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[Kurt Lash, guest-blogging] Does the Fourteenth Amendment protect unenumerated rights?


Prior posts in this series explored the history of the Privileges or Immunities Clause.  My final two posts turn to the question of Fourteenth Amendment theory.

One of the most important and vexing questions in constitutional law involves whether states are required to protect rights beyond those actually listed in the federal Constitution.  Although the Supreme Court occasionally identifies and enforces unenumerated rights under the Fourteenth Amendment’s Due Process Clause, most scholars agree this is an ahistorical and unpersuasive reading of the text.  The most likely textual vehicle for unenumerated Fourteenth Amendment rights is the Privileges or Immunities Clause. To date, however, scholars remain deeply divided regarding the nature and scope of the “privileges or immunities of citizens of the United States.”

Currently, there are primarily three competing views of the Privileges or Immunities Clause.  One group of scholars insist that that Privileges or Immunities Clause does not incorporate the Bill of Rights but instead closely tracks Article IV’s Comity Clause and provides nothing more than a degree of equal protection (the Equal Protection-only reading).  A second group agrees that the Clause tracks the Comity Clause, but insists that state-secured rights once afforded equal protection under cases like Corfield v. Coryell have been transformed by the Fourteenth Amendment into substantive unenumerated rights.  This second group believes that the Privileges or Immunities Clause both incorporates the Bill of Rights and protects certain “fundamental” unenumerated rights (the Fundamental Rights reading).  A third (and, to date, much smaller) group follows an idea originally proposed by Justice Hugo Black, and maintains that the Privileges or Immunities Clause protects only those rights actually listed in the federal Constitution (the Enumerated Rights reading).

Of these three possible readings of the Privileges or Immunities Clause, the Equal Protection-only reading seems weakest in terms of the original understanding. As explained in the third and fourth posts in this series, the historical evidence strongly suggests that the public originally understood that the Fourteenth Amendment’s Privileges or Immunities Clause would require states to protect constitutionally enumerated rights.  The Clause used the language of national treaties which had a history of being read to protect enumerated rights, its framers intended it to protect enumerated rights, the Clause was presented to Congress as protecting enumerated rights, and the public debated the Clause with the express understanding that it would protect enumerated rights.

But what of the Fundamental Rights reading? Even if the public understood that protected privileges or immunities included rights listed in the Constitution, this does not necessarily mean they believed these rights were the only rights protected by the Fourteenth Amendment.  The antebellum Comity Clause decision Corfield v. Coryell referred to all manner of “fundamental” state-secured civil rights, including “the right to acquire and possess property of every kind, and to pursue and obtain happiness.”  We also know the debates of the 39th Congress included multiple references to Corfield, especially during the debates regarding the Civil Rights Act of 1866 — debates that took place around the same time as the debates on the Fourteenth Amendment.  John Bingham himself used the language of the Comity Clause in his first draft of the Fourteenth Amendment, and Jacob Howard expressly listed the rights of the Comity Clause as falling within the protection of the Privileges or Immunities Clause.  Doesn’t all of this evidence strongly suggest the Privileges or Immunities Clause protected both enumerated and unenumerated “Corfieldian” fundamental civil rights?

In fact, the above evidence viewed in its historical context points away from the Fundamental Rights reading. The reason why Corfield was the subject of so much discussion in the 39th Congress was due to a short-lived dispute regarding the proper understanding of the case.  Radical Republicans initially tried to use a broad unenumerated rights reading of Corfield and the Comity Clause to justify congressional regulation of all civil rights in the states.  Moderate and conservative members responded by pointing to abundant antebellum case law that interpreted the Comity Clause as merely requiring equal access to a limited set of state-secured rights.  The response was so overwhelming that Radical Republicans ultimately conceded the issue.  Even the term “civil rights” was removed from the Civil Rights Act lest the law be interpreted as authorizing federal regulation of the content of civil rights in the States.  Even if Radical Republicans were willing to abandon the last vestiges of federalism, their more moderate colleagues were not.

Although John Bingham used the language of the Comity Clause in his first draft of the Fourteenth Amendment, this was due to his original belief that the Clause, properly interpreted, obligated the states to enforce the federal Bill of Rights.  Bingham never once referred to Corfield during the debates of the 39th Congress and he opposed efforts to federalize the subject of civil rights in the States. According to Bingham, his first draft sought only “to enforce the Bill of Rights as it stands in the Constitution today.  It ‘hath that extent — no more.’”

However, when Bingham’s moderate and conservative colleagues saw the language of the Comity Clause, they assumed Bingham’s proposal did nothing more than authorize federal enforcement of the equal protection principles traditionally associated with the Comity Clause.  This was not at all what Bingham intended and, once he realized his initial draft would not be read as protecting enumerated national rights, he withdrew his own proposal.  Weeks later, Bingham returned with a second draft.  This second and final version abandoned the language of the Comity Clause and instead used the language of national treaties — language historically linked to the protection of enumerated constitutional rights.

It is important to note, however, that enumerated constitutional rights include the Comity Clause as well as rights listed in the first eight amendments (and others as well, including the right of habeas corpus).  Accordingly, when Jacob Howard presented Bingham’s second draft to the Senate, he referred to the enumerated protections of the Comity Clause as well as the rights listed in the first eight amendments as examples of privileges and immunities of citizens of the United States.  As Howard explained,

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts.

Fundamental rights scholars believe that Howard’s reference to Comity Clause rights reflects his belief that the Privileges or Immunities Clause transformed the state-secured rights granted equal protection under the Comity Clause into a set of substantive national rights enforceable by both Congress and the Courts.  But there is nothing in Howard’s speech that suggests a transformation of the Comity Clause.  He simply includes the protections of the Comity Clause as one of the “immunities, privileges, rights, thus guarantied by the Constitution or recognized by it.”  The inclusion was important, since a commonly perceived problem under the original Constitution was a lack of federal power to enforce the equal protection principles of the Comity Clause.  The Fourteenth Amendment remedied this by protecting the enumerated rights of American citizens in Section One and granting federal power to enforce the same in Section Five.

As they had made clear time and again during the debates of the 39th Congress, moderate and conservative Republicans understood the Comity Clause as providing nothing more than a degree of equal protection.  This is how they would have understood Howard’s reference to the rights of the Comity Clause as protected privileges and immunities.  This is certainly how the law was understood in 1866: courts before, during and after the Civil War enforced an equal protection reading of the Comity Clause. In short, Jacob Howard was not transforming the Comity Clause, he was assuring his colleagues that its equal protection principles were now enforceable against the states along with every other enumerated right.

For their part, Radical Republicans were disappointed with the moderate nature of the Fourteenth Amendment, but they recognized that nothing more could be accomplished without greater Republican representation in Congress (numbers they would get after the fall elections).  Although the Fourteenth Amendment represented a dramatic expansion of American freedom, the Amendment remained a moderate proposal by moderate Republicans.

In my initial post, I quoted Ohio Supreme Court Judge John Day from one of the earliest cases to interpret the Privileges or Immunities Clause.  I do so again, not because the case serves as necessary evidence, but simply to illustrate how closely early judicial interpretation followed the Enumerated Rights meaning of the Clause:

The language of the clause, … taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment. (Garnes v. McCann, Ohio Sup. Ct. 1871.)

The great 19th century decision interpreting the Privileges or Immunities Clause, of course, is The Slaughterhouse Cases.  As I will discuss in my next and final post, the majority in Slaughterhouse shared the same approach as Judge Day.

Next: Slaughterhouse and the Ceiling and Floor of the Privileges or Immunities Clause.



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