. Supra text accompanying notes 95-101.
224. Dred Scott, 60 U.S. (19 How.) at 405.
225. Id. at 405-06.
226. Id. at 406.
227. Id. Taney's acceptance that national citizenship determined Comity Clause rights is noted by
228. Kaczorowski, supra note 8, at 886-87.
229. Dred Scott, 60 U.S. (19 How.) at 409.
230. For an early use of this argument, see supra text accompanying notes 99-101 regarding Amy v. Smith, 11 Ky. (1 Litt.) 326 (1822). Chief Justice Taney had earlier made the argument when he was Attorney General in the 1830s:,[E]ven when free, blacks were a,degraded class., Roger Taney, Unpublished Opinion of Attorney General Taney, quoted in
231. CARL BRENT SWISHER, ROGER B. TANEY 154 (1935). He concluded:,They were not looked upon as citizens by the contracting parties who formed the Constitution. They were evidently not supposed to be included by the term citizens.
232. Finkelman, supra note 122, at 32.
233. The argument itself was so degraded that Attorney General Bates dispatched it with mordant humor:,[I]t is said that African negroes are a degraded race, and that all who are tainted with that degradation are forever disqualified for the functions of citizenship. I can hardly comprehend the thought of the absolute incompatibility of degradation and citizenship. I thought that they often went together., Citizenship, 10 Op. Att'y Gen. 382, 398 (1862).
234. Incidentally, the constitutional significance of the trope about a degraded race raises a question about the role of law in shaping racial stereotypes. In particular, did the legal posture necessary to defend slavery in the courts contribute to a hardening in the denigration of blacks as racially inferior?
235. Dred Scott, 60 U.S. (19 How.) at 409.
236. Id. at 406. Taney raised this argument by question and implication rather than directly because, in another part of his opinion, he sought to disconnect voting and citizenship, observing that in some states,foreigners not naturalized are allowed to vote, which seemed to show that even when,the State may give the right to free negroes and mulattoes.that does not make them citizens of the State, and still less of the United States.
237. Id. at 422.
238. Id. at 576 (Curtis, J., dissenting).
239. See infra text accompanying note 144.
240. Dred Scott, 60 U.S. (19 How.) at 582-83.
241. Id. at 583.
242. Id. at 581.
243. Id. The Supreme Court repeated this point when, after the adoption of the Fourteenth Amendment, it held that a woman had no right under the Privileges or Immunities Clause to vote in federal elections. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874). Ironically, as fate would have it, the case came out of Missouri.
244. Dred Scott, 60 U.S. (19 How.) at 583.
245. Id. at 583-84.
246. See supra text accompanying note 138.
247. Dred Scott, 60 U.S. (19 How.) at 584. In effect, Curtis was reasserting Congress's 1821 resolution admitting Missouri to the Union. He recalled that Congress admitted Missouri on the condition that its constitution,shall never be construed to authorize the passage of any law.by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States.
248. Id. at 588 (internal quotation marks omitted). Justice Curtis acknowledged that,this legislative declaration, could not,confer or take away any privilege or immunity granted by the Constitution.
249. Id. At the same time, he observed,that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States. Id.
250. Senator Stephen A. Douglas, Kansas-The Mormons-Slavery, Delivered at Springfield, Illinois (June 12, 1857), in A POLITICAL TEXT-BOOK FOR 1860, at 154, 155 (N.Y., Tribune Ass'n 1860).
251. Abraham Lincoln, Speech at Springfield (June 17, 1858), in POLITICAL DEBATES BETWEEN ABRAHAM LINCOLN AND STEPHEN A. DOUGLAS 1, 1 (Cleveland, O.S. Hubbell & Co. 1895).
252. Id. at 3-4.
253. Id. at 4.
254. Senator Stephen Douglas, Speech on the Occasion of his Public Reception at Chicago (July 9, 1858), in POLITICAL DEBATES BETWEEN ABRAHAM LINCOLN AND STEPHEN A. DOUGLAS, supra note 148, at 8, 17.
255. Cong. Globe, 30th Cong., 1st Sess. app. at 903 (1848) (statement of Sen. Hunter of Virginia) (arguing that the U.S. Constitution's limits on states do not apply to territories and, more generally, that Congress has power to regulate the territories).
