The idea that the Constitution ought to be understood and interpreted based on its original meaning has come to find expression across the liberal-conservative divide. If originalism has been deemed a conservative mode of jurisprudence associated most often with Justice Antonin Scalia, today some of its most intrepid defenders are left-of-center scholars — Akhil Amar of the Yale Law School is a prominent example — who earnestly insist on capturing and adhering to original meaning in constitutional interpretation. It would be going too far to say that we are all originalists now, yet many of the most interesting debates in constitutional law occur within the contours of original meaning.
If there is a twist, it is that much of the current debate over original meaning focuses on the Civil War amendments, particularly the Fourteenth Amendment, rather than the Constitution of 1787 and the Bill of Rights of 1791. To be sure, this is an overstatement. Originalists like Justice Scalia have always considered constitutional amendments as essential to capturing original constitutional meaning; indeed, originalists have long insisted that constitutional amendment is the only legitimate way to bring about constitutional change. Thus when originalists speak of “the Constitution” they necessarily include amendments to the Constitution as such amendments may legitimately alter constitutional meaning. Even so, the Fourteenth Amendment is of particular interest as so much contestation in constitutional law and interpretation occurs over precisely what liberties the amendment protects and just how these liberties relate to the Constitution of 1787 and the Bill of Rights of 1791. As Steven Calabresi — a professor of law at Northwestern University and founding member of the Federalist Society — says regarding constitutional rights: “The period you should look to to find out the original understanding is 1868, not 1791.1
And yet, when we turn to the rights protected by the Fourteenth Amendment there is not only the question of what rights it protects, but also the question of which clause of the amendment protects them. At issue are two clauses from Section I of the amendment — the Privileges or Immunities Clause and the Due Process Clause — and the relationship between them. The Fourteenth Amendment demands, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” A casual reader might ask, what are the “privileges or immunities” of citizens of the United States? Or what rights are included within the “liberty” that no state shall deprive a person of without due process of law? As those familiar with our constitutional history know, the focus of lawyers and jurists has overwhelmingly been on the second question: What rights are included under the rubric of liberty protected by the Fourteenth Amendment’s due process clause? And this is because almost immediately after the passage of the Fourteenth Amendment, the Supreme Court interpreted the Privileges or Immunities Clause in such a fashion that it has rarely been the subject of much constitutional debate on the Court.
It has, however, been the subject of much scholarly and academic debate. There has even emerged a sort of consensus that the Supreme Court, in the Slaughter-House Cases of 1873, when it interpreted the Fourteenth Amendment for the first time, got the Privileges or Immunities Clause wrong. As the late Edward Corwin argued, “Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a ‘practical nullity’ by a single decision of the Supreme Court.” This sentiment has been echoed by Professor Amar, who insisted that the Court “strangled the clause in its infancy,” as well as by Justice Clarence Thomas, who insisted: “The Court all but read the Privileges or Immunities Clause out of the Constitution in the Slaughter-House Cases.” In the wake of the Slaughter-House Cases, jurists have largely focused on what liberties are protected by the due process clause and whether or not the liberties protected by that clause include the rights found in the Bill of Rights. Over time, the Supreme Court has “incorporated” a number of rights listed in the Bill of Rights and applied them to the states by way of the Fourteenth Amendment. Freedom of speech and religion, the right to a jury trial, and other rights rooted in the Bill of Rights have been found to apply to the states as part of the “liberty” protected by Fourteenth Amendment due process. But the Court has never come to a coherent understanding of what liberties are protected by way of due process. Much of 20th-century constitutional law has been a debate on precisely this issue.
Against this backdrop, scholars have on occasion suggested that this might be more coherently sorted out if we returned the Privileges or Immunities Clause to its rightful place in our Fourteenth Amendment jurisprudence. Returning privileges and immunities to constitutional law might help us think more clearly about the rights protected in the Fourteenth Amendment. This might be rendered more evident when we consider what have come to be dubbed unenumerated rights — say, something like the right to travel, or the right to choose your occupation. Do we have such rights? If so, where are they located? Does it make any real difference? Getting this right has mostly been of academic and historical interest, but that may be about to change.
In the spring of 2010, the Supreme Court heard oral argument about whether the Second Amendment right to “bear arms” applied to the states by way of the Fourteenth Amendment. In 2006, Justice Scalia wrote an opinion for the Court in District of Columbia v. Heller holding on originalist grounds that the Second Amendment protected an individual right to bear arms. Heller, however, did not answer the question of whether this right found in the Second Amendment also found expression in the Fourteenth Amendment and, thereby, applied to the states. This very question was before the Court in McDonald v. Chicago. But it was given an interesting twist. Lead counsel for those who challenged the Chicago ordinance, Alan Gura, insisted that the right to bear arms was rooted in the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause. This position found support across the political spectrum. The liberal leaning Constitutional Accountability Center filed a brief on behalf of law professors that included Yale’s Jack Balkin from the left and Northwestern’s Steven Calabresi from the right. The right-leaning Center for Constitutional Jurisprudence’s brief — co-authored by President Ronald Reagan’s former Attorney General Edwin Meese — also supported this position.
