I.
“Privileges” and “Immunities” in Antebellum America

The terms “privileges” and “immunities” evolved alongside the terms “rights” and “liberties,” and were put to the same varied use.  Throughout the late eighteenth and early nineteenth centuries, one finds countless examples of the terms “rights,” “advantages,” “liberties,” “privileges,” and “immunities” used interchangeably, and often at the same time. According to the 1765 Resolves of the Virginia House of Burgesses, for example, colonists were entitled to “all the Liberties, Privileges, Franchises, and Immunities, that have at any Time been held, enjoyed, and possessed, by the people of Great Britain,” and “all Liberties, Privileges, and Immunities . . . as if they had been abiding and born within the Realm of England.”¹ According to the Maryland General Court in 1797, the terms “[p]rivilege and immunity are synonymous, or nearly so.”² Dictionaries of the time also equated the terms.³  As far as their meaning is concerned, the most cursory review of the historical sources shows that the individual terms “privileges” and “immunities” were associated with everything from individual rights to corporate powers—indeed, the range of use is so broad that it is impossible to generalize from any particular appearance of either term.

 
II.
The Pairing of Privileges and Immunities

When the terms “privileges” or “immunities” were paired as part of a larger legal phrase, however, a more focused meaning begins to emerge.  For example, early American legal sources tended to use the paired terms “privileges and immunities” to mean a set of specially conferred rights, or “peculiar advantages and exemptions.”⁴ Antebellum legal documents, court cases, newspaper articles, and treatises repeatedly placed adjectives like “special,”⁵ “peculiar,”⁶ “exclusive,”⁷ and “particular” ⁸ in front of the paired terms “privileges and immunities” in order to highlight the unique nature of such conferred rights.  These “peculiar” rights might include natural rights or any other variety and combination of conferred liberties.  The paired terms did not refer to a defined set of rights, but rather indicated the existence of a unique set of liberties or advantages, the content of which differed depending on the context and the group at issue.

 
III.
“Privileges and Immunities of Citizens in the States”

Article IV provides an example of how the individual terms “privileges” and “immunities” took on a particular meaning when embedded in a broader legal phrase.  Known as the Comity Clause, Article IV Section 2 declares, “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”⁹  Today, the most well known antebellum decision regarding the Comity Clause is Corfield v. Coryell.  Decades before Corfield, however, state courts had established a consensus understanding of the Clause that would remain stable for the remainder of the nineteenth century.  Cases like Campbell v. Morris¹⁰ and Livingston v. Van Ingen¹¹ read the Comity Clause as simply providing sojourning citizens equal access to a limited set of state-conferred rights.  Legal commentators of the day, such as St. George Tucker¹² and Chancellor James Kent adopted the same reading.¹³

When Justice Bushrod Washington decided Corfield he followed the same approach: visiting citizens from other states must be granted equal access to a limited set of rights.  According to Justice Washington, this limited set of rights involved only “fundamental” rights traditionally protected by the states—a set of state-conferred rights that did not include the right of out of state citizens to abscond with New Jersey oysters. Justice Washington’s decision was not controversial at the time; for decades, Corfield was cited as simply one of many decisions limiting the scope of Article IV privileges and immunities to a limited set of state-conferred rights.  Later antebellum judicial opinions that cited Corfield treated the case as following the same reasoning as Campbell and Livingston. In fact, the vast majority of antebellum cases discussing Article IV privileges and immunities between the Founding and the Civil War read the Comity Clause as referring to a limited set of state-conferred rights.  This remarkably stable reading of the Comity Clause was unaffected by the debates over slavery, with high profile examples occurring immediately before and immediately after the Civil War.  Although the historical record is not completely unanimous, cases like Campbell, Livingston and Corfield were the most cited antebellum discussions of the Comity Clause, and their reasoning dominated judicial and scholarly discussion of Article IV.