256. For example, in the Florida cession treaty, the federal government provided that the inhabitants would be,admitted to the enjoyment of all the privileges, rights and immunities of the Citizens of the United States., Treaty of Amity, Settlement and Limits Between the United States of America, and His Catholic Majesty (Adams-Onis Treaty), U.S.-Spain, art. 6, Feb. 22, 1821, 8 Stat. 252. In a similar manner, in the Louisiana cession treaty, the federal government provided that the inhabitants would be,admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all of the rights, advantages and immunities of citizens of the United States., Treaty Between the United States of America and the French Republic, U.S.-Fr., art. III, Apr. 30, 1803, 8 Stat. 200.v Lash, supra note 13, at 1285-87.
257. Attorney General Edward Bates noted that sometimes,the words rights, privileges, immunities are abusively used, as if they were synonymous. The word rights is generic, common, embracing whatever may be lawfully claimed. Privileges are special rights belonging to the individual or class, and not to the mass. Immunities are rights of exemption only, freedom from what otherwise would be a duty, obligation, or burden. Citizenship, 10 Op. Att'y Gen. 382, 407 (1862).
258. Curtis, Darling Privilege, supra note 11, at 266-68
259. Curtis, No State Shall Abridge, supra note 8, at 41-51.
260. Joel Tiffany, A TREATISE ON THE UNCONSTITUTIONALITY OF AMERICAN SLAVERY 57, 87 (Mnemosyne Publ'g Co., photo. reprint 1969) (1849). He did not, though, use the phrase,the privileges and immunities of citizens of the United States.
261. These rights, he explained, included habeas corpus, a republican form of government, protection against invasion and domestic violence, the right to bear arms, and the due process of law. Id. at 97, 107, 115, 117.
262. One review has been located thus far, a brief but positive notice in a Washington, D.C. paper. Review, 4 NAT'L ERA (D.C.) 131 (1850).
263. The incorporationist scholarship rarely, if ever, acknowledges this sort of distinction and therefore systematically overstates the strength of such evidence.
264. See supra text accompanying note 11.
265. Perfected Proceedings, 8 NAT'L ERA (D.C.) 119 (1854). Incidentally, Sumner could not rest content with Benjamin's answer, and he therefore reminded the Senate of his desire for an enforcement bill, which was the sort of demand that would later underlie demands for the Fourteenth Amendment's Privileges or Immunities Clause:
266. SUMNER: I am very glad that the Senator says it is entirely unconstitutional. I will then ask the Senator if he is ready, in his place, to introduce an act of Congress to carry out that provision of the Constitution to secure to the colored citizens of the North their rights in South Carolina and Louisiana? BENJAMIN: This is a very extraordinary method of answering a question. I have heard of the Yankee method of answering one question by asking another; but this is answering one by asking two. [Laughter.] Id. (brackets in original).
267. Additions to the Documentary History: Lydia Maria Child and Gov. Wise, 13 NAT'L ERA (D.C.) 184 (1859).
268. William C. Nell & Other Colored Citizens of Massachusetts, Rights of Colored Citizens, 29 LIBERATOR (Bos.) 11 (1859). Nell was a leader of the black community in Boston who organized, among other things, its campaign against segregated public schools.
269. PROCEEDINGS OF THE BLACK STATE CONVENTIONS, 1840-1865, at 106 n.12 (Philip S. Foner & George E. Walker eds., 1980).
270. William C. Nell, supra note 168, at 11.
271. Anniversary of the British West India Emancipation, Convention of the Colored Citizens of Massachusetts, 28 LIBERATOR (Bos.) 132 (1858).
272. Id. Another black convention, in Virginia, echoed this sort of demand at the end of the Civil War:
273. Massachusetts may with perfect propriety say to Virginia, No matter with what wrongs, for the purpose of sustaining a bloody and barbarous system, you outrage humanity in the persons of colored men born and reared upon your own soil, I demand of you by the sacred guaranty of your constitutional obligations, that the humblest of my citizens, when a sojourner in your territory, shall be secure in all the great fundamental rights of human nature.
274. Opinion of Judge Underwood on the Right of Excluding the Testimony of Colored Men from the Courts of Justice, N.Y. TRIB., Oct. 22, 1865, reprinted in 1 PROCEEDINGS OF THE BLACK NATIONAL AND STATE CONVENTIONS, 1865-1900, at 100 (Philip S. Foner & George E. Walker eds., 1986).
275. OR. CONST. of 1857, art. XVIII, § 4. This provision was to become part of the Constitution only if the people, when adopting the Constitution, voted against the presence of free blacks.