And yet when this argument was put before the Court, it was met with skepticism. As Chief Justice John Roberts noted from the bench during Gura’s argument, “this argument is contrary to the Slaughter-House Cases, which have been the law for 140 years. It might be simpler [to root the right to bear arms in the Privileges or Immunities Clause rather than the Due Process Clause], but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule it.” Justice Scalia was even more dismissive, suggesting to Mr. Gura that if it made no real difference, other than at the level of historical and theoretical accuracy, whether the right was found in the Privileges or Immunities Clause or the Due Process Clause, why not simply incorporate the right by way of due process “unless you are bucking for a place — a place on some law school faculty.” Scalia then insisted the “privileges or immunities clause is the darling of the professoriate . . . but it’s also contrary to 140 years of our jurisprudence.”
This last insistence is far from clear. Even so, in Justice Alito’s opinion for the Court in McDonald v. Chicago, the Court declined to “disturb the Slaughter-House holding.” Thus Justice Alito’s opinion “incorporated” the Second Amendment by way of the Due Process Clause just as Scalia and Roberts encouraged during oral argument. Curiously, however, that argument for “incorporation” might be grounded in the Slaughter-House dissents far more readily than in the Court’s opinion. It is a stretch to say, as the Court did in McDonald, that Slaughter-House remains good law (even if it has not been formally overturned). And yet it is not altogether surprising that Scalia (along with Roberts and Alito) is skeptical of recovering, or reopening, the question of the original meaning of the Privileges or Immunities Clause. Scalia’s originalism is primarily justified as a way to provide the judge with a neutral perspective in order to ground and limit judicial interpretation of the Constitution. In this, Scalia’s originalism is partly rooted in the progressive and New Deal critique of the pre-New Deal Court. In the New Deal telling of history, which Scalia has digested, the “Old Court” came to be dismissed as engaged in “judicial law-making” for protecting unenumerated rights — particularly rights related to occupational liberty — even if it very often offered originalist grounds for doing so. In the wake of the New Deal critique of “judicial lawmaking,” the central “problem” of constitutional interpretation became how to ground and limit judicial will. Scalia’s originalism takes its bearings from precisely this need — and this is just what troubles him regarding the Privileges or Immunities Clause of the Fourteenth Amendment. He is worried that such a potentially open-ended clause will invite the judicial creation of rights. This is also what drives Scalia’s support for incorporation. Limiting Fourteenth Amendment rights to those protected in the Bill of Rights will cabin judicial will — whether or not incorporation actually reflects original meaning.
I believe that Scalia’s fears are misguided — or, at least, his concerns are not alleviated by his own solution. Returning to the original meaning of the Privileges or Immunities Clause is not unlike Scalia’s own insistence that rights grounded in history and tradition might be part of the liberty protected by the Due Process Clause. This is not an invitation to judicially create rights, even if it may well be a command for the judiciary to protect unenumerated rights. But these are not at all the same thing, even if the two have been conflated in the New Deal telling of history.
The New Deal roots of Scalia’s originalism
The story of the progressive and New Deal critique of the Old Court is familiar enough. In the late-19th century and the first few decades of the 20th century, a laissez-faire and reactionary Supreme Court struck down governmental regulations of the economy based on their economic preferences and not the Constitution. This Court came to be symbolized by the infamous case of Lochner v. New York (1905), in which the Court struck down a maximum-hours law for bakers on the grounds that it interfered with “liberty of contract,” which was held to be part of the liberty protected by Fourteenth Amendment due process. The critique of Lochner was pithily summed up by Justice Oliver Wendell Holmes’s dissent: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” In time, Holmes’s insistence that the Old Court was basing its decision on economic theory rather than the Constitution came to frame our jurisprudential vision and Lochner came to be synonymous with “judicial law-making.”
In the wake of this critique, how to justify and limit judicial power in a democracy became the central preoccupation of 20th-century constitutional interpretation. One powerful answer to the “problem” of judicial review was found in the “legal process” school that called for “judicial restraint.” As Justice Harlan Fiske Stone famously insisted, judicial “self-restraint” is “the only check” on the Court’s power. In the hands of Professors Henry Hart and Herbert Wechsler, drawing in part on Stone and Justice Felix Frankfurter, legal process was seen as a way to constrain judges and render “neutral” decisions. A onetime law clerk to Justice Stone, Wechsler captured the central dilemma: “The problem for all of us became: How can we defend a judicial veto in areas where we thought it helpful in American life — civil liberties area, personal freedom, First Amendment, and at the same time condemn it in the areas where we considered it unhelpful?”2 A former law clerk to Frankfurter, Alexander Bickel of Yale Law School, also pleaded for a modest judicial role and the “passive virtues” in The Least Dangerous Branch. Bickel argued that judges needed to artfully attune themselves to their role in a democracy, which required a mindset of restraint.
