[Kurt Lash, guest-blogging] Distinguishing Article IV ‘privileges and immunities’ from Fourteenth Amendment ‘privileges or immunities’

May 6, 2014
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In early January of 1867, President Andrew Johnson made one last desperate attempt to stop the ratification of the Privileges or Immunities Clause.  In place of the current proposal to protect the “privileges or immunities of citizens of the United States,” Johnson offered an alternative amendment that protected the “privileges and immunities of citizens of the several states.”  In effect, Johnson proposed removing language that echoed national treaties and replacing it with language echoing Article IV’s Comity Clause. These two sets of “privileges and immunities” are not the same.  Understanding how they differ sheds significant light on the original meaning of the Privileges or Immunities Clause.

Antebellum treaties commonly referred to the rights of citizens of the United States.  The Louisiana Cession Act of 1803, for example, protected the “rights, advantages and immunities of citizens of the United States.”  The Alaska Cession Act, adopted by the same Congress that adopted the Fourteenth Amendment, used the same language.

As described by Daniel Webster, “[t]he rights, advantages and immunities here spoken of [in the Louisiana Cession Act] must, from the very force of the terms of the clause, be such as are recognized or communicated by the Constitution of the United States.”  Antebellum federal documents described the Cession Act’s language as protecting “the privileges and immunities of citizens of the United States” including the right of the people “peaceably to assemble and to petition the government for the redress of grievances.”  The “privileges and immunities” of national citizenship secured in the Louisiana and Alaska treaties, in other words, involved those rights secured by the federal Constitution, such as those listed in the First Amendment.

By adopting the language of national treaties, the proposed Fourteenth Amendment’s Privileges or Immunities Clause would require states to protect rights “recognized or communicated by the Constitution of the United States.”  This would include, for example, constitutionally enumerated rights such as those listed in the Bill of Rights.  This is how Republicans explained the amendment to Congress, and this is how both advocates and opponents understood the proposed amendment during the election debates of 1866 (more on this in my next post).

Johnson was having none of it.  He had fought the amendment from the moment it was sent to the states for ratification, declaring to anyone who would listen that the amendment unjustifiably interfered with matters best left to state control.  When it became clear that some kind of amendment would be adopted, Johnson gathered with his advisers and drafted an alternative provision that protected the “privileges and immunities of citizens of the several states.”  Johnson’s alternative echoed the language of the Comity Clause of Article IV.  If adopted, it would have a far less intrusive impact on the states.

Antebellum courts had long interpreted the Comity Clause as requiring the states to provide visiting citizens equal access to a limited set of state-secured rights.  According to the well-known antebellum case, Corfield v. Coryell, the privileges and immunities of citizens in the several states included all “fundamental” state-secured rights such as “the right to acquire and possess property of every kind, and to pursue and obtain happiness.”  The Comity Clause did not give anyone an absolute right to “obtain happiness,” but simply required states to provide visitors the same “fundamental” rights they chose to provide to their own citizens.  It was an equal protection clause.

By adopting the language of the Comity Clause, Johnson’s alternative amendment relieved states from having to follow the federal Bill of Rights.  Instead of requiring states to protect everyone’s freedom of speech, Johnson’s provision only required states to provide visitors the same speech rights it bestowed on its own citizens.  In the southern states, of course, that amounted to very little freedom of speech indeed.

Johnson’s proposed alternative Privileges and Immunities Clause went nowhere.  Instead, Congress ultimately secured the ratification of the Privileges or Immunities Clause.  Johnson’s attempt, however, illustrates the need to distinguish the privileges and immunities of state citizenship from the privileges and immunities of national citizenship. Andrew Johnson appreciated the distinction. So did the man who actually drafted the Privileges or Immunities Clause.  As Rep. John Bingham (R-Ohio) explained to his colleagues in 1871,

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States…. Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article.

Of course, whatever Bingham’s (or Johnson’s) views of the Privileges or Immunities Clause, the more important question is whether the public that debated and ratified the Fourteenth Amendment shared Bingham’s understanding of the rights of American citizenship.  In my new book, I present abundant historical evidence suggesting that they did.  In my next post, I will explore some of this evidence.

Next: The New Orleans Riot of 1866 and the public understanding of American privileges or immunities

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