276. Id. It was added to propitiate those who argued that if the State did not allow slavery, it would be,overrun with free negroes.
277. George H. Williams, George H. Himes (Aug. 26, 1907), in THE OREGON CONSTITUTION AND PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION OF 1857, at 32, 33 (Charles Henry Carey ed., State Printing Dep't 1926).
278. Scholars have taken note of Bingham's speech but without recognizing that it took a familiar position against a familiar sort of threat, and they thereby assume that Bingham's defense of the privileges and immunities of citizens of the United States was his attempt to stake out a new sort of claim. MALTZ, supra note 81, at 37-38.
279. In fact, it was an old wine in a not entirely new bottle. Incidentally, Bingham's speech was reported in at least one black newspaper. Admission of Oregon, Speech of Hon. John A. Bingham, of Ohio, in the U.S. House of Representatives (Feb. 11, 1859), 13 NAT'L ERA (D.C.) 36 (1859).
280. Cong. Globe, 35th Cong., 2d Sess. 981, 983 (1859) (statement of Rep. John Bingham).
281. Id. at 984.
282. SAWYER, supra note 114, at 299. Sawyer was a New Englander who had long lived in Louisiana. He wrote this volume in 1855.
283. Id. at iii, v.
284. In arguments in 1860, on a writ of habeas against Southerners who had brought slaves into New York while in transit, one of the counsel for the slaves, William Evarts, noted:,It is claimed by the learned counsel for the appellants, that this should be construed as if it read: 'The citizens of each State shall be entitled to all the privileges and immunities of citizens of the United States-in the several States.', N.Y. COURT OF APPEALS, REPORT OF THE LEMMON SLAVE CASE: CONTAINING POINTS AND ARGUMENTS OF COUNSEL ON BOTH SIDES, AND OPINIONS OF ALL THE JUDGES 78 (N.Y., Horace Greeley & Co. 1860). To this, Evarts responded that,there is nothing in the condition of a citizen of the United States, which would warrant the suggestion, that there was any intention that he should carry into any State, social or political rights which citizens there did not enjoy.
285. Horace Dresser, Slavery and the Slave Trade, 43 U.S. DEMOCRATIC REV. 304, 308-320 (1859).
286. Curtis, NO STATE SHALL ABRIDGE, supra note 8, at 61.
287. Cong. Globe, 35th Cong., 2d Sess. 984 (1859) (statement of Rep. Bingham on Feb. 11, 1859).
288. A Bill to Declare and Protect All the Privileges and Immunities of Citizens of the United States in the Several States, H.R. 437, 39th Cong. § 1 (as reported by H. Comm. on the Judiciary, Apr. 2, 1866, Printers No. 116).
289. In one scholarly account, the Bill is mentioned in passing, but as a bill,to punish private invasions of basic rights., MALTZ, CIVIL RIGHTS, supra note 9, at 39 (citing CONG. GLOBE, 39th Cong., 1st Sess. 1293-94 (1866)). This is true of the enforcement provisions, but does not capture the main import of the Bill. For more on the Bill's provisions allowing enforcement against private action.
290. see infra note 198.
291. H.R. 437.
292. Civil Rights Act of 1866, ch. 31, 14 Stat. 27, 27-30.
293. U.S. CONST. amend. XIII, § 1.
294. Civil Rights Act of 1866, ch. 31.
295. William Blackstone, COMMENTARIES 1, 125. Religious dissenters had demanded equal civil rights to obtain equality not only as to natural liberty under civil law but also as to the privileges accorded the Anglican establishment. Blackstone, however, defended the Anglican establishment by flipping around the term, saying that it meant only the natural liberty enjoyed under civil laws. Id. For the shifting meaning of,civil rights,
296. Philip Hamburger, Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights, 1992 SUP. CT. REV. 295, 386-87.
297. Hamburger, supra note 194, at 374.
298. Civil Rights Act of 1866, ch. 31.
299. A Bill to Declare and Protect All the Privileges and Immunities of Citizens of the United States in the Several States, H.R. 437, 39th Cong. § 1 (as reported by H. Comm. on the Judiciary, Apr. 2, 1866, Printers No. 116).
300. Id. Note that the Bill's initial clause was framed as a guarantee of the freedom of citizens rather than as a prohibition on the states. On this account, the Bill's enforcement provisions could bar private interference with the right, without requiring state action. In constrast, the Fourteenth Amendment specified,No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States., The Amendment thereby made clear it was simply a prohibition on the states, with obvious implications for its enforcement.