Another powerful answer to this question was initially put forward in the most famous footnote in Supreme Court history — footnote 4 of Carolene Products. The first paragraph of footnote 4 incorporated the Bill of Rights against the states, insisting that the “specific prohibitions” in the Bill of Rights were “deemed equally specific” when embraced by the Fourteenth Amendment’s due process clause. The virtue here, for these justices, is that this would limit the judiciary to protecting textually specified rights. The great New Deal Justice Hugo Black would become the most powerful advocate of incorporation — insisting that the liberty protected by Fourteenth Amendment due process included the rights listed in the Bill of Rights and only those rights. For Black, any effort to move beyond these rights was dismissed as “a natural-law-due-process formula.” If skeptical of his argument for incorporation, Black’s critique of “natural law due process” would deeply influence the return of original intent in the thinking of Professor Raoul Berger and Judge Robert Bork.
The primary defense of original intent for leading exponents like Berger and Bork was that it grounds judicial discretion in the intent of the positive law. Berger was an ardent New Dealer who accepted the progressive critique of the Old Court. Following many in the “process-restraint” tradition, he was critical of the Warren Court for returning to the putative “activism” of the pre-New Deal Court. While Berger spoke of the intent of the Founders, he most importantly turned to the ratification debates — to what would later be dubbed “original meaning” — to gather the public understanding of constitutional text. Indeed, for Berger it was the public enactment of ratification that made the Constitution binding as fundamental law and legitimized judicial review based upon original meaning. Berger’s originalism appealed to conservatives insofar as they shared his understanding of the role of the Court in a democracy. Robert Bork, who was connected to the “restraint-process” tradition via his Yale Law School colleague Bickel, took the search for “neutral principles” to be central to justifying judicial review given what he called the “Madisonian dilemma” — that is, how to reconcile judicial review with the principle of majority rule. This was the organizing feature of one of his most famous law review articles, “Neutral Principles and First Amendment Adjudication,” prior to his turn to originalism.
Berger and Bork’s originalism also found common cause with Justice Black’s denunciation of natural rights as “an incongruous excrescence upon the Constitution.” As Bork put it in The Tempting of America, “the judge who looks outside the Constitution always looks inside himself and nowhere else.” If these originalists drew on the ghost of Lochner to criticize “judicial activism” and “natural law,” it is because they had digested the New Deal telling of history. This is evident in Justice Scalia’s version of originalism as well. Scalia’s originalism, like Berger’s and Bork’s, emerged from an inherited set of problems that beset legal and constitutional thought in the wake of the progressive critique of the Old Court. While Scalia is not unconcerned with constitutional fidelity, his public defenses of originalism, most prominently “Originalism: The Lesser Evil,” have championed it from a different angle. As Justice Scalia puts it, “the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely.” Originalism, while not perfect — notice that Scalia calls it “the lesser evil” — is the best method of interpretation because it “does not aggravate the principal weakness of the system [judicial discretion], for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.” According to Scalia, original meaning is most plausibly defended, not because it faithfully interprets the Constitution, but because it limits judicial discretion.
Concern that a justice might read his or her predilections into the Constitution was evident in Scalia’s questions from the bench in McDonald v. Chicago. When Gura admitted it was difficult to give a “full description of all unenumerated rights” that might be protected by the Fourteenth Amendment under the Privileges or Immunities Clause, Justice Scalia quipped “doesn’t that trouble you?” It not only troubles Scalia, it drives his originalism. The organizing principle of Scalia’s originalism is the need to obviate judicial willfulness. This is also what leads Scalia to accept the argument for incorporation. If the liberty protected by Fourteenth Amendment due process is limited to rights listed in the Bill of Rights, then judges will be limited in their interpretation of “due process.” Incorporation, in these terms, is of a piece with limiting judicial will.
Scalia has consistently argued that only rights that are explicitly enumerated in constitutional text or have been accorded longstanding historical protection in American society would qualify for the Court’s most exacting level of judicial review. As Scalia put it in dissent from a due process decision, drawing on the progressive understanding of history, “In my history-book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel (1937), which produced the famous ‘switch in time’ from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal.” 3 And yet, what if unenumerated rights inhere in constitutional text and original meaning? What if they are deeply rooted in the history of American constitutionalism? Scalia has been blind to this possibility insofar as his jural understandings have been framed by the New Deal.
