The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment

Kurt T. Lash University of Illinois College of Law

 

Kurt T. Lash

The current debates over the incorporation of the Second Amendment have reignited interest in the historical understanding of the Privileges or Immunities Clause of the Fourteenth Amendment.  The Supreme Court’s history-laden analysis of the Second Amendment in District of Columbia v. Heller1 signaled the Court’s openness to an originalist understanding of the Bill of Rights.  Not surprisingly, the Court’s decision to hear McDonald v. Chicago2 and consider whether to extend the right recognized in Heller against the states triggered an avalanche of briefs (both principle and amici) that explore the history behind the Privileges or Immunities Clause and its relationship to the original Bill of Rights.

It was something of a disappointment, therefore, when the majority in McDonald declined the plaintiffs’ invitation to rely on the Privileges or Immunities Clause and instead followed its traditional substantive due process analysis in deciding that the Second Amendment ought to be treated as a fundamental liberty.  Even if a disappointment, though, the Court’s avoidance of the Clause was not really a surprise.  

In their briefs, the petitioners had argued that the Privileges or Immunities Clause not only incorporated the Second Amendment, but also protected all fundamental natural rights—whether enumerated in the text of the Constitution or not.3  This was met with a rather high degree of skepticism at oral argument.  When pressed by Justice Ginsberg to define the rights protected by the Clause, Alan Gura declared that “it’s impossible to give a full list of unenumerated rights that might be protected by the Privileges or Immunities Clause.”4  Mr. Gura’s blithe refusal to suggest even the existence of a limiting principle prompted ridicule by other members of the Court5 and probably guaranteed the ultimate decision would not invoke Privileges or Immunities Clause, if only to avoid opening a pandora’s box of unenumerated rights.

In the extended article upon which this essay is based, The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment, I argue that there is a more plausible, and more limited, reading of the Privileges or Immunities Clause than that pressed by the Petitioners in McDonald.  The historical evidence strongly suggests that John Bingham, the man who drafted the Privileges or Immunities Clause, understood his amendment as protecting only those substantive rights expressly enumerated in the Constitution, in particular the first eight amendments to the Constitution.  This view justifies the Supreme Court’s doctrine of incorporation (including the incorporation of the Second Amendment), but rejects any reading that opens the door to a limitless list of unenumerated natural rights.

 
I.
John Bingham

There are two dominant views of the man who drafted the Privileges or Immunities Clause, Ohio Representative John Bingham.  Anti-incorporationist scholars tend to disparage Bingham as an inconsistent buffoon.  Charles Fairman in the 1940s is an early example of this negative portrayal, but you can still find this in fairly recent work by scholars like John Harrison.6  The general idea is that Bingham’s seemingly inconsistent and just plain quirky remarks about the Bill of Rights and the Fourteenth Amendment disqualify him as a reliable witness regarding the original meaning of the Amendment.

The pro-incorporationist view, on the other hand, treats Bingham as a kind of latter day James Madison.   Starting with William Crosskey and continuing through the work of scholars like Michael Kent Curtis and Akhil Amar, this reading of Bingham downplays his inconsistent statements, or ignores them altogether and focuses on his statements regarding the need to protect the rights listed in the first eight amendments to the Constitution.7

In my article, John Bingham and the Second Draft of the Fourteenth Amendment, I argue that neither portrayal gives us an accurate picture of John Bingham and his role in the development of the Fourteenth Amendment.  Pro-incorporationists are correct that Bingham never waivered in his desire to require the state to respect the Bill of Rights.  They are wrong, however, to ignore or downplay Bingham’s inconsistencies.  It is simply a fact that Bingham made radically inconsistent statements regarding the meaning of Article IV and its relationship to his proposed Fourteenth Amendment.  Anti-incoporationists, however, are wrong to suggest these inconsistencies reveal muddleheaded thinking.  Instead, I believe the evidence suggests that the debates over John Bingham’s first draft of the Fourteenth Amendment caused him to change his mind about Article IV and its relationship to the Bill of Rights.  His seemingly inconsistent statements were made in regard to his second draft.  Rather than reflecting inconsistency, these later statements actually reflect Bingham’s new and far more plausible understanding of how to draft an amendment that would protect constitutionally enumerated rights against state action.

 
II.
Bingham’s First Draft

In early February of 1866, the Joint Committee on Reconstruction adopted John Bingham’s first 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 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 (5th Amendment).8

As noted in Journal of the Joint Committee (the notations are reproduced above), the wording of this first draft was taken from the Privileges and Immunities Clause of Article IV, Section 2—the so-called Comity Clause9—and the Fifth Amendment to the Constitution.