301. Id. 2-5.
302. The next month, Representative James F. Wilson proposed a substitute bill. Amendment in the Nature of a Substitute to Bill H.R. 437, 39th Cong. (as reported by H. Comm. on the Judiciary, May 7, 1866). Wilson's bill came back to the House from the Judiciary Committee the following year. A Bill to Declare and Protect All the Privileges and Immunities of Citizens of the United States in the Several States, H.R. 1037, 39th Cong. (as reported by H. Comm. on the Judiciary, Jan. 23, 1867).
303. Incidentally, both iterations of Wilson's bill included a final paragraph stating:,That the enumeration of the privileges and immunities of citizenship in this act contained shall not be deemed a denial or abridgment of any other rights, privileges, or immunities which appertain to citizenship under the Constitution.
304. Id. § 12. In other words, Shellabarger's legislation about the Comity Clause,privileges and immunities, of free blacks was not to have adverse implications in the other context in which federal law protected privileges and immunities. To be specific, Shellabarger's bill responded to the needs of free blacks for privileges and immunities and it therefore concerned only Comity Clause rights. But it will be recalled that cession treaties protected the,privileges, rights and immunities, of citizens of the United States, which in that context meant federal rights in general. It therefore was necessary to prevent the narrow meaning assumed in the one context from affecting the broader meaning assumed in the other context.
305. CONG. GLOBE, 39th Cong., 1st Sess. app. at 293 (1866) (statement of Rep. Shellabarger on July 25, 1866).
306. See supra text accompanying notes 181-83.
307. CONG. GLOBE, 39th Cong., 1st Sess. app. at 293 (1866). Although,[of the United States], appears in the Globe, it obviously is not possible to discern whether Shellabarger indicated the brackets when speaking or inserted them when rewriting his speech, let alone whether the reporter or an editor did this.
308. A Bill to Declare and Protect All the Privileges and Immunities of Citizens of the United States in the Several States, H.R. 437, 39th Cong. (as reported by H. Comm. on the Judiciary, Printer's No. 116, Apr. 2, 1866).
309. Cong. Globe, 39th Cong., 1st Sess. app. at 293 (1866).
310. Id. By way of elaboration, Shellabarger quoted a Massachusetts case, Abbot V. Bayley, to the effect that,the privileges and immunities of 'the citizens of each State,' in every other State can, by virtue of this clause, only be applied in case of a removal from one State into another.
311. Id. (quoting Abbot, 23 Mass. (6 Pick.) 89, 91 (1827)). Indeed,[t]o conform the bill to this view of this constitutional provision, it was deemed best to limit it in accordance with that decision, and to make it secure to all the people those great international rights which are embraced in unrestrained and secure inter-State commerce, intercourse, travel, sojourn, and acquisition of abode., CONG. GLOBE, 39th Cong., 1st Sess. app. at 293 (1866).
312. The Bill's protection of Americans who traveled across state boundaries thus would be like the protection of persons who traveled across international borders. On this basis, Shellabarger again emphasized:,It only attempts to see to it that the citizens of the United States shall have what it is solemnly and expressly declared by their national Constitution they shall be 'entitled to in the several States.'
313. Id. at 294.
314. The earlier history of equal protection provisions reveals that,the equal protection of the laws, meant equal protection of the natural liberty secured by law.
315. Hamburger, supra note 194, at 299 (tracing the history of ideas of equal protection and how they differed from more general ideas of equality).
316. CONG. GLOBE, 39th Cong., 1st Sess. app. at 293 (1866).
317. JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION: 39TH CONGRESS, 1865-1867, at 60-61 (photo. reprint 2005) (Benjamin B. Kendrick ed., 1914) [hereinafter JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION].
318. Id. at 87.
319. Lash, supra note 13, at 1302 (,John Bingham had an epiphany-one that altered his original views of Article IV and that caused him to completely rewrite his proposed amendment.,).
320. H.R. Journal, 39th Cong., 1st Sess. 481 (1866).
321. The previous meeting of the Joint Committee had been March 5, 1866, and although there was a meeting on April 16, the sole object of that meeting was to hear from Senator Stewart of Nebraska. Accordingly, the next drafting meeting was April 21, when Bingham introduced the phrasing drawn from Shellabarger's bill. JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION, supra note 216, at 78, 81-82, 87.