 
IV.
“The Rights, Advantages, and Immunities of United States Citizens”: Article III of the Louisiana Cession Act

Unlike the state-conferred privileges and immunities of Article IV, the privileges and immunities of national citizenship were linked to federal sources of law.  Discussions of federal rights were most often discussed in the context of United States treaties that promised the inhabitants of newly acquired territory that, once they were fully admitted into the Union, they would enjoy all of the privileges and immunities of United States citizens.  The Treaty of Purchase Between the United States and the French Republic of 1803 (Louisiana Cession Act), for example, presents one of the earliest and most consistently referred to examples of national rights in antebellum America.  According to Article III of the Act:

The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.¹⁴

Newspapers described the efforts that resulted in Article III as an attempt to provide the inhabitants of the territory “all the immunities & privileges of citizens of the United States.”¹⁵  According to members of Congress, Article III provided for “the privileges of citizens of the United States,”¹⁶ and later political tracts explained that the phrase “rights, advantages, and immunities” in the Louisiana Cession Act “undoubtedly means those privileges that are common to all the citizens of this republic.”¹⁷  The language of Article III of the Cession Act adopted the common language of international treaties, and it clearly influenced later American treaties involving territorial cession.

One of the most extensive antebellum discussions of the Louisiana Cession Act and the privileges and immunities of United States citizens occurred during the debates over the admission of Missouri and whether to ban slavery in the state as a condition of admission. During these debates, the opponents and proponents of slavery traced out the positions that dominated the increasingly bitter sectional debate over the next four decades.  Because Missouri had been carved out of the original Louisiana grant, slave owners argued that the Cession Act protected their right as citizens of the United States to carry slaves—their “property”—into the new state.  In response, free state advocates argued that the rights protected under Article III of the Louisiana Cession Act were federal rights as opposed to state-conferred rights like slavery.  Article III of the Cession Act, wrote Daniel Webster, protected only federal rights and “cannot be referred to rights, advantages and immunities derived exclusively from the State governments, for these do not depend on the federal Constitution.”¹⁸  Writing to the people of Illinois, the pamphleteer Aristides asked, “if it were possible to consider slavery as a right, an advantage, or an immunity, with what propriety could it be classed among the rights, advantages, and immunities of citizens of the United States, when more than one half of those citizens do not enjoy this pretended right, advantage, or immunity?”¹⁹ According to a report of the abolitionist Delaware Society, “[i]n the character of citizens of the United States, as members of the federal compact, slaves cannot be held.  They can be held only by citizens of some particular States, deriving their power solely from the State government.  On this point of distinction between citizens of the United States, and citizens of particular States, your committee can perceive no ground for contrariety of opinion.”²⁰

The basic approach of the free-state advocates was to distinguish state-conferred rights from federal rights, for only the latter was protected under the Louisiana Cession Act.  “Any citizen who enjoys a right which another citizen in the United States does not enjoy,” argued New Hampshire Senator David Morill, “acquires that right from some other source than the constitution of the United States.”²¹ “If it were the right of a citizen of the United States, as such, to hold [slaves],” wrote “Philadelphian” Robert Walsh, “then they might be legally held in New York or Pennsylvania, as Georgia; since a federal right could not be impaired by the laws of any member of the confederacy.”²² According to Joseph Blunt, writing under the pseudonym Marcus, Article III of the Cession Act referred only to “those privileges that are common to all the citizens of this republic, not those depending upon state laws.”²³  Finally, in his Memorial to Congress, Daniel Webster explained that:

[t]he rights, advantages and immunities here spoken of [in Article III] must, from the very force of the terms of the clause, be such as are recognized or communicated by the Constitution of the United States; such as are common to all citizens, and are uniform throughout the United States.²⁴

