Kurt Lash & Alan Gura, "Does the Fourteenth Amendment Protect Unenumerated Rights?"
Professor Lash graduated from Yale Law School and served as law clerk to the Honorable Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit. Afterward, he joined the University of Illinois from Loyola Law School Los Angeles, where he served as the James P. Bradley Chair of Constitutional Law. His recent book, The Lost History of the Ninth Amendment, was published in 2009 by Oxford University Press. Cambridge University Press will publish his second book, American Privileges and Immunities: Federalism, The Fourteenth Amendment and the Rights of American Citizenship.
Alan Gura’s practice focuses primarily on constitutional law. Prior to founding Gura & Possessky, PLLC, Mr. Gura began his career by serving as a law clerk to the Honorable Terrence W. Boyle, United States District Judge for the Eastern District of North Carolina. Subsequently, as a Deputy Attorney General for the State of California, Mr. Gura defended the State of California and its employees from all manner of lawsuits, in state and federal courts, at trial and on appeal. Thereafter, Mr. Gura entered the private practice of law with the Washington, D.C. offices of Sidley & Austin. In February 2000, he left the firm to serve for a year as Counsel to the United States Senate Judiciary Committee, Subcommittee on Criminal Justice Oversight.
Presented by the Federalist Society on January 25, 2017.
Transcript
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Hill:
Hello. How's it going to doing? My name is Jordan Hill for those of you who don't know me. I'm the Programming director with the Federalist Society and it is my extreme pleasure. Uh, to have this event. Uh, we tried to have it last year but it was interrupted because somebody came, I think he's jobless now, so it doesn't matter. Um, the President of the United States. Uh, and we're here for a really interesting debate. Um, does the 14th Amendment protect unintegrated rights? So I'm excited to introduce to you all Professor Kurt Lash and Mr. Alan Gura. Professor Lash graduated from Yale Law School and served as a law clerk to Robert R. Beezer of the U.S. Court of Appeals for the Ninth Circuit. After clerking he joined the University of Illinois from the Loyola, Loyola Law School of Los Angeles or he served as the James P. Bradley Chair of Constitutional Law. His recent book, American Privileges and Immunities: Federalism, the 14th Amendment, and the Rights of American Citizens, was published in 2014. Is that right? [inaudible] Mr. Alan Gura founded Gura & Possessky P.L.L.C. and his practice focuses primarily on common law. He began his career by serving the Honorable Terrance W. Boyle, US District Judge for the Eastern District of North Carolina. Subsequently, he served as the Deputy Attorney General for the state of California, where he defended the state and its employees from laawsuits in both state and federal court. After, his directions to private practice went into the office in DC. In February 2011, he left the burns to serve as a four year as counsel to the U S Senate Judiciary Committee, Subcommittee on Criminal Justice and Oversight. So please help me in welcoming Professor Lash and Mr. Gura.
Lash:
Oh, this is going to be fun. I like, I like the hum. I kind of felt like if I get up here tonight, if I go, Hey, thank you. Thank you for having me. I think the, Alan, thanks for joining me up here so we can continue our ongoing conversation about unenumerated rights and the Constitution, today focusing on the 14th Amendment. A pleasure to be here. Pleasure. Have a chance to talk about, um, anything other than Donald Trump. This would be great. We can actually focus on something else for a second here. Um, it is an ongoing conversation conversation. We haven't convinced each other yet, but you know, who knows today, today it could be the day. Um, but we're continuing to explore and continuing to, um, um, to invite others to explore the history of the Constitution. And it's a, it's a topic that I think is very much in play with the new new possibilities on the Supreme court. So I'm so glad to be here and, and be a part of what could be a historic edition. Um, I have to keep my comments, uh, to 10 minutes. So I just want to dive right in and give you my bottom line and then I'll, I'll talk about how I support that particular position. Um, I believe the 14th Amendment binds the States to respect enumerated constitutional rights, uh, that includes rights enumerated in the Bill of Rights and incorporated against the States by way of the Privileges or Immunities Clause. But it also includes other enumerated rights, like habeas corpus or the Comity Clause of article four. All unintegrated rights, however, are left to the political troll, a control of the people of the States subject only to the requirements of due process and equal protection. Why limit the privileges or immunities clause to just constitutionally enumerated rights applicable against the States?
Lash:
Um, now I'll talk about how I arrive at that position here in a moment, but I want to begin by kind of pointing out the nature and the precise nature of this debate. No one actually believes in judicially enforceable unenumerated rights. Okay. Not, not really, uh, the claim always, even though even the strongest advocate of unenumerated constitutional rights grounds their claim in some text in the Constitution. So the enumerated rights provision in the Constitution, uh, for example, the Ninth Amendment, or maybe it's the Due Process Clause or maybe it's a Privileges or Immunities Clause, um, and then building upon that enumerated right arguing in favor of a more expensive reading of that right to include, uh, maybe natural rights or maybe a common law rights of some, some form or another. So the argument isn't really about whether or not there are unenumerated rights. No one really believes that that's part of the practice of American law. Instead what we're talking about, um, involves the issue of interpretation. How ought we interpret those specific enumerated provisions, which actually are in the constitution. And answering that question is going to require a theory of interpretation. I don't think we're going to come to any fundamental or absolute conclusion regarding, um, the proper theory of constitutional interpretation. But I think that both Alan and I agree at least on this, that historical context or the original understanding or the historical understanding of constitutional clauses is at least relevant to understanding how they ought to be applied in contemporary, contemporary jurisprudence. So what I want to do is I want to focus my comments today on the history of the Constitution and historical understandings of a potential text in the constitution. That might be read to raise unintegrated, unintegrated rights.
Lash:
Now I know that we're focusing today on the fort, the 14th Amendment. Yes, it's in there. Um, but I also know that at some point, uh, today it's inevitable that the Ninth Amendment will come up. So I just want to say a couple of very brief words about the Ninth Amendment. Some, uh, some justices and also some theorists have read the ninth amendment of the constitution as somehow justify judicial recognition and enforcement of unenumerated rights. Um, I, uh, the historical evidence is against that. Uh, there isn't a single court or constitutional commentator that read the Ninth Amendment for the time of its adoption going forward as a, as a source of under numerated individual rights, uh, for about the first 150 years of the Constitution. Um, beginning with James Madison, uh, the man responsible for drafting the clause, um, in his comments immediately after ratification when he was engaged in the debate over the Bank of the United States, um, he read the Ninth Amendment as working alongside the Tenth in reserving to the people of the States, the right, uh, to local self-government. Basically. Um, the Ninth and Tenth Amendments were federalism provisions that were understood as limiting the power of, of the national government and maximizing the political power of the people in the several States. Um, and so that reading dominates for the first 150 years of the Constitution. And nobody says, nobody says to the contrary. Um, for example, during the antebellum period, even though abolitionists were citing any sorts of law they possibly could in favor of freedom, um, the freedom of the slaves, they never once raised the Ninth Amendment as a possible source of, of natural rights. On the other hand, the seceding States cited the Ninth Amendment in support of the state's rights to exit the union if they thought that the federal contact had been, had been violated. So from the time of the founding all the way to the Civil War, the Ninth Amendment remains linked to the Tenth as representating Federalism, uh, and limited federal powers, so that, um, wouldn't historically be understood as a fount of unenumerated rights until the Civil War.