Original meaning and unenumerated rights
Eminent jurists inthe late 19th and early 20th centuries saw unenumerated rights as rooted in constitutional text and the very nature and purpose of a written constitution. In an intriguing recovery of such thought, the constitutional historian Jonathan O’Neill, in his book Originalism in American Law and Politics, has described these earlier originalists, in contrast to “contemporary originalists,” as textual originalists. These originalists were the very justices criticized by New Dealers such as Black — though, in truth, many of them were often supporters of something like incorporation — for engaging in “natural law reasoning.” Describing such jurists as “textual originalists” might, at first glance, seem jarring. Yet this is an apt description. Constitutional text itself often points to unenmerated rights — to wit, the Ninth Amendment and the Privileges and Immunities Clause of Article IV as well as the Privileges or Immunities Clause in Section 1 of the Fourteenth Amendment; and there is also the fact that you cannot be deprived of liberty without due process of law in both the Fifth Amendment and the Fourteenth Amendment. These clauses suggest rights to be protected, but do not offer an enumeration of said rights. There is a robust tradition within American constitutionalism of protecting rights by enumerating and limiting governmental power rather than specifying rights. The framers of the Fourteenth Amendment, much as those who framed and ratified the Constitution of 1787 and the Bill of Rights of 1791, sought to protect rights in this manner. Notice that both the Bill of Rights and the Fourteenth Amendment textually command limits on governmental powers rather than bestowing rights. Once we recapture this state of mind, we can see the logic of earlier originalists, who treated unenumerated rights as a part of the Constitution itself and not, to borrow Justice Holmes’s formulation, as some “brooding omnipresence in the sky.”
Having too often viewed these earlier justices through Holmes’s distorted lens, originalists attached to Scalia might develop a mild case of cognitive dissonance by returning to the actual words of this earlier generation of jurists. It is perhaps surprising to hear Justice George Sutherland — one of those cantankerous “four horseman” who purportedly cast themselves against all New Deal legislation given their economic predilections — insist, “The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it.”4 Sutherland, like many of the pre-New Deal justices who turned to original meaning, often invoked it in defending unenumerated rights like “liberty of contract.” As Sutherland insisted while defending liberty of contract against a shifting Court, “We frequently are told in more general words that the Constitution must be construed in the light of the present. If by that it is meant that the Constitution is made up of living words that apply to every new condition which they include, the statement is quite true. But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written — that is, that they do not apply to a situation now to which they would have applied then — is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.” What is more, Sutherland, in the name of upholding the Constitution, would turn the tables on those who pled for judicial restraint: “The suggestion that the only check upon the exercise of the judicial power, when properly invoked to declare a constitutional right superior to an unconstitutional statute, is the judge’s own faculty of self-restraint is both ill-considered and mischievous. Self-restraint belongs in the domain of will, and not of judgment.”5
In drawing on original meaning to defend unenumerated rights, Sutherland and justices like him were deeply rooted in the constitutional understandings of the founders as well as the framers of the Civil War amendments. It is a curious inversion of American constitutionalism to think that only rights named in the Bill of Rights might be protected. The story is a familiar one: The Constitution came to us without a bill of rights, but this deep inadequacy perplexed the people and the need for a bill of rights became a persistent demand throughout the ratification debates. Happily, the Constitution’s defenders conceded the centrality of a bill of rights and so a bill of rights was ultimately agreed to and, thereby, our rights were secured. It is even more curious that a leading originalist justice seems to implicitly accept this understanding. Consider it in this manner: suppose that we did not have the First Amendment prohibition that “Congress shall make no law . . . abridging the freedom of speech?” Could Congress, then, abridge “the freedom of speech”? Our leading originalist jurist, if pressed to follow his own logic, would be compelled to say “yes.”
Angled from this perspective, the Bill of Rights protected what the Constitution did not. This is perplexing because it is precisely what the lead author of the Bill of Rights — and, for that matter, the Constitution — denied. James Madison insisted that the Bill of Rights did not, in any substantive way, alter the Constitution; it did not protect liberties that would have been unprotected without it. Rather, a bill of rights could be put forward in a manner that would reaffirm constitutional limits and principles — to “make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it” — assuaging the fears of those who were troubled by the lack of a bill of rights.
To understand this mindset it is useful to revisit the initial criticism of a bill of rights, particularly as, to our modern ears, such criticism might seem strange. Why, after all, would one be opposed to a bill of rights? It should not come as a shock that critics of a bill of rights were not opposed to protecting rights; indeed, they were critical of a bill of rights precisely because they thought it potentially dangerous and subversive of liberty. The Constitution’s most powerful defenders, such as James Wilson, a leading participant in the Constitutional Convention and signer of the Declaration of Independence, offered principled reasons against a bill of rights that were rooted in the very premises of a written constitution.