Both sides in the Missouri debate distinguished the national rights and immunities protected under the Cession Act from the state-conferred rights, privileges, and immunities protected under the Comity Clause of Article IV.  According to Daniel Webster’s Memorial, Article IV only “applies to the case of the removal of a citizen of one State to another State; and in such a case it secures to the migrating citizen all the privileges and immunities of citizens in the State to which he removes.”²⁵  The alternative, argued Webster, would be a disaster.  If Article IV “gives to the citizens of each State all the privileges and immunities of the citizens of every other State, at the same time and under all circumstances,” then slave-holding states would be able to force slavery into every state in the Union.²⁶ Webster’s Memorial is just one example of an antebellum distinction between Article IV privileges and immunities of citizens in the several states and the privileges and immunities of citizens of the United States.  It is, however, an especially potent one. Daniel Webster’s Memorial was republished in 1854 as part of a pamphlet discussing the Nebraska Question.²⁷  It was published again in 1857 as part of a collection of famous American speeches.²⁸ In the Thirty-ninth Congress, John Bingham repeatedly and expressly relied upon the constitutional and political theory of Daniel Webster—Bingham’s self-professed hero- in explaining and defending Section One of the Fourteenth Amendment.

 
V.
Conclusion

The second sentence of Section One announces that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”²⁹  Countless scholars have poured over the debates of the Thirty-Ninth Congress seeking clues to what the framers believed they were doing when they added this language to the federal Constitution.  Most have concluded that the Republican members of the Reconstruction Congress sought to nationalize the common law state-conferred rights of Article IV. Mention of “privileges and immunities” in both Article IV and Section One has been enough for some to claim that the text of Section One itself explicitly establishes a link between the Privileges and Immunities Clause and the Privileges or Immunities Clause.  Justice Miller’s failure, or refusal, to grasp this seemingly obvious textual link seems to justify treating his opinion as among the worst ever produced by the Supreme Court and as one of the Court’s precedents most deserving of being overruled.  Certainly a host of constitutional scholars have long argued this is the case.

The historical record, however, calls into question this long assumed flaw in Slaughterhouse.  The evidence briefly sketched in this essay and presented in full in the accompanying article appears to support Justice Miller’s argument that Article IV and Section One protected two entirely different sets of privileges and immunities.  As of Reconstruction, the jurisprudence of Article IV was remarkably stable and reflected a broadly held consensus that the Clause protected a limited set of state-conferred rights. The privileges and immunities of citizens of the United States had stable jurisprudential roots every bit as deep as Article IV.  Beginning with the Louisiana Cession Act of 1803, the phrase “rights, advantages, and immunities of citizens of the United States” was understood to refer to the federal privileges and immunities of citizens of the United States—rights conferred by the Constitution itself and “common to all” who shared such citizenship.  More, it was the advocates of freedom, men like Rufus King and Daniel Webster, who insisted that these federal rights were wholly separate and distinct from the state-conferred rights of Article IV.

It appears then that Justice Miller’s distinction between Article IV Privileges and Immunities and Section One Privileges or Immunities reflects a distinction clearly identifiable in antebellum jurisprudence.  This fact has not been recognized in prior scholarship on The Slaughterhouse Cases or in regard to the original understanding of the Fourteenth Amendment.  At the very least, such evidence suggests a need for renewed investigation of the debates of the Thirty-Ninth Congress in order to determine whether the distinction played any role in the drafting of Section One and whether the distinction informed public understanding of the Privileges or Immunities Clause. 

I will explore these particular issues in a subsequent article.  For now, it seems appropriate to close with a quote from at least one member of the Thirty-Ninth Congress who embraced the antebellum distinction between the state-conferred rights of Article IV and the federally-conferred rights of citizens of the United States. In 1871, John Bingham explained to the House of Representatives his understanding of the Privileges or Immunities Clause—a provision that he had drafted himself:

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 and immunities of citizens of the United States, as contradistinguished from 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 Court 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?³⁰

