section 1 & the civil rights act; non discrimination as the meaning of section 1 & other oft repeated fallacies.

[michael curtis]

On the textual issue one can say with absolute certainty that the words "privileges" and "immunities" were often used to describe basic bill of rights and liberties.  One cannot say that was the only way the words were used. For about 79 pages of examples--most before but also after the drafting of the 14th see, Historical Linguistics, Inkblots, and Life after Death:  the Privileges or Immunties fo Citizens of the United States, 78 NC L. Rev. 1071 (2000).    The examples run from the colonial background, through the framing of the constitution, the debate over the sedtion act, the controversy over suppression of anti-slavery speech, presidential messages, etc, through a number of suprme court decisions (including ironically Palko which describes each and every right as a privilege or immunity but finds no general application under section1), through Franklin Roosevelt' proclaimation of Bill of Rights day, etc.  The great majority of the examples are from the colonial era through 1868.

So when Bingham and Howard use the words in this way they are not doing anything unusual.  One common description of section 1 was that it would protect all constitutional rights of Amercian citizens.  That does not fully answer what these were but does seem an odd way to describe an provision that let's you take rights away so long as you do it for all.

Michael Curtis
  ----- Original Message ----- 
  From: Lawrence Solum 
  To: michael curtis 
  Cc: Volokh, Eugene ; conlawprof at lists.ucla.edu 
  Sent: Thursday, July 03, 2008 9:48 AM
  Subject: Re: section 1 & the civil rights act; non discrimination as the meaning of section 1 & other oft repeated fallacies.


  I have been following this exchange with great interest.

  I wonder if I might pose a question for those who believe that the evidence supports the antidiscrimination-only interpretation or construction of the privileges or immunities clause.  How is this reading squared with the text itself?  Clearly, the text does not explicitly state the operative command in terms of a prohibition against discrimination.  I take it on the antidiscrimination reading, states have the power to make and enforce laws that abridge legal rights that would be considered "privileges or immunities of citizens of the United States" so long as the abridge those rights for each and every citizen.  But this does seem, on the surface, to be directly contrary to the text.

  I understand that arguments might be made based on "original purposes" or "original expectations about applications," and those topics are clearly important.  But the question I am trying to ask is limited to the text and its linguistic meaning or semantic content.

   
  On 7/3/08, michael curtis <curtism at bellsouth.net> wrote: 
    From: "michael curtis" <curtism at bellsouth.net>
    To: "Rosenthal, Lawrence" <rosentha at chapman.edu>; "Volokh, Eugene" <VOLOKH at law.ucla.edu>; <CONLAWPROF at lists.ucla.edu>
    Subject: Re: Incorporation and only non discrimination; the Civil Rights Act and the 14th discussed
    Date: Wednesday, July 02, 2008 9:57 PM

    RE: Incorporation and "integrity"

    Corfield is not at all clear that the Art. IV clause is simply a provision against discrimination.  The references to it proecting those rights that are fundamental and belong to all citizens of free governments--if I am recalling the language correctly--is hardly a clear description of rights which can be taken away so long as they all are deprived of them.  Paul however does clearly read the clause as merely an anti-discrimiantion measure.

    The civil rights act provides that all citizens without regard to race or previous condition shall have  "the FULL and equal benifit of all laws and provisions for the security of person and property."  The rights in the bill of rights had often been described as laws for the security of persons and property.  e.g. Kent & Dred Scott--referring to rights in the Bill of Rights as rights of person and property.  Then we know that a substantial number of Republicans believed American citizens were entitled to Bill of Rights liberties against their states, before the 14th..  For these people, a provision guaranteeing to all citizens the full and equal benefit of laws for the security of person and property would be consistent with liberties in Bill of Rights that states would be required to respect.  A major complaint before the Civil War was state failure to respect constitutional rights of American citizens including free speech.  Senator Dixon in the 39th Congress says we have in the Civil Rights Act a provision guaranteeing free speech throughout the United States.  That is consistent with the reading I suggest.  There are some similar newpaper comments on the Civil Rights Act protecting free speech,but not the right to vote.  This clearly goes beyond race or caste discrimination.  Both Bingham (the main author of section 1) and James Wilson (chair of the Judiciary Committee) refer to the Civil Rights Act as an effort to enforce the Bill of Rights.  Bingham says we need a constitutional amendment to do that.

