Originalism, Incorporated Rights & 1868

Zietlow, Rebecca E. RZietlo at UTNet.UToledo.Edu
Sat Jun 16 06:08:46 PDT 2007

But it wouldn't have been necessary to completely overturn the system of federalism if Miller had adopted the most narrow view of Ps and Is suggested by the Framers, because they still hoped that the states would provide the first line of protection for those rights.  Federal protection was only necessary when the states failed to protect them.  
Yes, federal citizenship rights adhere to the structure of the federal government, but supporters of the Fourteenth Amendment repeatedly and emphatically made it clear that the 14th Amendment would change the structure of the federal government by enabling it to carry out the social contract and protect the rights of its citizens.
Rebecca Zietlow

From: Earl Maltz [mailto:emaltz at camden.rutgers.edu]
Sent: Fri 6/15/2007 7:43 PM
To: Zietlow, Rebecca E.; Rosenthal, Lawrence; michael curtis; CONLAWPROF at lists.ucla.edu
Subject: RE: Originalism, Incorporated Rights & 1868

I'll take a shot at explaining the "inexplicable."

Let's start with something that Miller got right.  The 14th amendment does
make a clear distinction between state and national citizenship, and the P
and I clause by its terms does protect only the incidents of national
citizenship--not state citizenship.  The question is how one distinguishes
between the two sets of rights.  Miller takes the facially plausible view
that incidents of national citizenship are only those that are either
defined as such in the Constitution, that one would not have absent the
existence of the nation, or (in the case of protection on the high seas)
whose protection has been transferred to the national government by
extrinsic constitutional provisions.  Since in his view one would have the
right to contract, own property, etc. even in the absence of the national
government, they are privileges and immunities appurtenant to state
citizenship--not national citizenship.

The narrow definition also solves a problem that was created inadvertently
by the framers.  Given McCulloch and Prigg, if the rights described in the
14th included those that were protected by the Civil Rights Act of 1866,
Congress would have authority to define the scope of those rights as
well--in essence, to control private economic transactions
generally.  Miller (and I) firmly believed that there was no subjective
intention to make such a sweeping change in the basic structure of
federalism.  His formulation avoids this problem by defining P & I
narrowly.  Bradley's response is instructive;  he basically says, I don't
write'em, I just enforce them as written, and Congress would never do such
a thing anyway.

At 05:17 PM 6/15/2007 -0400, Zietlow, Rebecca E. wrote:
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>Within the 39th Congress, there were a number of views expressed about the
>Privileges and immunities of citizenship, and the meaning of citizenship,
>which was crucial to the mission of Reconstruction (as I argued
>earlier).  The narrowest view expressed by those members of Congress that
>supported Reconstruction, and codified in the 1866 Civil Rights Act, was
>that the privileges and immunities of citizenship included at least the
>protection of life, liberty and property.  Aside from the important issue
>of whether the 14th Amendment incorporared the Bill of Rights, it's also
>true that this widely held vision of the Ps and Is of citizenship is
>absent from the S-H opinion (except to the extent that the right to travel
>and be protected on the high seas is part of the right to the government's
>protection of one's life).  That's the aspect of the S'H opinion that
>seems the most inexplicable.
>From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
>Sent: Fri 6/15/2007 4:49 PM
>To: michael curtis; Zietlow, Rebecca E.; CONLAWPROF at lists.ucla.edu
>Subject: RE: Originalism, Incorporated Rights & 1868
>Thank you, Michael Curtis, for this extremely helpful summary of your very
>important work.
>The Historical Linguisticsarticle 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 immunitieswas oftenused to
>refer to the Bill of Rights.  The article proves that much
>convincingly.  But oftenis not the same as usually.  It seems to me that
>what the article really proves is that among abolitionist lawyers, this
>phrase was oftenused 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
>usuallyused 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 meaningof Privileges and
>Immunitieswas.  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 meaningthat vanished within 7 years?
>In my view, this debate illustrates that original public meaningwill
>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 Curtiss 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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