Lash:
Then maybe things change, right? Uh, we have a new, a restructuring of federalism. Obviously you're going to get new provisions into the Constitution that are binding the States. So maybe now we have a clause of the changes, the original protection of state autonomy. Um, the first potential source for opening up the States to being liable to claims of under numerated rights would be the Due Process Clause. You know that the jurisprudence of the Supreme Court embraces the doctrine of substantive due process and has expended that doctrine to embrace a number of unenumerated rights. I won't say a great deal about that. I think most scholars are skeptical of that reading of the Due Process Clause. Um, I don't think even the Supreme Court is convinced by that particular reading. I think, um, just from the comments, from the comments in oral argument in the, in the Second Amendment, I think the Court sticks by substantive due process as a matter of starting decisis more than any kind of argument based upon the historical understanding of the 14th Amendment. Um, it was understood throughout and certainly by the majority of the members of Congress and the majority of the public at the time of the civil war as being a procedural clause and not embracing something to due process and idea that develops right in the late, late 1800s and into the 20th century. Um, so instead, but that doesn't mean that scholars and commentators have given up on the idea of unenumerated rights. It just means for the past couple of decades, the attention has moved away from the Due Process Clause as justifying substantive due process. Um, and move instead towards the Privileges or Immunities clause. Maybe the Court's jurisprudence and enforcing both enumerated and unenumerated rights against the States shouldn't be grounded in the Due Process Clause, but actually should be grounded in this initial provision during the second sentence of Section One. Um, whereby States are bound to respect the privileges or immunities of citizens of the United States.
Lash:
And so that's where I want to focus the remainder of my comments. I would, uh, my position would be the history just doesn't support a ninth amendment reading or a due process reading of substantive and enumerated rights. But what about the privileges or immunities clause? Again, as Jordan pointed out a couple of, a couple of minutes ago, I recently published a book with Cambridge press. I'm exploring the history of the privileges or immunities clause. And I think that the evidence, uh, very strongly suggests that it referred to the rights of citizens that were actually listed in the citizens document and the citizens constitution, um, and did not refer to unenumerated rights. So in my final minutes, how many of them? I should out and just throw a red card out. Um, I'll just briefly trace what I think the historical arguments are regarding the Privileges or Immunities Clause, uh, turn the podium over to Alan. Um, if you wanted to, you could Google, um, of the 14th Amendment, Section One. And just to look at the language. I'm going to talk a little bit about it. Um, "no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States". Um, we know that the, the man who wrote that clause who wrote section one of the 14th amendment, John Bingham, a representative from Ohio, um, intended to draft a provision that forced the state to respect rights enumerated in the Bill of Rights, especially the first eight amendments. He said this over and over again. So much so that I don't think there's any really any dispute that that was his major goal. He declared it to be his major goal. Um, he believed that all constitutionally enumerated rights, uh, counted as privileges or immunities of citizens of the United States and that States should be bound to respect those rights.
Lash:
And that had not been the case. Of course, for the, uh, the first decades of the Constitution. The of rights only bound in federal government didn't bind the States. He believed that should change. Um, he focused on the first eight amendments. But in his arguments he said those were, those were the main representatives of the privileges or immunities of citizens of the United States. There were others. There are other enumerated rights, like the rights to habeas corpus, which he talked about. He talked about, uh, he and others talked about the Comity Clause and the rights of Article Fou,r privileges and immunities various rights that were actually enumerated in the text of the constitution, which now as of right, ought to be applied against the States. Okay. So that was his vision. Um, for the, um, for the privileges or immunities clause, he ultimately chooses to use language for it. That has roots going all the way back to the Louisiana Session Act of 1803, an act that spoke with the privileges and immunities of citizens of the United States. Uh, Bingham's hero, Daniel Webster described those rights as referring to only constitutionally enumerated rights and not as referring to unenumerated rights, like the right to own a slave. Webster was very much opposed to that kind of reading of privileges, privileges or immunities. Now again, so, so Bingham presents this idea and I think that there's substantial evidence supporting, um, uh, public. Also, we need priveleges and immunities, including these particularly important listed rights, freedom of assembly, freedom of petition, freedom of speech, all of which had been seriously abused and bridged by the slave States, um, during the period of that development. But also privileges and immunities did include the Comity Clause of Article Four and that clause is often raised as a potential source of unenumerated rights as well.
Lash:
So I just wanted to spend a second on that. Um, Article Four talks about the privileges and immunities of the citizens of the Southern states. Um, the clause during the antebellum period was not understood as a source of substantive privileges and immunities. Instead, it was read as a kind of equal protection clause. You may have already studied it if you studied Corfield against Coryell maybe for like 10 seconds in constitutional law, a circuit decision, uh, drafted by justice push rod and Washington while he's flooding on circuit. Um, the privileges and immunities of citizens in the several States that had to be respected by States simply meant that when a visitor came from another state, you had to give them a degree of respect. You had to allow them access to a limited set of rights that you were granting your own citizens. Um, so if you were letting your own citizens pursue the right, um, to trade and selling shoes, then you had to allow visitors when they came from other States, the right to pursue a trade in selling shoes. But it wasn't an absolute economic right. You could deny everybody the right to sell shoes if you wanted to. It's just that if you are allowing that right to your own citizens and you had to give equal access to it, uh, to from out of state. So is it kind of an equal treatment clause? And this is how push rod Washington interpreted it in, um, in Corfield. And that's how, uh, Joseph Story interprets it in his commentaries. That's how Chancellor Kant interprets it in his commentaries. It's really a very solid body of case law that treats Article Four as a kind of equal treatment clause. So yes, it becomes bundled up and it becomes one of the enumerated rights of citizens of the United States that's protected under the 14th Amendment. But what's protected is the right to equal treatment. Um, it doesn't, uh, somehow transform these equal protection rights into substantive substantive rights.