As Wilson implored fellow delegates at the Pennsylvania Ratifying Convention, “in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent.” Wilson’s argument went to the core of what it meant to have a written constitution and he sought to teach his fellow citizens this lesson: If we begin from the premise that people have, by nature, rights and they create a government for the purpose of protecting their rights, then the people give the government a limited grant of power by way of a written constitution. Reversing this order, if we attempt an enumeration of rights, “every thing not enumerated is presumed to be given.” Liberty, accordingly, is protected by enumerating power, not enumerating rights. After all, Wilson argued, rights are not something that the government bestows upon the people by way of a bill of rights as was done in the various English bills of rights where islands of liberty were carved out as exceptions in a sea of governmental power. In America, by contrast, constitutional government began from the axiom that the people hold power and give a limited grant of it to the government. The government may only exercise the power it has been granted by way of enumeration. Why create a bill of rights that potentially inverts the logic of constitutional government? Why say the government cannot do things that it has not, by way of the written Constitution, been given the power to do? Wilson was hardly alone in his thinking.
Edmund Randolph made just this point at the Virginia Ratifying Convention: “In the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? — for if its powers were to be general, an enumeration would be needless.” This was put most powerfully by Alexander Hamilton in The Federalist, No. 84: “For why declare that things shall not be done which there is no power to do?” As Hamilton reasoned, “bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.” Here, however, power not given was retained. In this sense, Hamilton argued, “the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.” It is so, because it protects the people’s rights by way of enumerated power in a written constitution.
While sharing this principled skepticism of a bill of rights, James Madison thought it could be overcome. And he thought it necessary to secure a bill of rights not because the Constitution was defective without it, but because a bill of rights could secure the Constitution against its critics without altering it. In Madison’s hands the Bill of Rights was a crucial tool in reaffirming and reminding the public of constitutional principles and limits. Notice that the Bill of Rights does not actually confer rights (with perhaps the exception of criminal process rights in the Fifth, Sixth, and Seventh Amendments). It does not grant you, for instance, the “right” to “the freedom of speech” or “the free exercise of religion.” Rather, the Bill of Rights largely consists of “shall nots” that remind us of the limits of governmental power. And Madison sought to overcome what he viewed as the greatest objection to a bill of rights — that the enumeration of some rights would imply that what is not enumerated is not protected — by way of the Ninth Amendment. It reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment is not a grab bag of rights — where a justice can reach in and pull out whatever strikes his fancy — but a reminder that we are a government of enumerated and limited powers. While a staunch supporter of the federal system, Madison was concerned that individual rights would remain insecure against state action. Madison had, in fact, offered up an amendment that would prohibit the states from abridging certain rights, but it did not make its way out of Congress. In this, Madison thought the Constitution incomplete. Those who framed the Fourteenth Amendment drew explicitly on Madison’s logic and sought to complete his constitutional vision.
Privileges and immunities and unenumerated rights
If the constitution of 1787, even with the Bill of Rights, potentially left rights unprotected from state violation, the Fourteenth Amendment sought to rectify this constitutional flaw. Many of the states already protected such rights in their state constitutions, but in the years before the Civil War many states encroached upon such rights. And in Dred Scott v. Sanford, Chief Justice Taney forever excluded blacks, free as well as slave, from U.S. citizenship and insisted they had “no rights which the white man was bound to respect” under the Constitution. Yet it was not only the rights of blacks that were insecure. The rights of speech, religion, association, occupation and travel (to name just a few) were denied to whites as well as free blacks prior to the Civil War. In a number of states, abolitionist literature was prohibited, criticism of slavery prohibited, the teaching of blacks (free or slave) was prohibited, as was the right to travel between states. After the war, blacks were barred from many professions, could not make contracts, and could not be parties in a legal proceeding. It may well be argued whether such rights were natural rights, the rights of U.S. citizens, or the rights of state citizenship. In the antebellum period there was much contestation on this issue. The Fourteenth Amendment sought to clarify this debate by providing these rights with constitutional protection. It did this by clarifying U.S. citizenship and limiting the power of the states. In framing the language of what would become the Fourteenth Amendment, Representative John Bingham of Ohio sought to replicate Madison’s language in the Bill of Rights by giving us “shall nots” aimed at the states rather than an enumeration of specific rights. Recall the language of Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”6
It is true that the defenders of the Fourteenth Amendment were, on occasion, reluctant to precisely define the “privileges and immunities” of citizenship. Yet this is not because, as Bork has suggested, “the clause has been a mystery since its adoption” and therefore must be treated by judges as “an inkblot.” Rather, much as the Founders were reluctant to catalog a list of rights in a bill of rights, those who framed the Fourteenth Amendment worried that naming specific rights (or privileges and immunities) in every context was difficult and problematic. Yet the framers of the Fourteenth Amendment, as well as their critics, had a fairly clear idea of what civil rights they meant to protect. And these liberties were historically grounded in American constitutionalism even if some of these liberties were also rooted in natural rights, as a number of members argued, and therefore antecedent to constitutions. The sponsors of the amendment in the House and the Senate, and the debates in the House and the Senate, which were well publicized during ratification, frequently turned to Bushrod Washington’s opinion in the 1823 case of Corfield v. Coryell in fleshing out their understanding of the “privileges and immunities” of citizens. Washington spoke of “those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free government; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union.” Washington went on to note: “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and posses property of every kind and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” Washington gave examples that included the right to travel between the states (including a right to reside within a new state), the right to pursue a calling, the benefit of habeas corpus, the right to bring actions in court, and the right to own property.
