The Original Public Understanding of Privileges or Immunities

Article excerpt

[This soldier] desires to have his supper at your eating house, and as your house is a public one, it is expected at these headquarters that no distinction be made on account of color or race. If this soldier does not receive his meal, and is not treated in the same manner as any of your customers . . . your establishment will be closed . . .1

Unoffending citizens, in the pursuit of their private business, are rudely interfered with, and their houses closed, because they did not choose to admit negroes to their table upon the same footing as white men.2

I. A TEXTUAL ORPHAN

The Constitution tells us more about who we are as a people than its scant four thousand words would suggest. Its structure shows what the Framing generation wanted from government, and what they feared from it. The Amendments help chronicle the beginnings of the great democratization, the Radical moment in the 1860s and 70s, the Progressive moment, and the Executive crises of the mid-twentieth century. The document and its interpretation also tell us about who we are by illustrating the paths we chose not to follow, or perhaps the paths that were closed off from us.

After the end of the Civil War, Americans began to consider questions besides who would defeat Robert E. Lee. The convulsive effect of the Rebellion reached all aspects of American life, and the law was no exception. The entire legal superstructure that developed around African bondage, its badges, and its incidents was either to be destroyed or reconciled to the views of the victorious Union. Slavery, of course, would have to be abolished, but much more remained doubtful or at least questionable. Would the federal government be supreme over the states? Would blacks ascend to full participation in civil society? Would the South remain under occupation forever, with freedmen's rights secured only by the armies of bluecoats in her midst? The answers to these questions were not clear in the immediate aftermath of the struggle.

Soon, though, Andrew Johnson's management of Reconstruction would falter, and the Republican majorities in Congress would place their stamp on constitutional history without him. In a period of dizzying governmental activity, the Radical Republicans enacted sweeping reform - including the first Civil Rights Acts, the establishment of agencies for their implementation, and three constitutional amendments.3 Among these, the Fourteenth Amendment was the clearest effort by Republicans to define the new order of government, and to re-orient individuals and states in their relationship to Washington.

The standard interpretation of the Fourteenth Amendment - as understood by the Supreme Court and most legal scholars - is that the Due Process4 and Equal Protection Clauses5 represent sources of modern liberty.6 Most believe that the Privileges or Immunities Clause7 had no radical or substantive effect at the time of passage, but instead reflected a traditional baseline of rights. Others suggest that the Privileges Clause might have had meaning, but, like a mute Lazarus, its resurrection would make no difference because courts would interpret the Clause to the same effect as the other Clauses in Section I.8

These standard approaches - like many rules of thumb - are ideas that almost make sense. Unfortunately, because they are so reliant on law office history, misconceptions, and false dichotomies they ought to have fallen into disuse. One might conceive of a system in which the Constitution may be parsed to find those portions that are important (presumably the Commerce Clause) and those that are not (presumably the Congressional Adjournment Clause), but we cannot presume its authors to have written superfluous Clauses that ratifiers understood to be irrelevant. Consequently, if there is an appropriate and discernible reading of the Privileges or Immunities Clause, we should seek it with zeal.

Some believed that McDonald v. …