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

Sat Jul 5 17:36:54 PDT 2008

In response to Professor Solum's query, the best statements of the understanding of the Privileges and Immunities Clause as a nondiscrimination requirement are: David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 342-51 (1985); John Harrison, Reconstructing the Privileges and Immunities Clause, 101 Yale L.J. 1385, 1397-432 (1992).  I doubt I can improve on what Currie and Harrison wrote, the most popular antebellum treatises described it as a nondiscrimination provision, as did the Supreme Court in its 1868 decision in Paul v. Virginia.  As I understanding, the "privilege" or "immunity" was the right to be treated the same as every other citizen of each state with respect to "fundamental" rights.  To be sure, Professor Curtis is correct that many thought that the Privileges and Immunities Clause granted substantive protection, although that does not necessarily support incorporation of the Bill of Rights.  Cooley's 1873 second edition said this about the brand new Fourteenth Amendment Privileges or Immunities Clause:  "Although the precise meaning of "privileges and immunities" is not very definitely settled as yet, it appears to be conceded that the Constitution secures in each State to the citizens of all other States the right to remove to, and carry on business therein; the right by the usual modes to acquire and hold property; and to protect and defend the same in the law; the right to the usual remedies for the collection of debts and the enforcement of other personal rights, and the right to be exempt, in property from taxes or burdens which the property, or persons, of citizens of the same State are not subject to."  What Cooley had to say seems to be pretty good evidence of original public meaning (the Heller opinion seems to place considerable weight on Cooley's treatise), but it sure doesn't seem to be describing incorporation of the Bill of Rights.

For me, the point that comes through most clearly is the lack of agreement on the original meaning.  The late David Currie found "some support in the legislative history for no fewer than four interpretations of the . . . Privileges and Immunities Clause: it would authorize Congress to enforce the Privileges and Immunities Clause of Article IV; it would forbid discrimination between citizens with respect to fundamental rights; it would establish a set of basic rights that all citizens must enjoy; and it would make the Bill of Rights applicable to the States."

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Lawrence Solum
Sent: Thu 7/3/2008 6:48 AM
To: michael curtis
Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: section 1 & the civil rights act;non discrimination as the meaning of section 1 & other oft repeatedfallacies.

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

	------------------------------------------------------------------------------

	  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
Associate Dean for Faculty and Research, John E. Cribbet Professor of Law, & Professor of Philosophy
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