322. As observed supra in note 198, Bingham's wording echoed the Bill's main principle, but not Shellabarger's attempt to justify enforcement in the absence of state action.
323. After Congress proposed the Fourteenth Amendment, some Southern governors attempted to substitute an alternative, part of which would have restored the Privileges or Immunities Clause to words that more closely followed the Comity Clause: that,the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several states. A Southern Proposal for a Fourteenth Amendment (Feb. 4, 1867), in 1 DOCUMENTARY HISTORY OF RECONSTRUCTION 238, 240 (Walter L. Fleming ed., 1950). This, however, merely repeated the phrasing that had failed to protect free blacks under the Comity Clause, and that had not justified congresional enforcement. In any case, the entire Southern substitute was politically doomed from the start.
324. U.S. CONST. amend. XIV, § 1. For the promptings from Senator Wade and the initial proposal from Senator Howard,
325. Cong. Globe, 39th Cong., 1st Sess. 2768 (1866).
326. Arguably, either the definition of citizenship or the Privileges or Immunities Clause might have sufficed to protect free blacks in their Comity Clause rights. The goal, however, was not merely to make such protection possible, but to secure it in a way that would preclude any further evasion. Congress therefore had good reason to adopt both provisions.
327. In this sense, the methodology of this Article is the opposite of that in most scholarship on the Privileges or Immunities Clause. Rather than delve deeply into debates that have seemed largely inconclusive, this Article concentrates on the prior context, which clarifies their meaning.
328. For a detailed and well-known survey of the views of congressmen
329. Fairman, Fourteenth Amendment, supra note 9. It is acknowledged, even by some scholars sympathetic to incorporation, that at least some congressmen assumed that the Privilege or Immunities Clause merely echoed the Comity Clause.
330. Thomas, supra note 8, at 1643 (discussing Rep. Hiram Price); Curtis, The Klan, supra note 8, at 1411-12 (discussing Sen. Trumbull, albeit in 1871).
331. JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION, supra note 216, at 61.
332. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham on Feb. 28, 1866).
333. Id. For Bingham's role in drafting the Privileges or Immunities Clause
334. JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION, supra note 216, at 60-61, 87.
335. Cong. Globe, 39th Cong., 1st Sess. 1090 (1866).
336. The Last Reported Amendment of the Constitution, BANGOR DAILY WHIG & COURIER, Mar. 2, 1866, at 1.
337. Cong. Globe, 39th Cong., 1st Sess. 1090 (1866).
338. The equal protection of the law was understood to mean the equal protection of natural rights protected by civil laws and of due process.
339. Hamburger, supra note 194, at 378.
340. Cong. Globe, 39th Cong., 1st Sess. 1090 (1866).
341. In 1859, when discussing the Oregon Constitution, Bingham had said:,I invite attention to the significant fact that natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this constitution guarantied by the broad and comprehensive word 'person,' as contradistinguished from the limited term citizen., CONG. GLOBE, 35th Cong., 2d Sess. 983 (1859) (statement of Rep. John Bingham). On this basis, after speaking of the rights of citizens under the U.S. Constitution to suffrage and office, he discussed,these wise and beneficent guarantees of political rights to the citizens of the United States, as such, and of natural rights to all persons, whether citizens or strangers.
342. Cong. Globe, 39th Cong., 1st Sess. 1090 (1866).
343. Id. at 1292.
344. Id. at 1089.
345. Id. at 2765 (statement of Sen. Howard on May 23, 1866).
346. Id. Elaborating this point, he speculated about,what are the privileges and immunities of citizens of each of the States in the several States, but he refused,to go at any length into that question at this time., Instead, he merely noted that the Supreme Court had not yet answered the question and that,we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years
347. This leads, incidentally, to the question of whether Howard recognized the implications of Washington's allusion to,fundamental principles, which was part of the passage Howard quoted. Washington spoke of,fundamental principles, in a case that did not directly concern slavery and, indeed, that accepted the right to travel, and his opinion thereby acquired respectability across sectional lines. It is at least possible that Howard recognized he was quoting a case that had once fortified the Southern position, for although it did this by including rights of suffrage within privileges and immunities, Howard was sufficiently radical that he may have welcomed the opportunity to suggest that blacks would enjoy voting rights when they moved to another state. In the end, however, Howard's view of Washington's opinion remains speculative.
348. supra text accompanying note 238.
349. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard).