Bingham could not have been clearer: The Privileges or Immunities Clause of Section One protected “other and different privileges and immunities” than those protected under Article IV.  The rights of the Comity Clause involved rights that states had bestowed upon their own citizens.  The rights of the Privileges or Immunities Clause, on the other hand, involved rights listed in the federal Constitution, such as those found in the first eight articles of Amendment—the Bill of Rights. Although the Comity Clause and the Privileges or Immunities Clause use the common terms “privileges” and “immunities,” Bingham believed that these terms took on different meanings and referred to different sets of rights, depending on their use in a broader legal term of art.  If the public understanding of the Privileges or Immunities Clause tracked Bingham’s understanding, then scholars have been wrong to try and equate the Clause with Justice Washington’s list of “fundamental” state-conferred rights.  Instead, the original understanding of the Clause may have been quite close to that proposed decades ago by Justice Hugo Black—the Privileges or Immunities of the citizens of the United States must be found within the four corners of the Constitution, and not in the unenumerated rights of state common law.

Acknowledgments:

Copyright © 2010 Georgetown Law Journal
Kurt T. Lash is Alumni Distinguished Professor of Law, University of Illinois College of Law

The full Article from which this Essay is derived reexamines the soundness of this doctrine in light of factual and doctrinal developments since it was adopted in 1892, and introduces a number of arguments against the doctrine. This Essay presents a shortened version of two of the Article’s key arguments: (1) that EBD amounts to an impermissible delegation of judicial and lawmaking powers to the Speaker of the House and President of the Senate and (2) that EBD is inextricably linked to the traditional English concept of parliamentary supremacy and is therefore incompatible with the U.S. Constitution.

 
I.
The Doctrine as an Impermissible Delegation of Judicial Authority

EBD requires complete judicial deference to the determination of the Speaker of the House and the President of the Senate that a statute has been validly enacted in compliance with the Constitution. The practical result, therefore, is that the Supreme Court has de facto relinquished its power to interpret and enforce the constitutional provisions of lawmaking and its authority to determine the validity of legislation. The Court ceded these judicial powers not to Congress as a whole, but to the exclusive and final authority of the legislative officers of Congress.

The question of whether a bill has been properly enacted in compliance with the Constitution inevitably raises questions of constitutional interpretation and questions of fact. The questions of what exactly are the procedural requirements set forth in Article I and what constitutes compliance with these requirements are undeniably questions of legal interpretation rather than questions of fact. The problem is that EBD takes the authority to answer these two questions away from the courts and places it exclusively in the hands of the Speaker of the House and the President of the Senate. The result is first an abdication of the courts’ authority to interpret the Constitution and to enforce it according to the judicial understanding of what the Constitution means.  But the greater malady is that EBD designates the legislative officers as the only interpreters and enforcers of the lawmaking provisions of the Constitution. In essence, it is the practical equivalent of a doctrine that would require courts to accept as conclusive the presiding officers’ attestation that an Act does not violate the Bill of Rights.

 
II.
The Doctrine as an Impermissible Delegation of Lawmaking Authority

EBD can also be seen as enabling an impermissible delegation of Congress’s lawmaking authority to the presiding officers. By treating any bill signed by the presiding officers and the President as “law,” and designating the presiding officers as the sole judges of the validity of laws, EBD allows, in effect, the creation of “law” through Congress’s enrollment procedure, rather than by Congress as a whole through the procedure mandated by Article I, Section 7.

The problem here is less that EBD allows an abduction of Congress’s lawmaking power by the legislative officers, but rather that it permits Congress to abdicate some of its lawmaking authority to the legislative officers, in order to circumvent the procedure set out in Article I, Section 7.

Imagine, for example, that Congress is interested in passing an extensive piece of legislation and that the House and Senate are able to agree on all of its provisions, save one specific issue. The Constitution provides the chambers of Congress with only two options: either agree on an identical form of the bill or fail to pass the bill at all. In certain situations, the choice between succumbing to the other chamber and sacrificing the entire bill presents a real dilemma. Both options might carry heavy costs, such as ceding important policy preferences, antagonizing voters, losing prestige, and so forth. In such situations, EBD provides, in effect, a tempting third option: instead of choosing between these two evils (and taking responsibility for this choice), each chamber can pass its own version and effectively delegate the authority to choose between them to the legislative officers. This scenario is less imaginary than one might assume. According to some accounts, a similar scenario occurred in the enactment of the Deficit Reduction Act of 2005.

