Legal Commentary

Most historical scholarship on the Privileges or Immunities Clause ignores or minimizes the fact that the Thirty-Ninth Congress debated two very different versions of the Clause.  Scholars recognize, of course, that the precise wording of Section One of the Fourteenth Amendment changed shape as the debates went along, but the alteration is treated as if it had little, if any, substantive significance.  Thus, comments made by John Bingham and other members regarding the initial draft of the Privileges or Immunities Clause are treated as if they illustrate the members? understanding of the final draft of the Privileges or Immunities Clause.

As I explain in a new paper, this is a mistake.  The texts of the first and second drafts are significantly different?so much so, that comments made in regard to the first cannot be assumed to apply to the second.

Those scholars who have addressed the changed language of Section One, such as Akhil Amar, have explained the change as reflecting a desire to follow the drafting advice of John Marshall in Barron v. Baltimore and add language expressly binding the states.  This, Amar explains, is why Bingham added the words ?no state shall? to the second draft of Section One.  Although Amar is right about the addition of ?no state shall,? this is only one of the changes made in the second and final draft.  The most significant change involved the abandonment of the language of Article IV.   

Prior to the debates, Bingham believed that Article IV ?privileges and immunities? included liberties expressly enumerated in the Bill of Rights, such as the rights listed in the Fifth Amendment.  According to Bingham?s initial understanding, the Comity Clause of Article IV ought to be read as if it contained an ?ellipsis,? thus protecting ?the privileges and immunities [of citizens of the United States] in the several states.?  In fact, during the debates over the initial draft, Bingham went so far as to claim that Article IV was part of the Bill of Rights.  Bingham was so certain about this ?ellipsis? reading of the Comity Clause of Article IV that he used the exact language of Article IV in his initial draft of the Fourteenth 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 the privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5^th Amendment?) [parenthesis in Cong. Globe].

According to Bingham, this amendment would allow the federal government to enforce the Bill of Rights against the states?and nothing else.  His proposal, Bingham explained, ?hath this effect.  Nothing more.?

The problem was, Bingham?s reading of Article IV was almost completely idiosyncratic?he was the only member of the Thirty-Ninth Congress who claimed that the Comity Clause of Article IV bound the states to protect the Bill of Rights.  Although some radical Republicans believed that Article IV authorized broad national protection of substantive individual rights, most members believed that Article IV did nothing more than provide sojourning citizens equal access to a limited set of state-conferred rights.  Most of all, the moderate Republicans strongly opposed the efforts by radical Republicans to nationalize all civil rights in the states.  Not surprisingly, these members rejected Bingham?s reading of Article IV as protecting national rights, and they cited reams of antebellum cases and constitutional treatises which refuted Bingham?s interpretation of the Comity Clause.  Probably most wounding to Bingham, even those members who claimed to support Bingham?s effort rejected his understanding of Article IV.  Giles Hotchkiss, for example, agreed with what he thought was Bingham?s limited goal of protecting the equal rights of citizens in the states, but he believed that Bingham?s first draft granted too much discretion to Congress to define the scope of equal rights.   

Bingham, of course, was trying to do much more than protect equal rights?he insisted throughout the debates that his efforts were directed at forcing the states to follow the substantive liberties listed in Bill of Rights.  His first draft of the Fourteenth Amendment, however, used the language of Article IV?and few members besides Bingham and the Radical Republicans read that language as protecting substantive national rights.  Worse, the Radical reading of Article IV would allow federal control of all civil rights in the states, not just rights listed in the first eight amendments?a result Bingham opposed as much as most moderate and conservative Republicans (this is one of the reasons why Bingham refused to support the Civil Rights Act of 1866).

The overwhelmingly negative response of his colleagues soon convinced Bingham that he had made a mistake in basing his initial draft on the language of Article IV.  As soon as Hotchkiss sat down, Bingham rose and announced his decision to withdraw the first draft of the Fourteenth Amendment.  Weeks later, Bingham returned with a very different text.  This second draft abandoned the language of Article IV and instead adopted the language of federal rights traditionally found in United States treaties: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

In my next post, I?ll present Bingham?s explanation of his second and final draft of the Privileges or Immunities Clause?and why this reading would likely be welcomed by a majority of the current Supreme Court.