350. Id. at 2765-66.
351. Id. at 2766.
352. Even Charles Fairman exclaims: Here at last is a clear statement that the new privileges and immunities clause is intended to incorporate the federal Bill of Rights. Fairman, Fourteenth Amendment, supra note 9, at 58. Fairman thinks that Howard, in this speech, demanded incorporation-although Fairman notes that the Senate and House do not seem to have agreed with Howard and that even Howard seems later to have taken a different view.
353. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866).
354. Id. at 2766.
355. Id. at 2765.
356. The difference was that whereas Bingham emphasized the role of equal protection, Howard spoke more generally about all of Section One.
357. CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866).
358. One might add that if the Amendment had been designed to incorporate the Bill of Rights, this would have been directly and clearly stated in the Amendment. Nearly a century ago, a learned scholar observed: If this had been the intention of the framers of the privileges and immunities clause it is strange that very clear and direct language did not occur to them. How easily it might have been said, the limitations imposed by the first eight amendments upon the central government are hereby extended to the States.
359. D.O. McGovney, Privileges or Immunities Clause, Fourteenth Amendment, 4 IOWA L. BULL. 219, 233 (1918)
360. Fairman, Fourteenth Amendment, supra note 9, at 82-83.
361. Amar casts doubt on Fairman's argument from silence on the ground that silence is not dispositive.
362. AMAR, supra note 4, at 197-200.
363. Indeed, silence is not dispositive, especially when considered on its own. But when one considers not only the silence in the framing and ratifying debates but also the absence of an underlying national controversy over incorporation, what was not said is at least very suggestive. Moreover, the larger point here about the silence is not that it shows anything by itself, but rather that, in conjunction with other evidence, it is a further indication of the need to focus on the context-in particular, the genealogy that led up to the Privileges or Immunities Clause.
364. See supra Part II.C-D.
365. CONG. GLOBE, 39th Cong., 1st Sess. 3041 (1866) (statement of Sen. Johnson on June 8, 1866). Reverdy Johnson tends to be cited as if his observation were merely that of a particularly distinguished Southern lawyer.
366. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1387, 1426 (1992). But in light of Johnson's role in Dred Scott, his comments need to be viewed more skeptically. For his part in Dred Scott
367. Finkelman, supra note 122, at 27.
368. CONG. GLOBE, 42d Cong., 1st Sess. app. at 84 (1871) (statement of Rep. Bingham). 267 For incorporationist scholarship that recognizes that the Blaine Amendment might matter
369. AMAR, supra note 4, at 254
370. CURTIS, NO STATE SHALL ABRIDGE, supra note 8, at 169-70
371. Lash, supra note 8, at 1145-50.
372. In focusing on the Blaine Amendment, however, these scholars' arguments miss the other proposed amendments, which began before Slaughter-House. They also miss the clear evidence that the movements behind these amendments took for granted that the First Amendment had not yet been applied to the states. This Part, incidentally, is largely based on PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 287-334 (2002).
373. HAMBURGER, supra note 267, at 201-02.
374. Id. at 218, 234-51.
375. Id. at 228, 234-35.
376. Id. at 229-30, 233 (noting how Protestant clergy gave respectability to nativist demands for separation of church and state)
377. id. at 234, 246-51+275-78 (regarding nativist and related advocacy of separation of church and state).
378. Id. at 201, 213-14.
379. This overlap was embodied in men such as Judge Hurlbut.
380. Id. at 247-48.
381. see also infra notes 278-83 and accompanying text.
382. HAMBURGER, supra note 266, at 289, 294-95.
383. Id. at 290, 294-95.
384. Id. at 297.
385. Incidentally, their demands for incorporation of the First Amendment are also important because religious rights have been the focus of some of the most interesting modern scholarship on incorporation. This scholarship suggests that the Fourteenth Amendment not only incorporated the Bill of Rights but also, at the same time, gave new meaning to some of its guarantees. In particular, the scholarship alleges that the Amendment introduced a right of religious exemption into the incorporated First Amendment rights.
386. AMAR, supra note 4, at 256-57
387. Lash, supra note 8, at 1117+1129-1156.
388. It is therefore revealing that the national movements that advocated incorporation focused on religious liberty. Rather than assume that the Fourteenth Amendment had already incorporated the First Amendment, nativists and secularists assumed that a further amendment was necessary for this purpose. And rather than seek a right of exemption, they sought to reconstruct the First Amendment toward separation of church and state.
