Originalism, Incorporated Rights & 1868

Fri Jun 15 13:49:38 PDT 2007

Thank you, Michael Curtis, for this extremely helpful summary of your
very important work.  

The "Historical Linguistics" article is perhaps the most thorough
discussion of this issue.  In that article, Professor Curtis sets out to
demonstrate that as of the 1860s, the phrase "privileges and immunities"
was "often" used to refer to the Bill of Rights.  The article proves
that much convincingly.  But "often" is not the same as "usually."  It
seems to me that what the article really proves is that among
abolitionist lawyers, this phrase was "often" used to refer to the Bill
of Rights, but the views of abolitionist lawyers were not necessarily
those of the majority.  Indeed, if there is any methodology for
determining how that phrase was "usually" used as of 1866-68, it escapes
me.  We do know, however, that there were many usages that did not
include the Bill of Rights as among the "privileges and immunities."
Corfield v. Coryell did not construe the same phrase in Article IV to
refer to the Bill of Rights, but instead seemed to take a natural law
approach, and the most popular antebellum treatises (Story and Kent)
tracked that approach, as did Cooley.  Dred Scott used the phrase to
refer to the rights of citizens against only the federal government, and
Slaughterhouse, as Professor Curtis acknowledges, seems to echo that
approach (the fact that it takes Professor Wildenthal over 100 pages to
argue for a different interpretation of Slaughterhouse - one that so far
as I can tell no 18th century lawyer shared, not even the Slaughterhouse
dissenters, should induce some skepticism).  In short, it is far from
evident what the "original public meaning" of "Privileges and
Immunities" was.  If everyone, or at least most of those learned in the
law, understood as of 1868 that this phrase referred to the Bill of
Rights, how could that understanding have escaped every member of the
Supreme Court by the time of Cruikshank (1875)?  And what kind of theory
is it that embraces an "original public meaning" that vanished within 7
years?

In my view, this debate illustrates that "original public meaning" will
frequently encounter the same pitfalls in reconciling divergent views
that Paul Brest demonstrated makes impracticable any effort to ascertain
"original intention."  History can be of some help, and indeed I find
Professor Curtis's work enormously helpful.  At the end of the day,
however, the need to exercise judgment about how to construe an
ambiguous text that reasonable persons, or lawyers, could have plausibly
read in divergent ways.

Larry Rosenthal

Chapman University School of Law

________________________________

From: michael curtis [mailto:curtism at bellsouth.net] 
Sent: Thursday, June 14, 2007 7:33 PM
To: Zietlow, Rebecca E.; Rosenthal, Lawrence; CONLAWPROF at lists.ucla.edu
Subject: Re: Originalism, Incorporated Rights & 1868

Dick Aynes suggests Miller was critical of the Reconstruction Congress
and probably no fan of the 14th.  Furthermore after the 14th was passed
Congress, as I recall Dick Aynes says he was on a long trip with Bingham
as a fellow traveler.  But someone should email Dick with these
questions. He has done lots of fine work.   On the other hand Michael
Ross and others see it differently--Miller is just anti-Lochner.  

