>>> Item number 350, dated 93/12/03 17:03:04 -- ALL
Date: Fri, 3 Dec 1993 17:03:04 -0600
Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET>
Sender: Legal History discussion list <H-LAW@UICVM.BITNET>
From: cfcrw@uxa.ecn.bgu.edu
Subject: Fourteenth Amendment: Orig. Intent
While my posting on First Amendment is making but slow headway in
enticing H-Law into discussion, why not try a second installment in the way in which original intent thought is not always hardcore conservative but can also be extraordinarily liberal (modern sense).
I suspect it is not commonly known, even among those fool hardy enough to read my American works, that there were actually three textuallybased constructions of the XIVth Amend. Privileges or Immunities clause from the 1860s and 1870s that would have accomplished substantial civil rights agendas (in addition, that is, to the _Cruikshank_ version that gutted the P or I clause. These three different perceptions of the language and their implications are one of the hardest and most instructive exercises that you can put students through in an American legal history class.
First, the XIVth Amend through the P or I clause: "All personsborn or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor . . . ."
Preliminary Comment 1: all three of these original constructions take the text seriously and put value in the omission in the privilege or immunities clause of the privileges or immunities of citizens of a state, when the preceding clause had just defined two kinds of citizens. Preliminary Comment 2: note that original intent in this context focuses on the text alone. It is unrealistic to think that nineteenth century original intent would be the original intent of a modern social historian prior to the acceptance of modern social history. One must also remember the then still current prohibition of using legislative history as _probative_ of meaning of a statute or the constitution (as differentiated from suggestive of meaning. Meaning 1. P or I 'of citizens of the Unites States.' In the first meaning, the clause 'of citizens of the United States' is used merely as an identifier of a person. Thus, if one establishes that an individual is a citizen of the United States, then any privilege or immunity he might have, from either federal or state law, would be protected by the amendment. That would mean that the federal government would enforce state liberties when the state defaulted in that duty, so that the actual liberties protected by the amendment would vary from state to state. Since the state cannot abridge by laws its own liberties, no state could lower the 1868 definition of its own liberties. And the equal protection clause would make sure that Blacks and Whites would be treated equally. This meaning accords strong respect for the differences among the states and would not establish a core body of rights common to all U.S. citizens, but would indeed have accomplished much of civil rights purpose of the amendment.
Meaning 2. P or I 'of citizens of the Unites States.' In the second meaning,
the clause designates a particular class of liberties. Eschewing any test
of fundamentality of a right, it adopts an 'existence or protection' test
for determining which rights are thus designated by ascertaining which rights
a person derives protection for from the federal government. Those rights
would then be applied in like manner against the states. Thus, if I had a
right to speak free from federal congressional interference, I would now have
the same right against the state legislature. Lawyers will recognize this as
related to present-day incorporation through the due process clause, but this
differs in requiring no showing of fundamentality. It would have incorporated
immediately all of the first eight of the Bill of Rights in manner and
form as
applied against the federal government, but now limiting state action in the
same rigid manners in which the federal government had been limited (with, of
course, consequent anomalies, because the federal government was not
empowered to take up the slack of reasonable regulation.) This meaning would
establish a uniform body of rights, but would have left no room for discretion
in the judiciary about which rights were protected or the degree to which
they were protected (as much as possible in the latter). Oh yes, in addition
to the incorporation action, this would likewise have provided a textual
basis to Crandall rights, which had been floating since 1868 as non-textual
rights.
Meaning 3. P or I 'of citizens of the United States.' In the third meaning, the clause is important because U.S. citizenship has been established as the primary citizenship. P or I of state citizens is not mentioned, because (sorry, are not mentioned) because state citizenship was not merely incidental. This meaning thus uses fundamentality as a test, but in the sense of important (not in the modern sense of merely being a tag for what is in fact protected). Thus, any important privilege or immunity will be protected, because federal citizenship is so important, and the privileges or immunities of any two U.S. citizens will be absolutely identical, regardless of where they live. The two examples explicitly given of differences derived from living in one place rather than another are those over which government would have no influence: the weather (yes, said thus) and the diligence of officials and friendliness of our neighbors. This is obviously a radical republican, thoroughly nationalisticview of the clause.
Commentary: You can get each of these three substantial civil rights readings out of the words themselves; each is extraordinarily logical and textuallybased. I think it is probably the best exercise in the ambiguities of documentary construction, capped by the meaning to be found in _Cruikshank_ which slightly less logically makes the p or i clause a repetition of the Supremacy Clause, thus making it useless in litigation: and so the p or i clause remains today, leaving us mucking around with the oxymoron of substantive due process.
And yes, all of these meanings were elaborated in the 1860s and 1870s, all elaborated by people who were textualists. Warning. I do teach this in class, but it consumes more than one class session always. I think it is worth it. A clearer mind might be able to convey the thought in less time (or in less space than here.
Does anyone know of a different textualist meaning? Four is already quite enough. Discussion welcome.
Robert C. Palmer HISTW@jetson.uh.edu
History and Law
University of Houston
>>> Item number 361, dated 93/12/08 19:51:45 -- ALL
Date: Wed, 8 Dec 1993 19:51:45 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Fourteenth Amendment: Orig. Intent
I can personally testify that Dr. Palmer's discussion of the three possible interpretations of the 14th Amendment is INDEED one of the hardest and most instructuve exercises for a legal history student. It does help students to realize how mutable the law can be when based on textual analysis. Hugh Davis Graham gives a good example of the process of textual "mutation" ( (my wording) in his book CIVIL RIGHTS AND THE PRESIDENCY. He traces the development of Civil Rights law during the period of 1960-1972 as the laws are written by Congress and then interpreted by both the Supreme Court and the federal bureaucracy. The same words are interpreted to mean very different things and to call for very dissimilar policies. Legal text can be interpreted very differently for various individuals with separate values and political agendas: to take examples from Dr. Palmer and the 14th Amend., to simply enforce existing state rights, to establish a uniform body of rights at both the federal and state levels, or to create a primary U.S. citizenship.
Jan S. Rosin
University of Houston
HISTP@JETSON.UH.EDU