In a speech before the House of Representatives, Bingham explained that he used the language of Article IV because the Comity Clause, properly understood, bound the states to enforce the Bill of Rights, and had done so from the earliest days of the Constitution.  It was only because states had failed to live up to this responsibility that Bingham proposed an amendment which would grant Congress the power to enforce the “privileges and immunities” of Article IV against state action—privileges and immunities which Bingham believed included the liberties listed in the Bill of Rights.10

This was an exceedingly odd argument.  As students of the Constitution already know, the original Bill of Rights bound only the federal government, not the states.  This was the famous holding of Chief Justice John Marshall in Barron v. Baltimore (1833).  No one had ever before suggested that Article IV actually bound the states to protect the Bill of Rights.  Bingham arrived at his conclusion about the language of Article IV and the Bill of Rights by way of a rather idiosyncratic rendering of the Comity Clause.   According to Bingham, the Comity Clause should be read as if it contained an “ellipsis”: “The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (applying the ellipsis “of the United States”) in the several States.”11  By adding the language of the “ellipsis,” Bingham could argue that the “privileges and immunities” of Article IV were privileges and immunities of “citizens of the United States” (not merely the rights of “citizens in the several states”) and these national rights included all those rights expressly listed in the people’s national charter, the Constitution.  Bingham went so far as to argue that Article IV itself was part of the Bill of Rights.12  Finally, because his amendment authorized only the enforcement of rights expressly listed in the original Constitution, Bingham argued that his proposed amendment took nothing from the States that belonged to them under the original Constitution.  As Bingham put it,

The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It hath that extent—no more.13

Unfortunately for Bingham, no one else in the Thirty-Ninth Congress shared his idiosyncratic reading of Article IV.  In fact, by using the language of Article IV, he opened the door to interpretations that he very much opposed.  Radical Republicans had long called for a broad reading of the Comity Clause of Article IV as a basis for federal control of all civil rights in the states. These members of the Thirty-Ninth Congress regularly cited the antebellum circuit court case, Corfield v. Coryell and Justice Bushrod Washington’s reference in that opinion to “fundamental” privileges and immunities.14  If one followed the radical reading of Article IV (and Corfield), Bingham’s draft would allow the federal government complete control over all “fundamental” civil rights in the states—an unlimited catalogue of unenumerated natural rights.

Conservative Republicans, on the other hand, had a very different view of Article IV—and thus a very different view of Bingham’s first draft of the Fourteenth Amendment.  The conservatives viewed Article IV as doing nothing more than providing traveling citizens equal access to a limited set of state-conferred rights.  As one might expect, this group strongly objected to the radicals’ broad interpretation of Corfield and Article IV.  While they were willing to require the states to equally enforce state law, they resisted efforts to nationalize the Bill of Rights.  They were willing to support Bingham’s proposal only because they understood his language as doing nothing more than following the traditional understanding of Article IV and simply providing an added degree of protection against discriminatory application of state law.

Bingham, of course, disagreed with both the radical and conservative readings of his proposed amendment.  He opposed the radicals’ call to federalize the subject of civil rights in the states.  On the other hand, he also wanted to do much more than simply enforce the equality principles of the Comity Clause.  Unfortunately, by using the language of Article IV, Bingham almost guaranteed that his intentions would be misconstrued.  Faced with equally unacceptable readings of his text from both friend and foe, Bingham soon realized he had made a mistake and he voluntarily withdrew his amendment.

 
III.
Bingham’s Second Draft

A month later, the Joint Committee produced a second draft of the Fourteenth Amendment, once again drafted by John Bingham.  In this second draft, Bingham replaced the language of Article IV (“privileges and immunities of citizens in the several states”) with language protecting “the privileges or immunities of citizens of the United States.”  This new language (which Bingham had earlier tried to add to Article IV as an “ellipsis”) echoed the language commonly found in United States treaties.  From the 1803 treaty, which added the Louisiana Territory to the United States, to the 1866 Treaty, which gave us Alaska, these documents spoke of rights, advantages and immunities of citizens of the United States.  Influential antebellum figures such as Daniel Webster—a hero to John Bingham—described this language as referring to federal rights expressly enumerated in the Constitution. 