As Senator Jacob Howard of Michigan said in explicating the amendment to the Senate, “To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution.” In drawing out “privileges and immunities” Howard had turned to Washington’s Corfield opinion, as did a number of other members in the both the House and the Senate. Those who framed and ratified the amendment insisted that civil liberties included what have often been referred to as longstanding rights at common law — the right to follow a trade, contract, own property, bring suit in court, and habeas corpus — as well as natural rights forged in early American constitutionalism — the right to freedom of speech, freedom of the press, freedom of assembly, freedom of religion, and freedom to petition the government for a redress of grievances. The orthodox understanding of privileges and immunities in the antebellum period was one of comity rights, rather than substantive rights: Whatever rights states granted to their own citizens they would also have to grant to citizens of the other states who came under their jurisdiction. Similarly, the orthodox understanding of the Bill of Rights is that it only applied to the national government and not the states. Thus in orthodox antebellum readings of the Constitution, civil liberties — whether rooted in historical understandings or textual enumerations — were not protected from the states.
This is precisely the dilemma of American constitutionalism that those who framed the Fourteenth Amendment meant to overcome. With the passage of the Fourteenth Amendment, a host of civil liberties that had remained insecure would now be secured against the states and rooted in national citizenship. If these rights were not always clearly specified, they are not simply malleable: a judge could not read whatever he or she wanted into the “privileges and immunities” of citizenship. Rather, the framers of the Fourteenth Amendment offered a historically rooted understanding of rights — even if they were recognized as a mix of both common law and natural rights — that were central to American constitutionalism. Admittedly, there was hesitation to specify them “in their entire extent.” And yet, following Scalia, if we turn to history and tradition, we would find these rights extolled again and again in the antebellum years — and throughout the debates on the Civil Rights Bill of 1866 and the Fourteenth Amendment — even if they were constitutionally insecure prior to the ratification of the Fourteenth Amendment.
Limiting original meaning
And yet when the Fourteenth Amendment came before the Court a mere five years after it was ratified, in the 1873 Slaughter-House Cases, the Court offered a doubtful version of privileges and immunities of U.S. citizenship. Let me briefly take up the treatment of the Privileges or Immunities Clause in Slaughter-House. In his opinion for the Court, Justice Samuel Miller, a native of Kentucky and a Republican appointed by Lincoln, divided citizenship into national citizenship and state citizenship. He then argued that the clause only protected the “privileges or immunities of national citizenship.” From here his opinion takes an odd turn. Miller asked, “Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?” Miller then insisted that this could not have been the intent of the amendment. Miller did not puzzle over the fact that state courts would, in the first instance, protect such rights. As Bingham had said during the framing debates, the amendment would embrace Alexis de Tocqueville’s conceptualization of America constitutionalism as “centralized government, de-centralized administration.” Thus the structure of federalism might remain in place with the exception that the states would now be obligated to protect rights that, according to orthodox understandings, had been insecure against state violation. Similarly, Justice Joseph Bradley in dissent insisted that once the states moved into the mindset that such rights were protected, this would not greatly overturn the structure of American constitutionalism. Miller, however, cast off such sober responses and read the privileges or immunities of national citizenship narrowly so as to essentially keep the orthodox antebellum understanding of civil rights in place. The privileges and immunities protected by the Fourteenth Amendment, Miller argued, included the right to travel to the seat of government, and the right to the “protection of the Federal government over . . . life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.”
Rights of the sort put forward by Madison, Washington, Howard, and Bingham — the right to free speech, religious belief, to contract, to own property, to choose a calling, to travel, and to bring suit in court — were all, Miller argued, rights derived from state citizenship and therefore not protected by the Fourteenth Amendment. This is peculiar. Those who framed and ratified the Fourteenth Amendment made clear that they sought to protect rights that were being infringed in a number of the states. These rights included free speech, freedom of movement between states, the right to contract, the right to own property, and the right to bring suit in court. These were the rights being denied in a number of states — to whites as well as blacks — and were the rights put forward again and again in the framing debates. And yet Miller sought to protect a handful of rights that were neither the subject of debate over the Fourteenth Amendment, nor infringed by the states in the years prior to the framing and ratification of Fourteenth Amendment. Indeed, it is not even clear how the states themselves — the entity prohibited from violating these rights — could infringe upon the right to federal protection on the highs seas or in a foreign government.