Lash:
So you have this bundle of enumerated privileges and immunities, but that is involving them wanting to do. He also finished out Section One, uh, with the protection of what he believed were natural rights. He believed that all persons, not just citizens, the language changes in this part of Section One. He, along with most other Republicans, actually I think all Republicans during this period of time, uh, believe that all persons of were do, have the rights of due process that no person, even if they weren't a citizen yet, no person should be denied life, liberty and property without due process of law. And all persons should receive the equal protection of the law. And he believed the Black Codes of course, were violating that, that protection of life, liberty and property and that equal protection of the ball. Um, and so along with the other Republicans, he wanted to add provisions that provided everybody, all persons, those particular, um, natural natural rights. Um, so ends up with a section one that gives you a certain collection of citizenship rights. Those that are listed in the Constitution and a certain set of natural rights of the procedural rights of due process and equal protection. And that's all he does. Um, there's no effort and there's certainly no, um, a desire among moderate and conservative Republicans, um, to give the federal government power over the entire, unenumerated subject of civil rights in the States. They continued to believe in Federalism. They believe that Federalism was an important guarantor of liberty. It was Federalism, um, that the Northern States were using to free slaves that escaped from the South and made their way North. This idea that there should be these local communities, a broader visions of liberty was something that continued to be important to, uh, uh, to the framers of the 14th Amendment. And so instead they simply wanted a, the moderates wanted a moderate clause and a moderate expansion of liberty.
Lash:
And I'll close on this cause I know I'm, I'm, I'm out of time now. Um, this wasn't just an intention by John Bingham. It wasn't just an idea or an intention expressed in Congress. I think you can also find evidence that the public understood the clause in this particular way. And I'll end my comments with a quote from the very first case to interpret the Privileges or Immunities Clause that I've managed, that I've managed to find. Um, it's an 1871 case. You're about three years out, right? 1871 case, uh, from the state of Ohio guards against McCann and Supreme court judge John Day described the Privileges or Immunities Clause, um, the following way. Quote, this case involves the equity as to what privileges or immunities are embraced in the inhibition of this clause, Privileges or Immunities Clause. We're not aware that this is as yet been judicially settled the language of the clause, however it taken in connection with other provisions of the amendment, and of the Constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from or recognized by the Constitution of the United States. A broader interpretation opens into a field of conjecture, limitless as the range of speculative theories and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment. It just refers to privileges and immunities listed in the Constitution itself. Um, so the clause is not an invitation to limitless conjecture. Um, it's a conclusion that if a right is important enough to be listed as the Constitution, it is important enough to be applied against the States, all other unincorporated rights are live to the people in the States to decide for themselves as a matter of their political retained rights. That also is a right, um, left undisturbed and preserved by the 14th Amendment. And now, Alan take it away.
Gura:
Alright, thank you so much for coming here. I kind of like this formulation that Professor Lash started with. That, um, even the unenumerated rights that, that I and some of my colleagues would argue for are essentially numerated because we are basing our arguments upon the text of the Constitution. That is nobody makes the argument that judges have the authority to simply conjure rights because that's what comes with the road where the gavel rather that uh, the arguments aren't grounded in text. Uh, and my arguments today are certainly grounded in a constitutional text and I'd be happy to explore what I think that texts means and why I think it's, it's promises and limitations might be. I'd like to start though by making another observation, which I think oftentimes eludes a lot of parties in debate. That is that as far as the Supreme Court's current position on privileges or movies, if you look to the slaughterhouse cases, which is unfortunately in effect today, there was unanimity, it's a five-four case to be sure. The Court was deeply divided, but there was unanimity at least on on one item, which was all nine justices agreed that in some measure the Privileges or Immunities Clause guaranteed unintegrated rights, the majority, uh, opinion, uh, had sort of a nonsense list of these rights, rights that arise from the formation of national governments and, uh, that owe their existence to the, the formation of that government.
Gura:
So you have the right to the Navy's protection on the high seas. You have the right to take a tour of the Bureau of engraving and printing, I guess on 14th Street, right to visit the sub treasuries in Washington. Very odd, uh, conception of what we fought the civil war over. But nonetheless, those rights, uh, whether you believe them to exist, the right to use the navigable waterways of the United States, those are unenumerated to be sure. They're not listed anywhere in the Bill of Rights or anywhere else. And of course, the dissenters, uh, believed that the plaintiffs in that case had asserted a livelihood, right, of sorts against the monopoly that Louisiana would impose against them. So you had nine justices disagreeing, but when you at least they knew or understood that, that there are some uninterrupted rights that are there. Um, so, uh, let's see what, uh, which side, if any was, was correct and whether or not unenumerated rights really are or are not within this text guaranteeing privileges or immunities of citizenship. Now, the important thing, uh, to start with is to understand the language. Privileges and immunities were synonymous with rights. That was the case in dictionaries. It was the case in common usage. Um, well, here's what Justice Thomas said in his McDonald opinion: the two words standing alone are paired together where used interchangeably with the words, rights, liberties, and freedoms, and had been since the time of Blackstone. And Justice Thomas has no shortage of citations, he could have gone longer. Um, he goes on to tell us that the fact that a particular interest was designated as a privilege or immunity rather than a right, liberty or freedom revealed little about its substance. Blackstone, for example, use the term privileges and immunities to describe both the inalienable rights of individuals and the positive law rights of corporations. And then citing Lash, the origins of the privilege immunities clause. Nice article. And the Georgetown Law Journal, uh, Justice Thomas told us that the nature of a privilege or immunity, this is very depending on the person who per entity to whom those rights were assigned. Um, and I would agree with that. And, and uh, he cites the wonderful article that Professor Lash left us with. So which rights were the rights guaranteed in the 14th Amendment? We know the term means rights. Uh, is it, uh, uh, rights in general? Is it the specific rights that had been otherwise set forth in the, in the Constitution? Uh, let's see. Well, those words do appear elsewhere in the Constitution. Of course, Article Four, Section Two, has professor lash referred to and everybody refers to today as the Comity Clause. Comity: c-o-m-i-t-y not comedy. Um, uh, not a, not a source of great fun, uh, although it is still litigated and actually is once in a while applied in cases that real people bring today.