The Supreme Court has repeatedly held (in other contexts) that “Congress may not delegate the power to legislate to its own agents or to its own Members”² and that “Congress may not exercise its fundamental power to formulate national policy by delegating that power . . . to an individual agent of the Congress such as the Speaker of the House of Representatives . . . .”³ These decisions clearly perceived “legislative self-delegation” by Congress to its own components as more objectionable than conventional delegations of lawmaking power to administrative agencies.⁴ A major reason for this distinction is that “[i]f Congress were free to delegate its policymaking authority . . . to one of its agents, it would be able to evade ‘the carefully crafted restraints spelled out in the Constitution.’”⁵ This concern is particularly applicable here. Although a bill that does not satisfy the requirements of Article I does not become a law, under EBD, the signatures of the presiding officers effectively turn invalid law into valid law. Consequently, EBD recognizes and permits, in effect, an alternative lawmaking procedure, which is inconsistent with the Court’s constant avowals that Congress “must follow the procedures mandated by Article I of the Constitution—through passage by both houses and presentment to the President” in order to legislate.⁶

 
III.
The Doctrine and Legislative Supremacy

According to the traditional English view of parliamentary supremacy (or sovereignty), Parliament, as the legal sovereign, is the source of all law, and therefore, there can be no legal limitations on its legislative competence, and no person or body may override or set aside its legislation. The orthodox English view considers lawmaking as a sovereign prerogative and the legislative process as a sphere of unfettered omnipotence. Following the orthodox view, English courts interpreted the principle of parliamentary supremacy as banning courts from questioning the validity of Parliament’s legislation on any ground, including defects in the enactment process. Indeed, in England, where EBD originated, this doctrine is viewed as “inextricably related to . . . parliamentary sovereignty.”⁷ In the United States, EBD was never explicitly linked to legislative supremacy. However, this section argues that EBD amounts to acceptance of the English concept of parliamentary supremacy.

EBD effectively insulates the legislative process from judicial review and, consequently, establishes Congress’s unfettered power to control this process. This doctrine has properly been characterized as “a prophylactic rule, which blocks all inquiry into the alleged procedural flaws in a bill’s adoption”⁸ and as “insulating legislative enactments from challenges based on faulty enactment procedures.”⁹ The doctrine represents, therefore, a judgment that the legislature may operate in the legislative process without any judicial oversight at all and, consequently, without any meaningful legal (as opposed to political) constraints.

Furthermore, EBD requires courts to shut their eyes even to the most obvious and egregious violations of the Constitution’s lawmaking requirements and “to hold statutes valid which they and everybody know [sic] were never legally enacted.”¹⁰ The doctrine compels courts to hold statutes valid even when it is clear beyond doubt and openly admitted that the statute was enacted in blatant violation of the constitutional requirements for lawmaking. Thus, the practical result of EBD is non-enforcement of the procedural lawmaking requirements of the Constitution. Consequently, these constitutional requirements become “binding only upon the legislative conscience.”¹¹ This permits habitual and flagrant disregard of constitutional requirements in the legislative process. Some state supreme courts have even argued that the consequence of EBD is that “the wholesome restrictions which the Constitution imposes on legislative and executive action become a dead letter . . . .”¹²

Hence, EBD amounts to a judicial declaration that the enactment process is completely beyond the reach of courts, that courts may not question the validity of legislation, and that the lawmaking provisions of the Constitution are (judicially) non-enforceable. This position comes very close to the orthodox English view of parliamentary supremacy, according to which there are no legal limitations on the legislative process and courts may not question the validity of legislation. By viewing the enactment process as a special sphere of governmental activity that is completely immune from judicial review, EBD creates an “island of legislative supremacy” in the United States.