Eloquent in dissent, Justice Stephen Field insisted that if Miller’s reading were correct, “If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Contrary to Miller, Justice Field offered a sensible understanding of the Fourteenth Amendment that seemed clearly rooted in the recent framing and ratification debates. Field noted the vexed history of civil rights and citizenship in the antebellum period:
The Slaughter-House opinion has not been formally overturned. Nevertheless, the Court would come to protect a host of rights against the states in the very manner that compelled Justice Miller to read the Fourteenth Amendment’s privileges and immunities so narrowly. And while Miller’s opinion did not explicitly reject incorporation, it did dismiss the due process challenge at issue. We do not want to get caught up in an intricate legal debate. But despite Justice Alito’s opinion to the contrary — joined by Roberts, Scalia, and Kennedy — incorporating the Second Amendment is not necessarily consistent with the Slaughter-House decision. In fact, two years after Slaughter-House, the Court specifically denied that the Fourteenth Amendment incorporated either the First Amendment or the Second Amendment against the states. This has led to a general sense that Miller’s Slaughter-House opinion is at odds with incorporation and has been departed from long ago. This point was made in a number of briefs in the McDonald case. Yet in oral argument in McDonald, Scalia seemed clear that the Second Amendment right to bear arms was incorporated by Fourteenth Amendment due process, which was embraced by the Court in Alito’s McDonald opinion. But it is not altogether clear how this squares with the Slaughter-House opinion, which both Scalia and Alito have insisted is still good law. It is an open question whether these justices, like Miller before them, are seeking to cabin original meaning in order to limit judicial discretion.
Original meaning and the judicial role
Scalia’s skepticism of the Privileges or Immunities Clause is rooted in his skepticism of the judicial creation of rights. Yet turning to the original meaning of the Privileges or Immunities Clause is not an invitation for the judiciary to create rights. As is evident from a quick look at the history of the Fourteenth Amendment, there are a fairly clear set of rights that were understood as part of the “privileges and immunities” of citizenship. Turning to a historical understanding of “privileges and immunities,” in fact, is not so different from Scalia’s insistence that rights rooted in history and tradition might qualify as fundamental rights under due process analysis. The rub is that such an understanding would almost certainly include rights that Scalia, having digested the New Deal telling of history, is skeptical of — liberty of contract, for instance. Yet such “economic” rights were at the heart of the Fourteenth Amendment. While the Old Court protected such rights, it held that they were subject to reasonable regulation. And it upheld the vast majority of laws regulating such rights so that it was not “a perpetual censor of the states.”
> To be sure, a justice could attempt to manipulate such reasoning to judicially create a right that was beyond the original meaning of the Fourteenth Amendment. And insofar as original meaning is complicated, it may be difficult to apply. Scalia noted this difficulty in “Originalism: The Lesser Evil”: “It is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material.” Scalia has even suggested that the judiciary is not the ideal place for this inquiry: “Do you have any doubt that this system does not present the ideal environment for entirely accurate historical inquiry? Nor, speaking for myself at least, does it employ the ideal personnel.” Still, Scalia has insisted on originalism as the only legitimate theory of constitutional interpretation. In this guise, originalism is offered as a sort of a “second-best” theory of interpretation that would tame judges by tethering them to a neutral process. Yet does it? This also raises a crucial question that is not readily settled by constitutional text or original meaning: Is obviating judicial lawmaking the highest constitutional value? May this aspiration, by an act of judicial discretion, limit the Constitution itself? To put it pointedly: Does the concern with limiting judicial discretion justify trumping the original meaning of the Constitution with some form of judicial deference? This is, at root, what the Court did in Slaughter-House with regard to the Privileges or Immunities Clause. Even if the Court attempted to cloak such a move as a form of judicial modesty, it is difficult to see how this is not a stunning form of judicial activism.
Notwithstanding Justice Miller’s effort, since the essential erasure of the Privileges or Immunities Clause many of the rights that would have originally been protected by it have come to be protected by incorporation under the due process clause. And yet the Court has long been vexed over the logic and reach of incorporation and there has often been little agreement about what liberties are protected by Fourteenth Amendment due process. There are those, such as Justice Black, who have insisted that Fourteenth Amendment due process incorporates the Bill of Rights as a way to limit and confine due process. The Court, however, has never accepted total incorporation. Rather, beginning with the incorporation of First Amendment rights of free speech, the Court has selectively incorporated the right to free exercise of religion, trial by jury and other criminal process rights, as well as the right against cruel and unusual punishments. And in McDonald the Court incorporated the Second Amendment right to bear arms.