Gura:
Um, and uh, there that provision Article Four, Section Two tells us the States have to respect the privileges and immunities of citizens in the Southern States. And um, the Supreme Court did get, or not the Supreme Court. Uh, at least one Supreme Court justice did get an early chance to define that language. And of course that was Justice Bushrod Washington, who I believe was George's nephew, in Corfield vs Coryell a writing circuit in Pennsylvania. And he told, he told us the following, and I think this is very important language so forgive me, I'm going to have to read at you for at least a few seconds. We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all three governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union. What these fundamental principles are. It would perhaps be more tedious and difficult to enumerate. They may, however, be all comprehended under the following general hedge protection by the government, the enjoyment of life and liberty, with the right pursue to acquire and possess property of every kind, and to pursue and obtain happiness and safety subject nevertheless to essentially regulation in the interest of the public good. And then realizing this is quite an expansive description Justice Washington then gives us some examples nonetheless, the right of a citizen of one state to pass through or to reside in any other state for purposes of trade, agriculture, professional pursuits or otherwise; to claim the writ of uh, the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take hold and dispose of property, either real or personal; and an exemption from higher taxes in positions that are paid by the others, uh, citizens of the state.
Gura:
And he also throws him the elective franchise for good measure. Now it's true that if you read, uh, this provision, um, uh, straight as Justice Washington did and as people do today, it doesn't apparently require the States to extend any particular rights, but to the extent that States extend the rights of citizens in a free government, um, uh, they have to extend them to all comers. Now, this, the South plainly did not do an a period before the Civil War. There's no dispute about that. I need hardly recount the history, but, uh, there were constantly problems, uh, both with, uh, freedman, uh, free Blacks coming to the South for some purpose, finding themselves subjected to all kinds of deprivations, as well as, of course, um, uh, various problems that a white Reuther's had in advocating against the slave power when they were there. In any event, more than the point, and this is very important for discussion, is as far as abolitionists legal thought was concerned in the 19th century, um, uh, it was standard fare that Article Four, Section Two did impose positive legal obligations on the States, which in their view, the States were not following. Uh, now, interestingly, uh, and I don't have the time to, to review Joel Tiffany and various other scholars on this point. But what's interesting though is that at least on this point, uh, slavery advocates agreed with the abolitionists. That is the agreed about more or less the definition of privileges and immunities. Here is what the Supreme Court said in Dred Scott, a case of some notoriety then as today, uh, arguing against the concept that African-Americans could be citizens. The Supreme Court majority wrote that if African-Americans were so received, that is as citizens, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations related to uh, to Black people. It would give to persons of the Negro race who were recognized as citizens, any one state of the Union, the rights to enter every other state, whatever they pleased singly or in companies without passer passport and without obstruction to sojourn there as long as they pleased to go where they pleased at every hour of the day or at night without wall station, unless they committed some violation of law for which a white man would be punished.
Gura:
And it would give them the full liberty of speech in public and private upon all subjects upon which its own citizens might speak, to hold public meetings upon political affairs, and to keep and carry arms wherever they went. Interesting list of privileges and immunities and notice what that list contains. It contains some things that we recognize from the First and Second Amendments, right? Uh, public affairs meetings, speaking, uh, carrying guns. It also includes some things that we might recognize as rights, but are definitely not enumerated in the bill of rights. Sojourn, interstate travel, um, uh, and so on. So, you know, obviously your right to travel, not enumerated, uh, right to speak and hold public meetings, enumerated. Altogether, uh, and at least some consensus that, um, that this is what privileges and immunities means, uh, in 1857 and abolitionist engaged with a Dred Scott opinion, they debated it. Um, and in fact, uh, while they didn't find much to like about the, uh, the opinion there was, um, uh, some, uh, feedback from the antislavery, um, uh, advocates who said, well, at least this is enumeration of privileges and immunities. At least they got that right. And by the way, this is exactly what we're, uh, we're, we're complaining about. There was an interesting speech given by a Massachusetts State Representative Wells reprinted in The Liberator. Um, you can go read it yourself. It basically recites, the Dred Scott language of privileges and immunities back as a positive example of what it is that people are unjustly deprived owing to slavery. In any event the Civil War is fought, you know the outcome there: the South loses. It's time to draft some constitutional amendments to resolve the problems of Dred Scott, the 13th amendment, and slavery. But that doesn't really, uh, do enough because we still have the problem then of how are the former slaves to be treated in the South and are they in fact, citizens? Are they citizens of their States?
Gura:
Are they citizens of the United States? Uh, and if so, what does that mean? And that's why you have not just the citizenship clauses but also the um, the uh, the uh, uh, the Privileges or Immunities Clause, the Due Process Clause and of course the equal protection clause to follow that to tells the States what they can and cannot do with people and the citizens. Now, what's interesting here, uh, if you look at the text of the Privileges or Immunities Clause, as Professor Lash noted, I it does bear some resemblance to um, to the article four, section two, right? And in fact, here's what justice Thomas has to say. I don't think this is too radical an observation. The text of this provision resembles the privileges where we use clause is referencing article four, section two. And it can be assumed that the public's understanding of the ladder was informed by its understanding of the former. Uh, and I submit to you that the dictionary definitions that at the time the public's processing and engagement with Dred Scott and indeed with Corfield versus Coryell were absorbed. And this is what the language meant in the, uh, common usage. Uh, but there's also something else going on here. And as we have to remember what the intent of the 14th amendment was, what were the problems that were supposed to be addressed by the 14th amendment? While Congress had passed in 1866, the civil rights act and the civil rights act was enacted, uh, to deal with the way in which the freedman were being treated in the South. They were not allowed to freely, uh, offer and accept their services, uh, for labor. They were often times tied down to the same old plantations and all kinds of oppressive labor contracts. It was basically the economic institution of slavery that was slowly being reimposed, even if the formality of one person owning another was dispensed with. And so the Civil Rights Act of 1866 tells us or told, uh, the States at least, that there were no longer to, um, to violate the rights of citizens United States in this manner. Uh, people had the right to make an enforce contracts to sue these parties and give evidence. This starts to sound like, like Corfield, right, uh, to inherit purchase, lease, sell, hold and convey real and personal property and to full and equal benefit of all laws and proceedings for the security of personal property as is enjoyed by white citizens. Notice equal protection is there to be sure, but that's also an addition to these positive rights to, uh, making enforce contracts to access the courts to participate in civil society was the problem of the aftermath of the civil war, of course, without, um, a constitutional hook for the civil rights act of 1866 and proved to be a not very effective.