But Miller could easily have taken lots of wind out of the charge that
the Privileges or Immunities Clause as construed was an empty set.  Also
see the false dichtomy he sets up--either obliterate the states or buy
my silly list.  Either turn all regulation of virtually every civil and
economic right and state matter over to the feds and risk preemption of
all state laws or buy my narrow construction.  But there was an obvious
middle way.  Furthermore Bradley expressly discussed P or I as including
the Bill of Rights.  So it isn't as though Miller just overlooked the
possibility.  Was  Miller still around for Cruickshank?  Yes he served
until 1890.  So it seems to me he won the war in Slaughterhouse and
everyone fell in line--at least for a while.  Field later defects on
incorporation.  Harlan never accepts the received wisdom, but he wasn't
there until later.  If Miller intended incorporation why the coy
language about petition and assembly and the quick clarifiaction in
Cruickshank that these are only rights vis a vis the federal government.
Note before the War Republicans were calling for state by state action
to get rid of slavery--so they were talking about protecting the right
to speak on a state law matter--that is Helper's book, and the Worth
prosectuion. It was not at all about just the right to petition the
feds.  And searches and seizures of "incendiary literature" were
rampant--as in the seizures of Helpers book and the book burning in NC.
The pre war denial of speech, press, petition, etc. on state law
issues--slavery--remained a much discussed major grievance after the war
as you can see from discussions of Reconstruction in Congress in 1866
and also by the much publicized Convention of the Southern Loyalists
whose address in 1866 after Congress adjourned was carried in a number
of national papers and most of the major Republican ones.  It is
discussed in No State Shall Abridge.   Also in Free Speech, The People's
Darling Privilege at 362-64.  On 364 there is also Hamilton's campaign
speech for the 14th.  There is a brief discussion of Treatises on 365--&
like Dick I concluded that Cooley was silent in 1868 & say that he later
finds free speech protected by the Due Process Clause.  Note there was a
good argument under Murray's Lessee for finding the criminal procedure
rights in due process.  There is a short summary of historic usage (lots
shorter than the 80 or so pages of examples in the NC Law
Review--Historical Linquistics-- at 367-68.  Contra views are disucssed
at 368-69.  The usual mistaken argument based on the Civil Rights Act as
equaling section 1 and being inconsistent with incorporation is dicussed
on 371.  US v. Hall is set out on 373-4.  Discussion of SH at 374-79 &
Cruickshank at 379-380.  Does all this conclusively prove reference to
the liberties in the Bill of Rights and elsewhere as designed to limit
the state--this plus following the Barron instructions of No State
Shall.  No.  But the evidence is stronger than the alternative.  At
least selective incorporation seems hard to refute (Fairman even
concedes that) & there is little direct evidence for such a limit.  I am
not a fan of unlimited gun rights (we don't even have unlimited speech
rights) but the 2d is pretty prominent in the debate, though perhaps you
could make some sort of militia argument, but I am skeptical.

Bryan Wildenthal has done some very fine work, but I think he may be
getting more skeptical than he originally was about Slaughterhouse
revisionism.  I think he would say that S-H did not flatly rule out
incorporation.  But he should speak to that.  On Treatises I found one
pro and Dick found more.  But the one on Criminal Law may go the other
way or at least be silent.  I don't recall but think Bishop has been
cited as contra.  Note however that statements after SH are suspect &
certainly any after Cruickshank because by then the judicial die has
been cast.

Yes, as Larry notes S-H does sound a lot like Dred Scott--but of course
a crucial purpose of the 14th was to overrule Dred Scott and it seems to
me to protect a body of previously recognized federal rights (privilege
or immunities) against the states. Note Bingham and many other
Republicans would have been hung in NC as endorsers of Helper's book.
If privilege and immunity is a good enough way for the USSCT to describe
each and every right in the Bill of Rights--see e.g. Palko--why is is
not good enough for Bingham. If Madison can describe free speech and
rights of conscience (religion) as privileges in the 1791 debate over
the Bill of Rights--why not Bingham.  If Republicans can repeatedly say
in 1866 that the 14th will give citizens the shield of all their
constitutional rights--with a back drop of 30 years of complaints that
Southern states had been denying such rights (this view contra Barron),
that might seem some strong evidence too.  Cruickshank explains that the
idea that Americans have the basic rights in the federal bill of rights
as a protection is a mistake.  The rights if they exist at all come from
their states.  Citizens have only a protection against the federal govt
denying these rights.  This is consistent with Barron--which is of
course prior to the 14th--but is utterly inconsistent with lots of
discussion for many years before the framing of the 14th and certainly
on the eve of the Civil War.  I think that describing those who endorse
the view that citizens have protection by the federal constitution from
denials of free speech, etc before the war as a "handful" overlooks the
substantial number of people who make such statements.  And virtually no
one directly says the opposite among Republicans in1866--though some do
say things that look inconsistent and occassionally probably are.  But
sometimes at least they also elsewhere say things that are quite
consistent--and very explicit-- in other places.  John Sherman is an
example.  The actual or alleged contras in 1866  are the real handful
and on close examination many but not all are not necessarily
inconsistent.

Michael Curtis

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