    Then look at the argument--the claim cited from congressmen in the 39th Congress is that section 1 is identical to the Civil Rights Act.  The assumption is that the Civil Rights Act is simply a non-discrimination provision.  Therefore, the argument goes, section 1 is simply a non discrimination provision.  So for example, if a state were to decide all civil and criminal cases by trial by battle or ordeal, there would be no violation of section 1 because there would be no discrimination.  All would be treated alike.  But this is not consistent with the understanding of due process of law in  1866.  But look where that leaves us. Some how the Civil Rights Act incorporates due process--because it is identical several speakers say to section 1.  But if so, it is not merely an anti-discrimination provision.  Where is this due process clause in the Civil Rights Act--well one good place to look would be in the "FULL and equal [why not just equal] benefit or all laws and provisions for the security of person and property."  The Freedman's Bureau Bill refers to the full and equal benefit of laws and provisions for the security of person and property INCLUDING THE CONSTITUTIONAL RIGHT OF BEARING ARMS.  [all quotations are from memory] The reference to arms is added as an amendment.  Sen. Trumbull says the amendment is fine but does not change the meaning--ie it was already there in the full and equal language.

    I don't think Prof. Harrison (or perhaps Professor Currie) discuss these problems with the nothing but discrimiantion argument.  Why does not all this do considerable damage to the mere non discrimination argument.  If the civil rights act is just about non discrimination a state could deny process rights so long as it did for everyone.  Note that most of the statements relied on do not say the p or i clause = the Civil Rights Act.  They say section 1 =s the civil rights act.  

    Professor Rosenthal's quotation from Stevens is accurate and helps his case, but Stevens also says the provisions of section 1 are all in the Declaration or Constitution but these provisions don't limit the states.   I agree that what he says offers something to both sides of the debate.

    I also agree with Prof. Rosenthal that even if one is not convinced by the substantial evidence for incorporation, since there is substantial evidence at this point stare decisis would count in favor of retaining as much incorporation as we have.

    Michael Curtis
      ----- Original Message ----- 
      From: Rosenthal, Lawrence 
      To: Volokh, Eugene ; CONLAWPROF at lists.ucla.edu 
      Sent: Wednesday, July 02, 2008 7:26 PM
      Subject: RE: Incorporation and "integrity"


      Justice Thomas's reliance on Corfield as shedding light on the proper reading of the Fourteenth Amendment may well cut against incorporation.  

       

      Corfield read the Privileges and Immunities Clause of Article IV as a nondiscrimination provision with respect to substantive rights, rather than an independent source of substantive rights.  So did the Supreme Court in Paul v. Virginia, a case decided during the ratification process for the Fourteenth Amendment that sheds pretty good light on the meaning of privileges and immunities at that time.  For that reason, Currie and Harrison arguef that the Privileges and Immunities Clause incorporates nothing in the Bill of Rights; it is merely a nondiscrimination provision.  Justice Thomas even cites Harrison's article in his dissent in Saenz.  The view of the Clause as a nondiscrimination obligation has ample support in the legislative history of the Fourteenth Amendment.  Probably the single most frequent understanding expressed about the Amendment was that it constitutionalized the Civil Rights Act, itself merely a nondiscrimination provision.  Or consider what Thaddeus Stevens had to say in response to the charge that granting Congress the power to define "privileges or immunities" would mean that "all state legislation . . . may be overridden, may be repealed or otherwise abolished, and the laws of Congress established instead," Stevens replied:  "Does the gentleman mean to say that, under this provision, Congress could interfere in any case where legislation of a State was equal, impartial to all?  Or is it not simply to provide that , where any State makes a distinction in the law between different classes of individuals, Congress shall have the power to correct such discrimination and inequality?  Does the proposition mean anything more than that?"  What is more, when Corfield listed the rights regarded as fundamental, the right to bear arms  was not mentioned.

       

      That said, I myself lack confidence in the "right" answer on incorporation.  I think the historical evidence is too unreliable and conflicting to permit a reliable conclusion.  That could be reason enough for the Court to hew to its traditional, nonoriginalist approach to incorporation.

       

      Larry Rosenthal

      Chapman University School of Law

       


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      From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
      Sent: Wednesday, July 02, 2008 3:18 PM
      To: CONLAWPROF at lists.ucla.edu
      Subject: RE: Incorporation and "integrity"

       

          As I read Justice Thomas's opinion in Saenz v. Roe, it seems to take the view that "at the time the Fourteenth Amendment was adopted, people understood that ''privileges or immunits of citizens' were fundamental rights" such as those enumerated in Corfield v. Coryell (and presumably at least some of the rights, and perhaps all the rights, enumreated in the Bill of Rights, though that's my own gloss on the opinion).  In fact, in Elk Grove, Justice Thomas expressly said that he "accept[s] that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment," and distinguishes the Establishment Clause solely because it does not protect an individual right.What am I missing here?

       

          Eugene

         


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  -- 
  Lawrence Solum
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