389. HAMBURGER, supra note 267, at 436 n.112.
390. E.P. HURLBUT, A SECULAR VIEW OF RELIGION IN THE STATE AND THE BIBLE IN THE PUBLIC SCHOOLS (Albany, Joel Munsell 1870).
391. Id. at 5. Hurlbut was animated by fierce religious animosities. When explaining his amendment, Hurlbut rhetorically asked: But is not the proposed amendment calculated to abridge religious liberty?,
392. Id. at 22. He answered in the negative, explaining: There is a distinction to be taken between religious opinion and worship on the one hand, and organizations and practices in the name of religion on the other.
393. Rather than oppose religious liberty, he merely rejected religious organizations. The,theocracy, of such groups was,a fungus of religion, which,may be eradicated without hurting religion itself. Restraint of theocracy, is the way to religious health and freedom.
394. Id. at 23.
395. Toward the end of his pamphlet, Hurlbut focused on a broad range of Christianity and proposed another amendment of his own making: To the end that the functions of civil government may be exercised without interference in matters of religion; neither the United States, nor any state, territory, municipality, or any civil division of any state or territory, shall levy any tax, or make any gift, grant or appropriation for the support, or in aid of, any church, religious sect or denomination, or any school, seminary, or institution of learning, in which the faith or doctrines of any religious order or sect shall be taught or inculcated, or in which religious practices shall be observed; or for the support, or in aid of any religious charity or purpose, of any sect, order, or denomination whatsoever.
396. Id. at 54-55 (emphasis omitted).
397. Id. at 14.
398. Id. at 5.
399. EQUAL RIGHTS IN RELIGION: REPORT OF THE CENTENNIAL CONGRESS OF LIBERALS, AND ORGANIZATION OF THE NATIONAL LIBERAL LEAGUE, AT PHILADELPHIA, ON THE FOURTH OF JULY, 1876, at 12 (Bos., Nat'l Liberal League 1876).
400. Id. at 13 (quoting the 1874 proposal for the,Religious Freedom Amendment,). Attempting to fend off accusations of intolerance, the Liberals explained their position: But the proposition of this new Amendment is not made at all in the spirit of a bellicose partisanship: on the contrary it is made with the strongest conviction that consistency with democratic ideas is the absolute condition of a permanent republic; that this consistency must be found both in our national and State Constitutions; and that the only way to ensure it in our State Constitutions is to assimilate them to our national Constitution by virtue of some such provision as we now propose.
401. Id. at 16.
402. Id. at 114.
403. Id. at 114-15.
404. AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES: NON-SECTARIAN AND UNIVERSAL EDUCATION 12 (N.Y., Baker & Godwin 1876) (statement of Daniel Ullman). Another amendment provided:,2. 'The United States shall guarantee to every State in this Union, a republican form of government,' and an adequate system of free and universal unsectarian education.
405. Id. (emphasis omitted). For a similar, later proposal by the Junior Order of United American Mechanics,
406. M.D. LICHLITER, HISTORY OF THE JUNIOR ORDER UNITED AMERICAN MECHANICS 241 (1908).
407. 4 CONG. REC. 205 (1875)
408. see also 4 CONG. REC. 5189 (1876)
409. Upon being reported out of the Committee on the Judiciary on August 4, 1876, it passed in the House with modifications by a vote of 180 to 7. HERMAN AMES, THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES DURING THE FIRST CENTURY OF ITS HISTORY 277-78 (Burt Franklin 1970) (1896). In the Senate, the Judiciary Committee reported an amended version, which failed to receive a two-thirds majority, the vote being 28 for and 16 against.
410. Id. at 278.
411. In 1876, there were at least three other proposals in Congress. Representative O'Brien proposed, inter alia,No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof;.nor shall any religious test be required as a qualification for any office or public trust in any State, or under the United States., Joint Resolution Proposing an Amendment to the Constitution, H.R.J. Res. 36, 44th Cong. (1876) (as proposed on Jan. 17, 1876). Representative Williams proposed, inter alia,No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof., Joint Resolution Proposing an Amendment to the Constitution of the United States, H.R.J. Res. 44, 44th Cong. (1876) (as proposed on Jan. 18, 1876). Representative Lawrence proposed,No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof., Joint Resolution Proposing an Amendment to the Constitution, H.R.J Res. 163, 44th Cong. § 1 (1876) (as proposed on Aug. 8, 1876).
412. In 1878, Senator Edmunds proposed,No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State., Joint Resolution Proposing an Amendment to the Constitution of the United States, S.J. Res. 13, 45th Cong. (1878) (as proposed on Jan. 10, 1878).