Gura:
And the purpose of the 14th Amendment was to constitutionalize the Civil Rights Act of 1866 of this. There's no shortage and both sides understood this. No shortage of evidence. Uh, representative Rogers, um, an antagonist to the radical Republicans in the, uh, 39th Congress, uh, declared section one of the 14th Amendment no more nor less an attempt to embody in the Constitution that outrageous and miserable civil rights bill. Well, okay. And that brings us to the debates on the 14th Amendment itself. Now it's important here when we look at legislative statements, I am not making an argument for legislative intent. I am not a big believer of legislative intent, but sometimes the statements of the legislators is at least evidence of the way in which people spoke at the time. And it might reflect it's, it's relevant evidence as to the meaning of the terms that were used by the people at the time, and that tells us, uh, how the text should be understood. I think Justice Thomas captured this, again, for some reason keep referring to his opinion, but I think it's a, it's a well written one. Uh, he tells us that when interpreting constitutional texts, the goal is to discern the most likely public understandings of a particular provision. At the time it was adopted statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. Now we go then to the actual language itself, the author of the privileges or immunities provision, John Bingham, did make it plain that he was intending to protect the Bill of Rights. I don't think there's any dispute on that and his words are there, uh, and they're, they're there for all to see. Um, and at one point at a point that's uh, in a speech that is quoted very often times by Professor Lash and others, uh, Bingham states that uh, the security of the Bill of Rights is the intent, uh, of the, of the privileges or media's language it half that extent, no more quoting Shakespeare in various places.
Gura:
But let's not take that remark out of context because Bingham then explains that the amendment would also enforce the privileges and immunities secured by article four. In fact, Bingham made clear that in his view, bill of rights, which to you might mean the first time amendments of the Constitution also includes article four. And here are some, uh, interesting sources. These are sources of Professor Lash has had published before. He described, Bingham described article four and the Fifth Amendment as these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution Fifth Amendment. We recognize it as a Bill of Rights article four. I'm not sure any of us would refer to it as that, but that was at least begins understanding. And so if he says this protects bill of rights, he's including article four in there too. And remember, he's also coming out of the abolitionists legal tradition and thinks article four has, has an actual direct imposition, uh, uh, uh, force against the States when it comes to certain specific rights. And in fact, um, on the Senate side we have another speech which, uh, also garnered, um, a, uh, a great deal of, of, uh, of discussion at the time. Um, Senator Jacob Howard, uh, the floor leader from Michigan who introduced, uh, the 14th Amendment gave a speech where he was cited core fields, definition of privileges and immunities and then it continued to these privileges and immunities whatever they may be for the art and not and cannot be fully defined in their entire extent and precise nature to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution such as the freedom of speech and the right to keep and bear arms and so on. Here is the massive privileges, he tells us. Here is it massive privileges, immunities and rights. Some of them secured by the second section of the fourth article, the constitution, which I recited some by the first eight amendments of the Constitution.
Gura:
That's the person introducing the 14th Amendment in the Senate side and that's how he's reading privileges or immunities. Now interestingly, the opponents of the 14th Amendment shared the same view. This was not disputed. Here's what Representative Rogers said, what our privileges and immunities, why sir? All the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege, the right to contract as a privilege. The right to be a juror is a privilege, the right to be a judge or president of the United States are a privilege. Again, all these are privileges or immunities that States can interfere with as per the opponents of the amendment as well, not listed in the Bill of Rights. And then later on when you hit another commentator, uh, who was describing how he felt the public was relating to this language, um, um, it appears to be assumed in the popular mind and too often by the lawmakers that these are words of the most general and comprehensive nature and that they embrace the whole catalog of human rights, that they confer the power and obligation to enact. Um, you know, most dangerous laws. Now these speeches that were given, uh, in the floor of the House and in the floor of the Senate were transcribed and they were republished. They appeared in the front pages of major newspapers, including in this town. They were placed into pamphlets and handed out some times as political material. And so the public got this, this language and they engaged and they reflected it back. Here's a letter to the editor in the New York times written by Madison, not the one who, you know, earlier helped found the federal society, right? Uh, but in different absences, pseudonym, um, and he is, he is reciting back the Corfield formulation as on the debate and 14th Amendment, what the rights and privileges of a citizen in the United States are, are summed up in another case. And he goes on and talks about Corfield and gives some of these, uh, examples as rights of citizens.
Gura:
And so what we have here is the following, I submit to you. Uh, we need to focus on what the public understood it was doing when the stuff, when this language was ratified, the terms privileges and immunities met rights generally, they included sort of the natural rights and people would suppose would be, um, guaranteed to people by any free government. While there might've been a comedy provision securing those rights. The abolitionists legal tradition that culminated in the 14th Amendment saw this more as a positive grant. And in any event, Dred Scott, Madison, the speeches on the floor of the House and Senate all pretty much pointed in this one direction. It includes the enumerated rights, the Constitution, and yes, there were people who believed that article four, section two also was a grant of enumerated rights. In any event, they believe that the words themselves encompassed this understanding of privileges or immunities, and that's what was ratified into the Constitution. Uh, does that mean that we have every possible right imaginable, uh, uh, snuck in, uh, through the P or I clause? No, it does not. Uh, I agree with Justice, uh, Washington, uh, that we have to look through to the classical liberal tradition to see what are these natural human rights that any free government wouldn't guarantee its people, um, as, as the source of, of, uh, of what the unenumerated pillars of use might be. So it does not guarantee you, you know, the right to get the cartoon channel or, uh, the right to public, uh, infrastructure spending as a US senator said the other day was a human right. Um, no. Uh, but it does guarantee you at the very least, the right to make, enforce contracts, pursue your livelihood, make use of your property, participate in civil society, including by accessing reports and all the rest, all those things of which people were deprived during the Reconstruction era. All of those things, of which 39th Congress was most concerned about guaranteeing at the constitutional level. Thanks.
Audience:
[applause]. How much time do you want me to take it? I'll take it off. No, no. We want to open this up. [inaudible] audience, take all the time you want and then we'll open it.
Lash:
See the DLT or jut aren't stories so far? Okay. Because this can be confusing unless, unless you've done studying in this or you've written on this yourself, our arguments fall into three main categories. Um, pre-Reconstruction. What do we know from the antebellum period? What goes on during Reconstruction and what happens after the of the 14thAmendment slaughterhouses over here. Okay. We won't be here pre, we have things like we have the original, um, Bill of Rights and some of those privileges and immunities. We also have articles or and the comedy clause and a decision interpreting it called Corfield, um, against, uh, Coryell. During, now we're going to get discussions, let's say during the, um, the 39th Congress, they're going to debate things like the Civil Rights Act of 1876, debates which occurred during the same session that they also debated the 14th amendment and the 14th Amendment has something called the Privileges or Immunities Clause, the Due Process Clause and the equal, the Equal Protection Clause. So this is kind of all this stuff that we're throwing at. You notice that Al and I really do have substantial overlap in terms of what we think is important. Both of us are talking about things like, um, the comedy clause and Corfield against, uh, the Coryell. What's the, what's the importance of that particular case? Both of us are talking about debates, which occurred during the 39th Congress. What do we know about the people and what they were intending to do? But both Alan and I also want to go beyond legislative intent and we want to talk about how was it, uh, picked up by the public, right?
