Legal Commentary

Hamburger?s ?Rough Draft? on Privileges or Immunities

By Randy Barnett

As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a ?rough draft? of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious attention before its argument can be fully evaluated. Yet it is posted now with a reference to the McDonald case in its very first paragraph.

I have only had a chance to peruse it quickly and have some initial impressions. The article focuses on antislavery uses of the Privileges and Immunities Clause of Article IV (The Commity Clause), as do I in my new paper, Whence Comes Section One: The Abolitionist Origins of the Fourteenth Amendment. In the latest version of my paper posted earlier this week, I make it clear that this Clause was typically invoked by antislavery lawyers and activists on behalf of free blacks. Hamburger correctly stresses this point as well. So far so good. [For the record, unlike Hamburger, I make no claim that my paper has any bearing on the McDonald case and I deny the evidence I examine is dispositive of the original meaning of Section One.]

But Hamburger?s thesis is that all the Privileges or Immunities Clause of Section One accomplishes is to provide federal enforcement of the Commity Clause AND NO MORE. By the way, he seems not to have noted that this aspect of his thesis is completely inconsistent with Justice Miller?s opinion in The Slaughter-House Cases which consigns the protection of these fundamental natural or civil rights to the states free of federal protection. Hamburger is not very precise about what he is claiming to be the meaning of the Privileges or Immunities Clause, but the thrust of his argument about the Commity Clause establishes that the Slaughter-House Cases were wrongly decided and the dissenters were right.

Yet, while Hamburger is right that the Privileges or Immunities Clause provided federal enforcement of the Commity Clause, there is considerable evidence it did more. In his rough draft, Hamburger ignores most of this evidence to focus solely on statements by Bingham and Howard. According to the rough draft, readers are not allowed to quote or cite this paper, so I won?t be able to provide direct quotes. (Another reason why posting a rough draft at this time is unfortunate.) Moreover, I do not have the space or time for a comprehensive treatment of all his evidence or claims. Two examples will have to suffice for now.

On February 28th, 1866, John Bingham gave a speech in which he asserted that the privileges or immunities of citizens of the United States included those protected by Article IV and also those in the Bill of Rights. The problem was a lack of federal power to enforce these rights against the states. In this speech, Bingham cited both Barron v. Baltimore and Livingston v. Moore as judicial barriers. Many readers will know that these two cases concerned the federal enforcement of the Bill of Rights, not the Commity Clause. Having shown that ?these decisions of your courts . . . ruled the existing amendments are not applicable to and do not bind the States,? he quoted Daniel Webster for the proposition that these rights nevertheless apply to the states, though are solely dependent on the voluntary compliance of state officials who take an oath to uphold the Constitution rather than any federal power of enforcement. Bingham then asked: ?Why, I ask, should not the ?injunctions and prohibitions,? addressed by the people in the Constitution to the States and the Legislature of States, be enforced by the people through the proposed amendment? By the decisions read the people are without remedy?? Bingham, therefore, proposed the following constitutional amendment:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several states equal protection in the rights of life liberty and property.

Hamburger claims that all of Bingham?s references to the protection of the Bill of Rights in this speech are clearly to the equal protection clause of this proposal and not to the privileges or immunities clause, and that Bingham somehow was referring to the equal protection of state bills of rights. I find this claim counter-intuitive if not bizarre; it is certainly under-defended given its centrality to the debate over whether ?privileges or immunites? included the personal guarantees in the Bill of Rights in addition to those fundamental natural or civil rights to which the Commity Clause was taken to refer. How Hamburger?s nondiscrimination-in-state-bills-of-rights theory would relate to Bingham?s invocation of Barron and Livingston goes unexplained since he omits the fact that Bingham cited these cases in this pivitol discussion of Bingham?s speech.

How then does Hamburger treat Senator Jacob Howard?s widely reported speech to the Senate on May 23, 1866, in which he says:

?To these privileges and immunities [in the Commity Clause which Corfield v. Coryell described] whatever they may be?for they are not and cannot be fully defined in their entire extent and precise nature?to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, . . . and the right to keep and to bear arms . . . . [H]ere 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. . . .

Hamburger again bizarrely concludes that Howard was here referring to nondiscrimination of state bills of rights under the Equal Protection Clause.

There is much in this 79 page paper with which I agree and, given my interest in abolitionist constitutional thought, I found it interesting to read. But Hamburger is actually rather fuzzy about what he thinks the Privileges or Immunities Clause did mean. And with respect to its central thesis?that the privileges or immunities of citizens of the United States did not ALSO include the personal guarantees contained in the Bill of Rights, he simply fails to establish his claim or even attempt to examine all the evidence that cuts against his thesis. Instead, he is content to rely on his antislavery narrative about the Commity Clause and his implausible reading of these two speeches by Bingham and Howard.

So everyone needs to bear in mind that this is a self-described ?rough draft? which is not to be cited or quoted. Therefor, despite its coincidental timing, nor should it be given any weight in the Supreme Court?s deliberations in McDonald until it has been carefully vetted by other scholars who are familiar with all the evidence of original meaning. My guess is that Philip Hamburger himself, who I have known for many years, would agree.

Full post as published by The Volokh Conspiracy on February 27, 2010 (boomark / email).