413. HAMBURGER, supra note 267, at 338-39.
414. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
415. HURLBUT, supra note 278, at 14.
416. Lest it be thought this was merely the view of advocates of the amendments, it should be noted that it was also the assumption expressed in a professional account of the law of religious societies published in April 1873, just before the Slaughter-House Cases: Subject to the equal protection of the laws required by the National Constitution of every state for persons within it, there is no restriction upon the power of the states except such as may be found in their own constitutions and laws, as to the support by law of church or religious establishments. No state attempts now to support churches by taxation, nor is it probable that any such aid could, in the present state of public opinion, be received by law, even if the state constitutions did not prohibit it.
417. William Lawrence, The Law of Religious Societies and Church Corporations in Ohio, 21 AM. L. REG. 201, 208 (1873). For scholarly disagreement about how treatises after adoption of the Fourteenth Amendment viewed the possibility of incorporation
418. Wildenthal, supra note 18, at 170-255.
419. HAMBURGER, supra note 267, at 434-49 (showing how nativism popularized cultural assumptions about,American, liberty-assumptions that flattened out the difference between state and federal bills of rights and left much of the nation, including the Justices of the Supreme Court, open to the idea that the same principles of liberty applied at both the state and the federal level).
420. BARNETT, supra note 26, at 292.
421. Aynes, supra note 26, at 151 (quoting Barnett).
422. Amar's account of incorporation at least recognizes the verbal distinction but then strains to show that it was not a substantive distinction.
423. See supra note 4.
424. See supra quotations from Bingham and Howard in text accompanying notes 228 and 243.
425. In fact, Justice Miller had at least a rough understanding of the Privileges or Immunities Clause, as evident from his observation that,[i]ts sole purpose was to declare to the several States, that whatever those rights, as you gra[n]t or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction., Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1873).
426. In McDonald v. Chicago, Justice Thomas incorporates many of the incorporationist errors. 130 S. Ct. 3020 (2010) (Thomas, J., concurring in part and concurring in the judgment). He assumes that the text of the Privileges or Immunities Clause points to incorporation of the Bill of Rights, without explaining how this is compatible with the Fourteenth Amendment's distinction between the privileges or immunities of citizens and the rights of persons.
427. Id. at 3063. He focuses on the meaning of the words,privileges, and,immunities, without considering the narrower meaning of the phrase of which they were a part.
428. Id. at 3063-64. He relies on the guarantees of,privileges, rights and immunities, in cession treaties to understand the Privileges or Immunities Clause, without noticing that the guarantees in cession treaties employed a different phrase, in a different context, to convey a different meaning.
429. Id. At 3068-70. He quotes Bushrod Washington's opinion about fundamental rights in Corfield v. Coryell, without recognizing that this was a racist opinion that laid the foundation for Justice Taney's opinion in Dred Scott.
430. Id. at 3067. He relies on the familiar speeches by Bingham and Howard, without acknowledging the statements in the speeches that are incompatible with incorporation.
431. Id. at 3071-74. He relies on quotations to show incorporation, without considering that many of them are also compatible with the Comity Clause interpretation, and he argues from the 1866 Civil Rights Act and the Freedmens Act, without mentioning the relevant legislative proposal, Shellabarger's, which prompted the phrasing of the Privileges or Immunities Clause.
432. Id. at 3074-75. He argues that incorporation was a central and widespread demand on behalf of free blacks, without any evidence of a national campaign for incorporation in 1866 or earlier.
433. Id. at 3078-79. He relies on only scattered post-Amendment evidence (including some of dubious relevance) to reach strong conclusions about what,the ratifying public understood, without mentioning the national movements that sought incorporation of the First Amendment on the assumption that the Fourteenth had not accomplished this.
434. Id. at 3077. Above all, Justice Thomas does not even mention the half-century controversy about whether free blacks had the benefit of the Comity Clause-the dispute that led directly to the adoption of Privileges or Immunities Clause and that this clause was designed to resolve.
435. For some of these points and others
436. Nelson Lund, Two Faces of Judicial Restraint (or Are There More?) in McDonald v. Chicago, 30-44 (George Mason Univ. Law & Econ. Research Paper Series, 10-39, 2010), available at http://www.law.gmu.edu/assets/files/publications/working_papers/1039TwoF acesofJudicialRestraint20100812.pdf.