Lash:
So for example, how do we explain slaughterhouse and, and the opinions that come just a few years, five or so years after the ratification of the, of the 14th amendment. So I just wanted to put that on the board just to kind of help enable our conversation once we opened this up and you guys are asking, asking questions. I just have a couple of them. A couple of quick thoughts. Um, again, I believe that all of these enumerated rights become part of the privileges or immunities of citizens in the United States. I believe that what is incorporated into the Privileges or Immunities Clause is article four as it was understood during the antebellum period as I, and as, as an Equal Protection Clause. I'm making a claim that that's how it was understood during the antebellum period. And I produce it again. My book, I talked a lot about the evidence that we wanted to understand is said equal treatment claim. But as I understand Alan's argument and, and um, and others, the argument here would be economic rights that were once only given a degree of equal treatment protection, um, receive absolute protection and absolute and unenumerated rights to liberty of contract and liberty of economic rights that you get under the privileges or immunities clause. So part of our argument has to do with whether or not the comedy clause was trensformed, the rights of, of the comedy clubs were transformed from equal treatment rights into absolute ones. And so my theory would be there's no evidence of the transformation. Alan and I would argue about that in terms of what we, um, what we think the record of funds. He also brings up the Civil Rights Act of 1866 points out that if you look at it, it also talks about what appeared to be very important economic rights.
Lash:
It provides, um, uh, the Freedman, the same rights as white people when it comes to contracting. When it comes to to property, to real estate, and to testify, sue, you know, things that seem to be important to flourishing in terms of um, the economic, the economic process. This is why a number of of libertarian scholars would look to the civil rights act as protecting economic rights and the Civil Rights Act, um, must be understood as um, becoming constitutionalized by the adoption of the Privileges or Immunities Clause. Um, I argue against that. I agree with John Bingham, the man who drafted the 14th Amendment. Bingham refused to support the Civil Rights Act of 1866 because he understood it as an attempt to enforce the rights of due process, the rights of due process. No one should be deprived of life, liberty or property without equal protection of their due process, due process rights. I, because freedmen were being considered outlaws, they weren't receiving any kind of protection. They were not secure. Um, they didn't, weren't able to go to courts of law and when property was stolen or when a contract was breached, uh, they couldn't testify. They had no mechanism by which their life, Liberty or property could receive due process of law. Um, so he had thought that they should receive due process of law, but he, because the debated the Civil Rights Act before the ratification of the 14th Amendment, he didn't believe they had power to pass the Civil Rights Act. So he refused to support it. He proposed an amendment that would constitutionalized the Due Process Clause. And then in section five if Congress power to enforce the rights of due process. And then as a lot of, as a lot of, you know, a few years after the ratification of the 14th Amendment, they repass the Civil Rights Act and extended most of its provisions to protect all persons.
Lash:
So the Civil Rights Act was an attempt to protect the rights and due process. It doesn't feed the privileges or immunities clause at all. Yes, it does involve economic rights, but those rights received nothing more than equal protection and due process because that's what was being denied the freedmen [inaudible] in the South and they didn't want to do anything more. And I can quote, I can quote to you, um, radical Republicans and the 39th Congress saying we shouldn't do anything more. I will not support. This will be Schellenbarger said. Schellenbarger. We would not support anything that would give the federal government control over the actual substance of short contract and property. Those are subjects which belong in the States. We simply want to impose the natural right of due process and equal protection. Um, so Civil Rights Act would feed into the Due Process Clause, privileges or immunities, um, uh, continues to be, uh, simply a protection of enumerated rights.
Lash:
Well, what about Slaughterhouse? And what about Miller? Um, Alan makes the claim that everybody in Slaughterhouse, uh, thought that it protected some degree of on a numerated rights. Um, poor Miller, poor Justice Miller when they hate us. Hey, uh, opinions of all time. Dred Scott and then slaughterhouse. I think that's it. Maybe Citizens United item Roe V Wade. I know it's all over. The next time you discussed slaughterhouse, um, in your classes or if you have a chance to, to read it, go back to Miller's list of things that he believes are the privileges or immunities of citizens of the United States. You'll find they fall into two categories. Categories of enumerated rights. He lists rights listed in the first amendment, quotes rights enumerated in the constitution like the 13th, 14th, and 15th Amendment. He specifically lists those rights. And then he, he lodges into this odd stuff like a right to travel on the waterways, um, of the United States and the, and the right to be protected on the high seas by the federal government, right protected by Virginia. Um, read the list, look at the case that is cited at the end of that list. You'll find that he's quoting himself from an earlier case. The quote in the earlier case had to do with the degree to which States that interfere with the operations of the federal government. Um, these are not unenumerated rights. This list has to do with the powers of the federal government with which States cannot interfere. And in that earlier case, what does he end that discussion with? McCulloch against Maryland. A case that had to do things the federal government can do and States cannot. So it's not a list of unenumerated rights. It's a list that comes from his own opinion in an earlier case saying, here are things that States cannot interfere with: enumerated rights and those things which are enumerated into the hands of the federal government by way of the power permissions. Okay, that's enough for, for a response. Let's get at, let's get to our conversation. You can rebutt the rebutt, if you will.
Gura:
I, you know, I'm tempted to, uh, I'll spend maybe 30 seconds on it and really anywhere that you can time me. Number one, if, if all the P or I clause does, is transmit the Comity Clause, uh, again against the state senators we doing because the Comity Clause is still there. It hasn't been revealed and it's still being enforced today. So you have a Comity Clause and then you have all this debate, all this anguish and Civil War, you know, a million, you know, a hundred thousands dead, to just redo the same thing all over again to me. But I'm sure you can rip up my rebuttals. Uh, and then, uh, well, you know, people understand Miller's opinion as in Slaughterhouse's telling you what it means that no state shall abridge the privileges or immunities of citizens United States. So even if its sources come from sort of the federal structure in the government that States interfere with things that the federal government as empowered to do. Nonetheless, we're talking here, but provision and supposedly, uh, addresses the privileges or immunities of citizens United States. And you know, I, you know, I'm not the person who invented the notion that, um, these are unenumerated rights, as it were, and even if they have a bizarre, uncertain lineage, so that I want to be under 30 seconds.
