Legal Commentary

Historical accounts of the Privileges or Immunities Clause of the Fourteenth Amendment generally assume that the author of the text, John Bingham, based the Clause on Article IV of the original Constitution.  This view assumes that Bingham and the other Republican members of the Thirty-Ninth Congress embraced Justice Bushrod Washington?s opinion in Corfield v. Coryell as the authoritative statement on the meaning of Article IV.  Since Justice Washington read Article IV as protecting all ?fundamental? privileges and immunities, these scholars assume that Bingham and the Republicans must have understood Section One as somehow federalizing a broad category of fundamental common law rights originally protected under Article IV.  According to this view, the Supreme Court in The Slaughterhouse Cases wrongly ignored the Framers? intent by distinguishing Article IV privileges and immunities from Fourteenth Amendment privileges or immunities.

Historical evidence, however, suggests that almost every aspect of this commonly presented historical account is incorrect. 

John Bingham did not base the final version of the Fourteenth Amendment on Article IV, he never relied on Corfield during the framing debates, and he went out of his way to distinguish the rights protected under Section One from the rights protected under Article IV.  Here, for example, is John  Bingham describing Section One in a 1871 speech to the House:

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 or immunities of citizens of the United States, as contradistinguished from the citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.  . . .

Mr. Speaker, that decision in the fourth of Washington?s Circuit Reports [Corfield], to which my learned colleague has referred is only a construction of the second section, fourth article of the original Constitution, to wit, ?The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.? In that case, the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own. . . .

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, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?

Bingham could not have been clearer: ?[O]ther and different privileges and immunities? were protected by Section One than had been protected under Article IV. 

In a new paper to be published by the Georgetown Law Journal, I explore historical evidence which suggests that John Bingham, as well as Justice Miller in Slaughterhouse, correctly identified an antebellum distinction between the privileges and immunities of citizens in the United States (Article IV) and the privileges or immunities of citizens of the United States (Section One).  Justice Miller?s reading of the Privileges and Immunities Clause in Slaughterhouse not only mirrored the views of the man who drafted Section One, it also followed a well established strain of antebellum anti-slavery Republican thought.

Although there have been numerous historical investigations of the history of the Fourteenth Amendment, some of the most influential works were published at a time when original intentions originalism dominated the field of constitutional history.  For example, the famous debates between Charles Fairman, William Crosskey, and Raoul Berger generally focused on the intentions of the members of the Thirty-Ninth Congress.  As I have discussed in prior posts, most originalists today look for the original public meaning of constitutional texts.  This effort looks not to the particular intentions of individual Framers, but to the likely public understanding of words and phrases?the semantic content of words in the context in which they were adopted.  The members of the Thirty-Ninth Congress did not make up phrases like ?privileges or immunities of citizens of the United States??these words had a history in antebellum law. 

I will turn to that history in my next post.