Editor’s Note: This article previously appeared in the Federalist Society Review.
Kurt Lash’s review of my new book cleverly reiterates his own position, which has become common wisdom among originalists: that the privilege or immunity clause of the Fourteenth Amendment contains the Bill of Rights against States. Unfortunately, the review is less adept at conveying the argument against this view that I want to advance in my new book. Lash claims that by largely ignoring the stories and testimony of John Bingham and Jacob Howard, I have produced something that resembles “Hamlet Without the Prince”. That can be if Hamlet is what we read. The central argument of my book, however, is that the key to understanding the Fourteenth Amendment is the legal history of its terms in advance, not the legislative history, in which Bingham and Howard are major players. I contend Lash and many other contemporary scholars of the 14th Amendment read the wrong piece all along.
Although Professor Lash gives the impression that my book is primarily concerned with the legislation of the Thirty-ninth Congress and the response to the Black Codes in the South, the book itself does much more. It is a legal history of the great decrees of the first section of the Fourteenth Amendment: due process, equal protection of the law, and the privileges and immunities of citizenship. The book therefore begins in its first three chapters with an examination of the legal sources of the antebellum explaining the meaning of these terms, from Magna Charta in 1215 to the Petition of Right in 1628 to Blackstone’s Commentaries and finally the Antebellum State and Federal Court cases.
The book then goes into advance the history of the constitutional struggles that the authors of the Fourteenth Amendment faced: the ongoing debate about whether free Blacks were “of the United States” so that they were entitled to participation under Article IV ; the widespread private violence against abolitionists, blacks, and unionists, understood as a refusal to protect the law; and the infamous post-civil war Black Codes in the South, which systematically denied newly liberated men and women the same civil rights enjoyed by white citizens.
It then describes the legislation of the Thirty-ninth Congress – the Civil Rights Act and the Second Freedmen Office Act, and the Privilege or Immunity Act of 1866 – that would have resolved these constitutional debates in advance in favor of liberty and equality. The constitutionality of these laws was doubtful, however, and in any event the members of the thirty-ninth Congress wanted their requirements to be enshrined in the constitution of the country itself so that future democratic majorities in Congress would not undo their noble work.
The terms of the fourteenth amendment – if they mean what I claim, including the fact that the privilege or immunity clause is an anti-discrimination provision on civil rights under national law – constitutionalize these acts, resolving the pre-insurgency and post-insurgency constitutional struggles and keep them to the same meanings they had in the Antebellum Law.
While the fourteenth amendment enforces the Bill of Rights against states, the privilege or immunity clause has nothing to do with it.
Lash pays little attention to this persistent argument and, as mentioned earlier, gives high priority to the testimony of John Bingham in the House of Representatives and Jacob Howard in the Senate. My book, admittedly, casually confirms that Howard appears to have specifically considered including the Bill of Rights in his Senate speech introducing the amendment. But that’s all that speaks for the inclusion thesis. A single statement that no one gave a definite answer to.
As for John Bingham’s statements about the enforcement of the Bill of Rights in the States, I am relying on the historical work of others who have argued that “Bill of Rights” was not an art form for the first eight amendments to the Constitution until the twentieth century . But I am also relying on Bingham himself, who defined the Bill of Rights as something different from the first eight amendments. At the center of the relevant discussion in my book, I quote Bingham: “[G]Entlemen recognize the power of the Bill of Rights provisions that citizens of the United States have all the privileges and immunities of citizens of the United States in the various states and that no one is killed. Freedom or property without proper legal process. “
Bingham’s concern was therefore to enforce the comity clause in Article IV of the Constitution and the due process clause of the fifth amendment. The problem is that the fourteenth amendment enforced both provisions against states without the privilege or immunity clause. The citizenship clause made blacks citizens of the United States, and as such they were automatically entitled to Community law under Article IV. And the fourteenth amendment has its own due process clause. The fourteenth amendment enforces the Bill of Rights, as understood by Bingham, or at least the relevant provisions against states; But the privilege or immunity clause has nothing to do with it.
Lash’s view ignores two other critical issues. Aside from the statements of Bingham and Howard, seventeen members of the thirty-ninth Congress linked the privilege or immunity clause to the constitutionalization of the Civil Rights Act of 1866. This act declared persons born in the United States to be “citizens of the United States” and provided that that “such citizens” – that is, such citizens of the United States – had the same civil rights under state law to buy, sue, and hold property as white citizens enjoyed. The privilege or immunity clause, of course, follows a similar declaration of citizenship and then reads: “No state may enact or enforce laws that limit the privileges or immunities of citizens of the United States.” In his veto message, Andrew Johnson stated that the privileges of citizens of the United States United States that were listed in the bill – the right to contract, sue, own property, and so on. Neither has anything to do with the modern Bill of Rights.
Second, if Lash’s view of the privilege or immunity clause is correct, then that clause does not constitutionalize civil rights law. Lash has therefore argued in other papers that either the equal treatment clause or, more likely in his view, the due process clause should constitutionalize the civil rights law and demand equality of natural rights. The problem is that this view is in direct contradiction to hundreds of years of antebellum evidence that respects the legal meanings of “due legal process” and “protection of the law”. A proper process does not define people’s rights at all. These rights could be terribly unequal. However, due process means that regardless of legal rights, only the government can deprive one of them, and only through “due process” – known laws and established procedures. The “protection of the law” was the flip side: it was the legal protection that the government gave against private interference with one’s rights, including mob rule. Neither due process nor the protection of the law required equality of other civil rights.
Although, as I explain in a footnote, legislative history supports my view, my book largely avoids reliance on legislative history, which is one of Lash’s main complaints. But the reason I am following a legal history as opposed to a narrative about the debates in the thirty-ninth Congress is precisely because it is so easy to pick favorable statements from that legislative history in support of one’s position. There is simply no reason to believe that Bingham and Howard are in the majority. A much safer guide would include the antebellum legal material, the history of the constitutional battles, and the public actions of the thirty-ninth Congress. This is the guide to the fourteenth amendment in my new book.