In his speech to the House of Representatives on May 10, 1866, Bingham explained that this new draft protected “the privileges of citizens of the United States.” These rights, according to Bingham, were “provided for and guarantied in your Constitution.”15  Bingham then mentioned the federal franchise rights of Article I, as well as the Eighth Amendment’s protection against cruel and unusual punishments, as rights of United States citizens that would be protected against state action by this second draft.  Bingham did not use the particular term “Bill of Rights” but his use of the Eighth Amendment as an example suggests that he understood the draft as protecting rights listed in the first eight amendments. 

As he had when he introduced his initial draft, Bingham continued to insist that nothing was being taken away from the states that belonged to them under the original Constitution.  Instead, it was the states who had acted “contrary to the express letter of the constitution” by violating the Eighth Amendment.

There is nothing in Bingham’s speech about “ellipsis” in Article IV—indeed, there is no discussion of Article IV at all.  Bingham simply insists that the language in this second draft protected rights expressly listed in the Constitution such as those found in Article I and in the Bill of Rights.

 
IV.
Jacob Howard

When Jacob Howard stood up to explain the second draft to the Senate, he echoed the approach of John Bingham that viewed the amendment as protecting those rights actually listed in the text of the Constitution.  Instead of citing Article I liberties and the Bill of Rights, Howard cited Article IV and the Bill of Rights as examples of the “mass of privileges and immunities” of citizens of the United States.16

Because Howard cited Corfield and Article IV as examples of the privileges and immunities protected under the Fourteenth Amendment, libertarian scholars often cite Howard’s speech as evidence that the text nationalized all fundamental rights, whether or not listed in the Constitution.  This is not, however, a necessary reading of his speech and, in context it seems quite unlikely to have been either Howard’s intent or how Howard was understood.

To begin with, Howard’s speech mirrors Bingham’s—they both cite enumerated federal rights as examples of privileges or immunities.  The equal protection rights of Article IV are in fact among the enumerated rights of American citizens, just as are the rights listed in the first eight amendments.  Although radical Republicans understood Article IV as referring to fundamental natural rights, neither moderate nor conservative Republicans agreed with such a broad reading—nor, in fact, had any antebellum judicial opinion.  The consensus antebellum interpretation of the Comity Clause view the provision as requiring nothing more than equal treatment when it came to a certain set of state laws, and not as a provision protecting unenumerated natural rights. In fact, Howard later expressly rejected efforts to federalize the general subject of civil rights in the states.  Most of all, it is clear that neither conservatives nor moderates would ever have supported the amendment had they understood Howard as embracing the radical reading of Article IV—yet no objections were raised either during or after Howard’s speech.  There is good reason to think, then, that Howard’s inclusion of Article IV indicated nothing more than his belief that the equal protection rights of Article IV and the substantive rights of the first eight amendments were all part of the “mass” of “privileges or immunities of citizens of United States.” 

 
V.
Post Adoption Debate

However unclear Howard’s views, we do not need to guess when it comes to John Bingham.  One of the most famous pieces of historical evidence regarding Bingham’s view of the second draft of the Fourteenth Amendment is a speech Bingham delivered a few years later in 1871.  Here, Bingham declares that the second draft protected the first eight amendments, but did not nationalize civil rights in the states.17

Bingham’s 1871 speech is discounted by anti-incorporationist scholars, of course, as post-hoc wishful thinking by a muddleheaded gasbag.  But there is no evidence that this is the case.  Nothing in this speech contradicts Bingham’s initial explanation of his second draft.  In fact, Bingham’s views seem rather clear even without this speech as evidence of his views.  The speech is nevertheless important, however, because it expressly contradicts one of the most common claims about John Bingham—that he based the final draft of the Fourteenth Amendment on the Comity Clause of Article IV.  Bingham’s speech is almost entirely devoted to refuting that very claim.

Bingham’s speech was delivered in the context of debates over the 1871 Ku Klux Klan Act that regulated private interference with the rights of United States citizens.  Radicals defended the Act on the grounds that the Fourteenth Amendment gave the federal government control over the general subject of civil rights in the states.  Opponents of the Act claimed that Bingham had abandoned any effort to protect substantive rights in the states when he withdrew his initial draft of the Fourteenth Amendment.  Bingham supported the Act, but he opposed the interpretations of the Privileges or Immunities Clause being put forward by the radicals and the conservatives.  In his speech, he addresses what he viewed as both unduly broad and unduly narrow readings of the Privileges or Immunities Clause. 