In partial contrast to selective incorporation, another approach to Fourteenth Amendment due process jurisprudence has been to suggest that those rights bound up with “ordered liberty” are protected by the Due Process Clause. Associated most powerfully with Justices Benjamin Cardozo and Felix Frankfurter, the logic of ordered liberty has on occasion included rights found in the Bill of Rights to be protected by Fourteenth Amendment due process, but it includes such rights because they are part of “ordered liberty” and not because they are enumerated in the Bill of Rights. This may appear an excessively refined distinction, but it is an important one: for “ordered liberty” has been found to be both narrower and wider than the Bill of Rights. Anchored in ordered liberty, Fourteenth Amendment due process is said to “rest on its own bottom”: rights that fall within the contours of ordered liberty might not only include unenumerated rights, but may exclude some of the rights enumerated in the Bill of Rights (those that the Court has said are not essential to order liberty). The dissenting opinions of Justices Stevens and Breyer in McDonald, for instance, found that the Second Amendment right to bear arms was not essential to “ordered liberty.”
As initially put forward by justices such as Cardozo and Frankfurter, ordered liberty was understood to be rooted in history and tradition. Those rights that had longstanding roots in Anglo-American constitutionalism were thought to be a necessary part of ordered liberty and therefore protected by the Due Process Clause. Scalia’s own turn to history and tradition has been influenced by this strand of jurisprudence. Scalia’s logic is that rights long rooted in history and tradition might be judicially protected in a manner that does not invite the judicial creation of rights. Scalia has brought together the great New Deal antagonists — Frankfurter and Black — in confining the judicial protection of rights under the Due Process Clause to those rights with a long history of protection and to those rights enumerated in the Bill of Rights. Following Scalia’s logic, text and tradition will tether judges to a neutral process of constitutional interpretation. In spite of the turn to history to help define liberty under the Fourteenth Amendment, many of the liberties that preoccupied the framers of the Fourteenth Amendment — the rights to pursue a calling, to contract, to own and dispose of property — have not been held to be essential to ordered liberty, or rooted in history and tradition. It is not surprising, then, that ordered liberty has, in some sense, come to be replaced by a notion of “fundamental rights.” The answer to the vexing question — what rights fall under the liberty that no person shall be denied without due process of law? — is those rights that are fundamental. What precisely these rights are and why they are fundamental has remained unclear.
Consider, for a moment, the right to travel. This right is not enumerated in constitutional text and yet it has been held to be a fundamental right. Curiously, the Court held it to be a privilege of citizenship under the Fourteenth Amendment in one of the few cases that rested on that clause since the Slaughter-House Cases.7 But the Court showed little interest in breathing life into privileges and immunities, or situating the right to travel in a larger context. Rather, the Court’s protection of the right to travel was more consistent with selectively protecting rights it deems fundamental. Rights that are as deeply rooted in history and tradition as the right to travel, but that touch on economic issues, for instance, have been erased from constitutional protection. And other rights, such as the right to privacy, have been deemed to be fundamental, but with little explanation of the scope or foundation of “privacy.” Thus private choices that deal with contraception or abortion are said to be fundamental. But it turns out that some private choices are not constitutionally protected. A union, for instance, may extract money from a non-union worker because in some indirect capacity the union “represents” his or her interests. Here we have an intimate relation — the private choice of who speaks for you — that does not, for reasons that go unexplained, fall under the right of privacy. This places the judiciary in the position of selectively protecting the rights it happens to be concerned with — whether they are held to be enumerated, part of ordered liberty, rooted in history and tradition, or simply fundamental.
Turning to the Privileges or Immunities Clause offers a way to bring sense and order to our Fourteenth Amendment jurisprudence. Return, momentarily, to the right to travel. This right was clearly understood as one of the privileges and immunities of citizenship under the Fourteenth Amendment. Those who framed the amendment complained of states that would prohibit free blacks from entering the state and sought to overcome this problem. The right to travel between states, or take up residence in a new state, “for purposes of trade, agriculture, professional pursuits, or otherwise,” was a necessary right of citizenship and essential to other rights. Returning to the privileges and immunities of citizenship would not only give us firm grounding for such unenumerated rights as the right to travel (and other such rights), but it would offer us a fairly coherent set of rights that are readily identifiable. It is time the Court formally overturned The Slaughter-House Cases as the beginning point of bringing coherence to our Fourteenth Amendment jurisprudence.
1 Jess Bravin, “Rethinking Original Intent,” Wall Street Journal (March 14, 2009).
2 Quoted in William Leuchtenburg, The Supreme Court Reborn (Oxford Press, 1996), 234.
3Planned Parenthood v. Casey 505 U.S. 833, 998 (1992) (Scalia dissenting).
4Home Building Loan Association v. Blaisdell, 290 U.S. 398, 452, 453 (1934).
5West Coast Hotel Co. v. Parrish, 290 U.S. 398, 403, 402 (1937) (Sutherland dissenting).
6 Bingham was indebted to Giles Hotchkiss for this language. See Giles Hotchkiss, The Congressional Globe, 39th Congress, 1st Session (1866), 1095.
7Saenz v. Roe 526 U.S. 489, 503 (1999); Twining v. New Jersey, 211 U.S. 78, 97 (1908).