The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick

Authors

Kurt T. Lash, University of Richmond School of Law

Abstract

In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the “fundamental-rights” reading of the Privileges or Immunities Clause. This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade.

Rather than agreeing with John Bingham, Barnett and Bernick declare that they “side with Jacob Howard.” This is somewhat surprising, given that Republican Senator Jacob Howard opposed Bingham’s Privileges or Immunities Clause, voted against submitting it to Congress for debate, and favored a far narrower version of Article IV, Section 1 than the one drafted by Bingham and ratified by the people of the United States. One presumes that Barnett and Bernick side with Howard, not because of his constitutional preferences, but because of one particular speech that Howard delivered to the Senate on May 23, 1866. On that day, acting as a last-minute stand-in for William Pitt Fessenden, Jacob Howard introduced the Fourteenth Amendment to the U.S. Senate. In his speech, Howard explained that the privileges and immunities of citizens of the United States included rights secured by the Comity Clause and described in cases like Corfield v Coryell, as well as rights secured “by the first eight amendments of the Constitution.”

In my writing on the subject, I explain that Howard’s speech is perfectly consistent with the enumerated-rights reading of the Privileges or Immunities Clause. Howard mentioned only enumerated constitutional rights as protected privileges or immunities. The right protected by the enumerated Comity Clause involves nothing more than the right of sojourning citizens to receive equal treatment when it comes to a limited set of state-secured rights (those designated as “fundamental” state-secured rights). The relative protection provided sojourning citizens by the Comity Clause, in other words, is simply one of a number of enumerated constitutional rights Howard named as protected by the Privileges or Immunities Clause.

Barnett and Bernick insist that I have misread Howard’s speech. According to Barnett and Bernick, Howard was not simply naming enumerated constitutional rights; he was declaring that the Privileges or Immunities Clause protected an unenumerated set of absolute “fundamental” rights. Moreover, they insist that this was the original public understanding of the Privileges or Immunities Clause. Although Barnett and Bernick decline in their article to explain exactly how the historical record supports their theory, they nevertheless insist that the historical record does not support my enumerated-rights reading of the Privileges or Immunities Clause.

In this Article, I address each of Barnett and Bernick's arguments in turn. I realize that Barnett and Bernick also make a number of claims regarding the postadoption historical record. I have addressed such evidence elsewhere, and length constraints prevent my repeating those arguments here. Nor is there need to do so. All postratification evidence is necessarily weak as a source of original understanding. The substantial body of preratification evidence provides sufficient guidance for determining the original understanding of the Clause—sufficient, that is, unless one is seeking a different meaning. For those interested, one of the clearest examples of the enumerated-rights reading of the Privileges or Immunities Clause is John Bingham’s 1871 speech explaining the Clause to his colleagues—a speech I quoted in the opening of this Article. For the purposes of this Article, I am content to rest my case on an analysis of preratification evidence. The fact that Barnett and Bernick insist on relying on postratification evidence simply illustrates the weakness of their argument.

Recommended Citation

Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame L. Rev. 591 (2020).
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss2/2