Lash and Gura on the Privileges or Immunities Clause

September 16, 2011 | By PACIFIC LEGAL FOUNDATION

Author: Timothy Sandefur

The latest issue of Engage has several interesting articles, including that by my colleague Joshua Thompson—and this exchange between Professor Kurt Lash and attorney Alan Gura, who argued and won the McDonald v. Chicago case. Their debate is over what rights, exactly, the Fourteenth Amendment’s Privileges or Immunities Clause protects.

Lash’s argument is that the Clause was meant only to require states to abide by the rights listed in the first eight Amendments to the Constitution. The argument is quite strained, not only because it focuses almost exclusively on inferences about the subjective thinking of a single Congressman, but also because it ignores the broader context of the Amendment’s writing and enactment. That Amendment was written by a group of people whose views about constitutionalism had long been excluded from the realm of officially respectable orthodoxy—that is, the anti-slavery constitutionalists, who (contrary to Lash’s statement) did indeed believe that the states were required to abide by the Bill of Rights, who doubted or rejected the decision in Barron v. Baltimore, and who believed, like Joel Tiffany, that the Privileges And Immunities Clause of Article IV (which Lash insists on misleadingly calling the “comity clause”) protected the liberty of all Americans. Liberty, that is—not just specific, named rights, but liberty, which simply is a broad swathe of unenumerated rights. These antislavery constitutionalists, beginning largely with John Quincy Adams and proceeding to such followers as Charles Sumner, William Seward, Abraham Lincoln, and many others, believed that American citizenship came first and foremost, above citizenship in a state, and that with that national citizenship came individual rights which no state could abridge. This they believed long before the Fourteenth Amendment—yet their views were systematically excluded from the legal community by pro-slavery or Doughface administrations and the pro-slavery Supreme Court. The ratification of the Fourteenth Amendment was thus not intended so much to change the constitutional structure but to reassert what the anti-slavery constitutionalists thought had always been constitutional law. If in doing so they chose imprecise or overly broad language, it’s hard to blame them for that.

Yet Gura, too, commits a significant error when he says that “substantive due process was largely unknown” at the time the Fourteenth Amendment was ratified. On the contrary, the concept of substantive due process was well known and almost universally accepted as legitimate by the legal community at the time that the Amendment was enacted. There might be some debate over whether James Madison’s generation knew about substantive due process, but there is really no serious debate that John Bingham’s colleagues had heard of it. I discuss these issues in greater depth in my article, Privileges, Immunities, And Substantive Due Process, which you can read here. But even Ryan C. Williams, with whom I disagree on other matters, acknowledges this.

There can be no serious question that the Privileges or Immunities Clause was enacted to protect a broad range of rights, not only those specific, positive grants in the Bill of Rights. Indeed, the Bill of Rights itself includes unenumerated rights—that’s what the Ninth Amendment is for. And “liberty”—a word that refers to an unbounded range of freedom rather than to any specific activity—is specifically enumerated in both the Fifth and Fourteenth Amendments. As Justice Field explained very soon after Slaughter-House was decided, the Fourteenth Amendment

was intended to justify legislation, extending the protection of the national government over the common rights of all citizens of the United States, and thus obviate objections to the legislation adopted for the protection of the emancipated race. It was intended to make it possible for all persons, which necessarily included those of every race and color, to live in peace and security wherever the jurisdiction of the nation reached. It therefore recognized, if it did not create, a national citizenship, and made all persons citizens except those who preferred to remain under the protection of a foreign government, and declared that their privileges and immunities, which embrace the fundamental rights belonging to citizens of all free governments, should not be abridged by any state. This national citizenship is primary, and not secondary. It clothes its possessor, or would do so if not shorn of its efficiency by [the Slaughter-House Cases], with the right, when his privileges and immunities are invaded by partial and discriminating legislation, to appeal from his state to his nation, and gives him the assurance that, for his protection, he can invoke the whole power of the government.