Hill:
I'll call. Uh, yes.
Audience:
So I have a question that's, um, that's logical. Um, or for both of you, you both criticize legislative history and both withdrawn a lot of evidence from legislative history. Um, and I, I certainly take the point that led the way, but just let your response is also evidence of public meaning. But I'm wondering, um, if we were really looking in the right places to get a sense of public meeting so we accept kind of an original public meeting, uh, account. Don't be wanting to get out of the time first and see if the, um, legislators have made reasons to obfuscate when they're doing. Um, and also maybe that maybe the interpretations are less important than maybe what are our freedman taking this on the ground in the South or something of that nature. And we have that evidence. And if so, where's that?
Lash:
Well, both. I'm sure we will want to want to respond to this. Um, a couple of things. One, there's just this really great book available on amazon.com, uh, by professor Kurt Lash. Lash, Privileges and Immunities. I do subscribe to the methodology of original meaning originalism I do so because I believe in normative theory of popular sovereignty and the right to the people that come together and, and transfer fundamental norms. I think that opposition necessarily ties you to what the people tried to communicate. Communication has been textual. You have to understand in the context of communication that places you into some type of historical analysis. It can include, it should include the words of people who use the language, you understand the legal terms that it would bring those terms before public. They're trying to communicate to the public so you can presume that they want to be understood when they talk to the public. The debates in the legislature are, are important, but one of the great moves in originalist theory over the past decade or so has been to go beyond it, not reject the relevance of these debates, but to move beyond it. Because what your, your target is the consensus understanding of these words within the community that ultimately is going to decide whether or not to ratify the constitution. That's why the central chapter of my book on Privileges or Immunities Clause is not the legislative debates. It has to do with the public debates of the Privileges or Immunities Clause that occurred after it was sent to the public for ratification. Um, and the central end just to, um, just to very quickly I've talked about that. Um, the argument I'm making the book is that there wasn't much discussion at all about the Privileges or Immunities Clause in the state ratifying conventions. That's why most scholars say that there's a silence regarding of the public understanding the Privileges or Immunities Clause. I say they've been looking in the wrong place. The discussions occurred during the political debates of 1866 as they headed to a very important election that fall on both Democrats and Republicans. Um, took opposite positions about whether or not the 14th amendment should be ratified. Republicans started out slow, didn't really want to talk too much about the meaning of privileges or immunities. Um, but then an explosive event occurred in Louisiana. There was an assault on a meeting of freedman in new Orleans, of the freedman were meeting there to, um, uh, to propose a redrafting of the Louisiana constitution to give more rights to the freedman. A state led mob attacked the assembly and shot them dead even as they were trying to surrender. It became a national scandal and Republicans were able to point to that scandal as why we should ratify the 14th Amendment because now finally, um, citizens will get their rights to freedom of speech and freedom of assembling according to the enumerated provisions of the constitution, which would now be a see action. So I've already spoken way too much, but I completely agree with you. You need to talk about the public debate. The argument in the book is that that event crystallized and focused on public debate in a way that, um, really brought the meaning before the people. Republicans prevail in election 1866. So any of those laws that I think it's a great question.
Gura:
Yeah, well actually too, I think this is a great question also. Um, I think we're very lucky when we litigate the 14th amendment relative to the no rights amendments because there, there's a lot more media maintenance sixties or in the 17, eighties and nineties. And so we have more sources to look at. And uh, the last book wasn't out. We're litigating Donald and we, so we couldn't order it. Even we want, we want to wrap it. If it was out, uh, but I'll tell you what was out and what people did look at. We did survey newspapers. Uh, we did survey some of the debates that were occurring in the, in the legislatures. Um, uh, there was an article that gentleman, attorney David Parti, uh, published where he surveyed the immediate, he found that New York Times, there's the editor from Madison who basically regurgitated the Jacob Howard speech, which shows an engagement and adoption of that, uh, that language and for the Senate. Um, for, you know, for better or worse, those speeches were disseminated. Why did they work published? They were consumed by my people. And I do think it doesn't matter to some extent, fact that we did have the Supreme Court applying for privileges and immunities in a case that really inflamed the country. Uh, I'm not sure how many people in 1857 went on Westlaw and downloaded, uh, you know, the Dred Scott opinion. But if it's people, didn't people engage with it, people sort of view is going on. It's true. Um, I think back then, uh, in the 1850s and 1860s, people did more reading and less tweeting. Uh, there was more engagement with some of these original sources that were produced by the forest. But I'll tell you, I read from Donald's or inside of some examples of Madison. They were also, here's one colonics dug up. This is my whole brief. I just looked up, there was a Texas House committee that um, obviously didn't really like the 14th Amendment and said that, uh, that the amendment would defeat the reserve rights in the States declared by the framers of the Constitution to belong with the States exclusively and necessary for the protection of the property and Liberty of the people who brought, they understood. The first section of this proposed amendment is to strike down those state rights and invest all power in the general government. Well not so sure if it's a complete abrogation of state sovereignty, but look, the 14th Amendment doesn't limit family and then it's federalism in a certain way. Limited, limited lease per professor lash in forcing the space to abide by the Bill of Rights, which was not the case before. I think he goes a little bit further than that. And also who's the classical rights before fueled.
Audience:
So sort of actually building off that. I know. So the civil rights activating 66 was passed and Johnson didn't want to have anything to do with it and passed over his veto. And then you basically have Congress, I always understood it as almost Congress doing an end run around the president to pass the 14th Amendment to try to really uh, get what they wanted out of sort of the rights that they were trying to get. And I was wondering whether that sort of tension between the legislative branch and the executive branch plays it all or detracts from this idea of this incorporation of rights as much as is trying to take back power to the legislature or to take power away from a recalcitrant president in the run up to a 1868 presidential election.
Lash:
Well, I'll, I'll say a couple of things. I'm not, and I don't think I can fully, I don't think I'm fully answering your question. I'm, I'm going to pull it into something that I do want to talk because that's what we do, right? The, the tension, the quick thing I want to say is the tension between Andrew Johnson and Congress was extremely important to establishing an idea in the public's mind about what the amendment was about. But I don't think the argument was about power in the executive branch versus power in the legislative branch. Instead, I think what was, what was happening is that Andrew Johnson supported ratification of the 13th amendment and then he wanted that to be the end of it. He then wanted to pardon as many Southern officials as possible, bring the States back to their seats in the Senate and the house. Um, and let's just heal, heal the country. Republicans were saying, wait a minute, things are happening in the South. We thought it would be enough to, uh, to bring them liberty by abolishing slavery. We're getting reports that actually they're, they're imposing a different form of slavery, a byway, or they're in denial. And basic, natural, basic natural rights. Um, so they want to say we're not going to readmit of the Southern States until more protections come along. One protection of civil rights act. Um, Johnson doesn't want to have anything to do with that. Um, he vetoes it, but they override the veto. But a separate track involve the amendment of being, um, proposed. The amendment being a, didn't have anything to do with the Civil Rights Act. He opposed it. He had a separate, separate way of protecting liberty. Um, and that's proposing an amendment which will entrench this radical restructuring of federalism. Johnson's opposed to that to Johnson sends the proposed 14th amendment to the States but says, don't read ratify this. Um, it's wrong to propose any amendment before the Southern States are back and can participate in the discussion. Okay, now we enter into the summer. Johnson's not up for reelection, but he's the head Democrat.