First, Bingham explained that the Privileges or Immunities Clause protected substantive federal rights, including those listed in the first eight amendments to the Constitution.  Having refuted the conservatives, Bingham then addressed the radical claim that the Clause federalized the common law “privileges and immunities” which had received only equal protection under Article IV.

According to Bingham, “the privileges or immunities of citizens of the United States” had to be “contradistinguished” from the privileges and immunities of “citizens of a State.”  Where one had to consult state law to determine the laws which must be equally provided under the Comity Clause, Fourteenth Amendment “privileges or immunities” were “chiefly defined in the first eight amendments to the Constitution of the United States.”  Just to drive the point home, Bingham then quoted verbatim the first eight amendments to the Constitution.

Then, specifically responding to radicals who tried to use Corfield and Article IV in their interpretation of the second draft, Bingham declared:

“[I]s 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 or 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.”18

Bingham could not have been clearer: The rights of the privileges or immunities clause involved the substantive rights listed in the Constitution, and not the state-law derived rights given a degree of equal protection under Article IV.   All in all, the 1871 speech confirms what we already knew: Bingham had no desire to transform the vast (indeed limitless) category of common law rights granted equal protection under Article IV into a limitless category of substantive national privileges or immunities.  Bingham’s efforts, from the beginning, were intended merely to require states to protect those rights that the people themselves had placed in the text of the Constitution. 

John Bingham’s second draft of the Fourteenth Amendment “hath that extent—no more.”19

Copyright © 2010 Georgetown Law Journal.

Kurt T. Lash is Alumni Distinguished Professor of Law, University of Illinois College of Law

  1. 128 S. Ct. 2783 (2008).
  2. Nat’l Rifle Ass’n v. Chicago, 567 F.3d 856, 857 (7th Cir.) cert. granted sub nom. McDonald v. City of Chicago, 130 S. Ct. 48 (2009).
  3. Petitioners’ Brief at 10–42, McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (No. 08-1521).
  4. Transcript of Oral Argument at 11, McDonald, 130 S. Ct. 3020 (2010) (No. 08-1521).
  5. According to Scalia, Gura’s approach to the Privileges or Immunities Clause was “the darling of the professoriate” and the only reason for making the argument must be because he was “bucking for a place on some law school faculty.” Id. at 7.
  6. See 6 Charles Fairman, Reconstruction and Reunion: 1864–88 (1971), John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992).
  7. See, e.g., Amar, The Bill of Rights: Creation and Reconstruction 191, 181–183 (1998); Michael Kent Curtis, No State Shall Abridge: Fourteenth Amendment and the Bill of Rights 121–25 (1986); William W. Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954).
  8. Benjamin B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction: 39th Congress, 1865–1867, at 60 (1914).
  9. U.S. Const., Art. IV, sect. 2 (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”).
  10. Cong. Globe, 39th Cong., 1st Sess. 1088–91 (The purpose of the amendment was simply “to arm the Congress of the United States . . . with the power to enforce the bill of rights as it stands in the Constitution today.”) (John Bingham).
  11. As Bingham explained in his speech of January 9th, 1866:

    When you come to weigh these words, “equal and exact justice to all men,” go read, if you please, the words of the Constitution itself: “The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (applying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.

    Cong. Globe, 39th Cong., 1st Sess. 158 (1866).

  12. Cong. Globe, 39th Cong., 1st Sess. 1033 (1866) (describing Article IV and the Fifth Amendment as “these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution”). See also New York Herald, Feb. 27, 1866, at 1, col.5 (presenting a slightly different version of Bingham’s speech) (“But it was equally clear that by every construction of the Constitution—its contemporaneous and continuous construction—that great provision contained in the second section of the fourth article and in a portion of the fifth amendment adopted by the first congress in 1789, that that immortal bill of rights had hitherto depended on the action of the several States.”).
  13. Cong. Globe., 39th Cong., 1st Sess. 1088 (1866).
  14. See Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,320) (Washington, J.) (privileges and immunities provided equal protection under Article IV include rights which are “in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”).
  15. Cong. Globe, 39th Cong., 1st Sess. 2542 (1866).
  16. See Cong. Globe, 39th Cong., 1st Sess. 2764–65 (1866) (remarks of Sen. Howard).
  17. Cong. Globe, 42d Cong., 1st Sess. app. at 84 (1871).
  18. Cong. Globe, 42d Cong., 1st Sess. app. at 84 (1871).
  19. Cong. Globe, 39th Cong., 1st Sess. 1088 (1866).

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