 
IV.
The Doctrine’s Incongruity with the U.S. Constitution

Legislative sovereignty and the idea of a supreme, omnipotent legislature are, of course, entirely foreign to the U.S. Constitution. It is widely recognized that the Framers of the U.S. Constitution rejected the traditional idea that sovereignty is lodged in parliament, or in any other governmental body, in favor of the idea that “in America, the only legitimate sovereign was the People, who could delegate different powers to different governments in any way.”¹³ It is likewise acknowledged as “axiomatic” that the Framers rejected the idea of a supreme, omnipotent legislature in favor of the principle of limited government and the idea of a legislature that is constrained by a supreme Constitution which is prior and superior to the powers of the legislature.¹⁴ Marbury v. Madison has famously taken the additional step of holding that the principles of constitutional supremacy and constitutional restraint of the legislature require judicial enforcement of the Constitution.¹⁵ Academic criticism of Marbury notwithstanding, constitutional supremacy and judicial review are as central and well-settled in America as parliamentary sovereignty was (until recently) in the United Kingdom.

In treating lawmaking as a sovereign prerogative and the legislative process as a sphere of unfettered power immune from judicial review, EBD deviates from Marbury and from the fundamental and well-settled principles of American constitutionalism. In fact, the words of Chief Justice Marshall in Marbury rejecting the view that “courts must close their eyes on the Constitution” are strikingly applicable to EBD, as well:

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.¹⁶

Since the 1930s, several courts in constitutional democracies concluded that EBD is inconsistent with constitutional supremacy and unjustified in legal systems that have a written constitution. In common-law countries, such as Australia and South Africa, courts held that:

The principle that the courts may not examine the way in which the law-making process has been performed has no application where a legislature is established under or governed by an instrument which prescribes that laws . . . may only be passed if the legislature is constituted or exercises its functions in a particular manner . . . .¹⁷

Several civil-law constitutional democracies, such as Germany and Spain, also rejected their equivalent doctrines (the interna corporis acta doctrine) as part of their “transition from the model of parliamentary supremacy to the model of constitutional supremacy,” and as “a natural outgrowth of the explicit rejection of the English model [of] parliamentary supremacy.”¹⁸

Even the English judges acknowledged that EBD is justified in England by the fact that in “the United Kingdom there is no governing instrument which prescribes the law-making powers and the forms which are essential to those powers;”¹⁹ however, in legal systems where such an instrument exists, “a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law,”²⁰ and courts, in turn, have a “duty to see that the Constitution is not infringed and to preserve it inviolate.”²¹

The English origins of EBD; the contemporary discussions of this doctrine in England and the Commonwealth; and the development of judicial review of the legislative process in common-law and civil-law countries all seem to yield a similar conclusion: EBD appears to be contingent upon the orthodox view of legislative supremacy. Judicial review of the legislative process is considered to be a natural consequence of rejecting this view.

 
Conclusion

EBD has far-reaching ramifications that have been largely overlooked in existing discussions. The doctrine amounts to an impermissible delegation of power to the legislative officers of Congress and embodies a concept of legislative supremacy that was clearly rejected by the Framers of the Constitution. Indeed, the English courts based EBD on the fact that they “sit . . . as servants of the Queen and the [supreme] legislature.”²² In the United States, where both the Court and the legislature are “servants” of the supreme Constitution, EBD is inappropriate.

Acknowledgments:

Copyright © 2009 Georgetown Law Journal.

Ittai Bar-Siman-Tov is Associate-in-Law, Morris Fellow and Fulbright Scholar at Columbia Law School.

This Legal Workshop Editorial is based on the following full-length Article: Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?: Rethinking the “Enrolled Bill” Doctrine. 97 GEO. L.J. 323 (2009).