Lash:
So he now rides the circuits supporting Democrat candidates throughout the country, leading them to say, we need to heal the country, reject the amendment, and let's bring these hostilities to an end. Um, the Republicans say, not yet. The rebels are still rebels. Freedom has not been established in the South. We need this amendment and we need things like the, like the civil, like the Civil Rights Act. Um, the debate because he opposed the 14th Amendment that drove a deepened political and public discussion about what the amendment was and why it was necessary. So it was his opposition that broadened the discussion. And I think Alan is exactly right. The newspaper penetration at the time was remarkable. You can find evidence now of, you know, you have the major papers like the New York Herald and things along those lines that are published on the East coast, but they get reprinted for simply content sake all the way into Kentucky, all the way into the Western Western side of the United States as it was at that time. So the debates amylin is exactly right. The debates in Congress were in newspapers and were sent to the public Howard speech, which is so important to Allen's argument. I just have to support his point. Howard speech was so important that the 14th amendment became known as the Howard Amendment. Um, so people associated his speech with the meaning of that amendment and that's why it's so important. Well, what exactly is his speech mean? So I think there was, there was a debate, um, two different visions of what reconstruction was. I don't think it was a fight over executive versus, um, uh, legislative power. I think it was a fight against Johnson's vision of Reconstruction and the Republican vision of Reconstruction. But that's only a partial, that's when you're a partial answer.
Gura:
Uh, to be sure. I mean, I agree with professor lash. I don't see the executives Walden's being itself, pardon the bait. Obviously Johnson was more sympathetic to the Southern cross, uh, during this time when these two, uh, he was not in favor of putting too many restrictions on the South, but the amendment wasn't necessary to constitutionalize the Civil Rights Act of 1866, uh, the, um, the courts will enforcing the civil rights act, uh, being him himself. I agree with Professor Lash obviously expressed a great deal of preservation as to whether there was constitutional authority to enact this provision. And judges, especially judges in the South were all too happy to oblige. And there was one case we cited, um, there was a kind of interesting, uh, this was a report in the, uh, in the New York times of all places where a judge in Mississippi, uh, did not recognize, uh, this is clause. This didn't recognize African Americans as citizens didn't enforce Civil Rights Act of 1866 in a case where a black union soldier was convicted of the offense of having arms, which was not allowed in Mississippi. And he basically said Civil Rights Act had no constitutional backing to it. So I think it's hard to dispute those of you will do that. The 14th Amendment was intended to constitutional rights and civil rights and that includes the right to make it enforce contracts and all the other ingrained basic instead excited rights that were being flagrantly violated.
Lash:
And just one quick thing just to share, just to follow up on that, cause it also allows me to quickly answer another way Holland's question. Sure. So you, I'm arguing the Comity Clause in the Constitution became part of the constitution. Um, by way of the privileges or immunities clause. That makes no sense. That makes no sense at all. When the problem is the Comity Clause in article four had no in forcement power along 13th A.mendment, no more slavery power to enforce. 14th Amendment liberties, power to enforce. 15th Amendment, Black males get the right to vote, power to enforce, right. The argument what had happened during the antebellum period is that the comedy was supposed to require the States to provide equal treatment, but there was no power of Congress to pass legislation to force them to do so. This was a major subject of the debates. And so one of the things they wanted to do was make sure that Congress had power to enforce all enumerating rights. That would include not only the Bill of Rights, but also the Comity Clause. He didn't have that power before.
Gura:
Well, I'm going to disagree a little bit with that. I mean, basically you got joined your military. We've got some Georgia for a while. Well, if that were the case, then Justice Washington would have been a very different opinion. Unfortunately, Coryell, you just simply said, a federal court lacks jurisdiction to, uh, to, uh, direct, uh, any sort of judgment is against the operation of the law. In that case, because there's no power, uh, court possesses or the federal government might somehow step in. I mean, how, how would the Comity Clause have any effect at all if it needed a separate enforcement tool that only the 14th Amendment could, uh, can provide? I think the comedy clause was very much in the offing back prior to the 14th. The idea that it needed its own amendment just to make it enforceable. Not sure. Okay. In any event, the record is very clear that people felt the States were violating certain rights, whose rights were spelled out in Corfield versus Coreyell as examples of privileges and immunities and the public one, it hadn't decided, let's make sure that no state shall make or enforce laws and bridging these rights. Now they're bridging equal protection of the rights because of Equal Protection Clause comes separate. Uh, and certainly, um, uh, nobody would argue that the 14th amendment doesn't transmit some level of protection. But I don't think that the equal protection clause is meant to be redundant. The comedy clause, I don't think the Privileges and Immunities Clause is meant to be, you're to divide.
Lash:
It's not redundant because if you look at article four, privileges and immunities, who gets privileges and immunities under article four? Citizens in several States, but equal protection is a natural right Republicans told us it should not just be limited to citizens that should go to all persons. And so we get an Equal Protection Clause and for the first time we extend to the rights of equal treatment and equal protection from all persons.
Gura:
So your person is, is then your rights are being violated. Article four, section two, because the state won't let you, uh, do something. What's your report?
Hill:
15 seconds.
Gura:
It's 1820 and--
Lash:
1820. You can write, you give me, what do you do? You can go to the court and the courts of law, courts of law under article three can't have federal question jurisdiction.
Gura:
What's the jurisdictional statute?
Lash:
The jurisdictional statute for them to hear federal questions would be in the first judiciary act. Okay? But Congress would not have power to pass. For example, in 1983 statute that we give lawyers and attorney’s fees or to create situations where certain federal personnel would be allowed to go into the South to make sure that these rights are protected. All of that required civil rights acts after the adoption of the 14 Amendment.
Gura:
I think this was litigated and 1820s but say, we're just going to keep going.
Audience:
[applause]
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