Review Your Bank Statements!

The Baseball Crank has a post about a baseball player whose funds were embezzled from his bank checking account. When the player opened the account, he signed forms by which he agreed to the bank's rules and regulations concerning the account. He also instructed the bank to hold his monthly account statements, i.e., not to send them to his home or to a third party (such as an accountant).

The player ordered checks, which were sent his residence. There, an "employee" of the player -- not the bank -- obtained possession of them and began forging checks, depleting the account (and other accounts tied to the checking account).

When the player ultimately discovered the embezzlement and loss, he sued the bank. The bank asserted as a defense (among others) that the player's claim was barred because he had failed to report the loss within thirty days after the bank made the first bank statement reflecting the fraud available to him, as required by the bank's rules and regulations. The court upheld this defense and dismissed the player's suit. It was irrelevant that the player had not actually received the monthly statements, because it was he who had instructed the bank not to send them.

Commenters at the Crank's site are outraged, although much of the outrage may be attributable to the fact that they think that the forger was a bank employee. He was not. The forger was the player's employee. That said, however, people should know that this scenario happens over and over again, and the decision is utterly routine. Virtually all banks have similar rules requiring checking account customers to report irregularities within sixty or thirty days (sometimes less), and courts regularly enforce these rules.

Small businesses are most often the victims of such frauds, usually by their bookkeepers, but the rules apply to individual checking account customers as well. Even where the facts are sympathetic to the account holder (the invalid senior whose life savings are stolen by a home healthcare attendant, for example), the account holder almost always loses.

The moral of the story: review your monthly bank account statements!

Finally, it's worth noting that the player did not sue the bad guy, his former employee who forged the checks. Why? I'd guess it is because the forger had fled or had no money. In these situations, the bad guy (or gal -- and there are many) is often a gambler, drug user, or other species of extreme spendthrift. The stolen funds are almost always spent and unrecoverable.

Stephen Breyer Says "Ouch!"

In the June 2006 issue of The Harvard Law Review, Judge Michael W. McConnell reviews Supreme Court Associate Justice Stephen Breyer's book Active Liberty: Interpreting Our Democratic Constitution. The review, entitled "Active Liberty: A Progressive Alternative to Textualism and Originalism?", may be accessed here.

Over at The Volokh Conspiracy, Professor David Bernstein characterizes the Review as "rather devastating (though unfailing polite)." I'd characterize the "rather devastating" part of the characterization as itself "polite." I wonder whether Justice Breyer is embarrassed?

Both Judge McConnell's Review and Professor Bernstein's post (which features a special guest appearance in the comments by Judge McConnell himself) are well worth reading.

Update: Anyone interested in the subject should also not miss Professor Ilya Somin's Review of Justice Breyer's book in the Northwestern University Law Review. This link will take you to Professor Somin's blog entry at The Volokh Conspiracy, which in turn provides a link to his Review.

Lemmon v. People VI

Judge Hiram Denio’s opinion in favor of affirmance -- that is, in favor of declaring the eight slaves free -- lacks the passionate denunciations of slavery we have seen in Justice Wright’s. It is a model of dispassionate and impartial scholarship. Nonetheless – and I may be imagining it – I picture Judge Denio silently smiling from time to time as he writes his opinion.

Justice Denio began his constitutional discussion by arguing that the Fugitive Slave Clause supported the constitutionality of the statute and thus the eight slaves' freedom. The Clause, the judge deduced, supported the conclusion that “the authors of the Constitution [assumed] that the fact of a federative Union would not of itself create a duty on the part of the States which should abolish slavery to respect the rights of the owners of slaves escaping thence from the States where it continued to exist.” 20 N.Y. at 604. In other words, the Framers implicitly recognized that a State could declare all slaves who came within its jurisdiction free, unless the Constitution provided otherwise. Despite this assumption, the Framers constrained free States only as to escaped slaves, not as to slaves whose masters brought them voluntarily into the jurisdiction:

“Reading the provision for the rendition of fugitive slaves, in the light which these considerations afford, it is impossible not to perceive that the [Constitutional] Convention assumed the general principle to be that the escape of a slave from a State in which he was lawfully held to service into one which had abolished slavery would ipso facto transform him into a free man. This was recognized as the legal consequence of a slave going into a State where slavery did not exist, even though it were without the consent and against the will of the owner. A fortiori he would be free if the master voluntarily brought him into a free State for any purpose of his own. But the provision in the Constitution extended no further than the case of fugitives.”

20 N.Y. at 606.

Sitting alone in his chambers, Judge Denio puts down his pen and reviews his handiwork. He leans back in his chair and smiles, savoring the irony. Round one to freedom.

Lemmon v. People V

Broadly speaking, there were two legal issues for the Court to decide in Lemmon. The first was whether the law of New York provided that slaves physically brought into the state were free, even if they were brought there temporarily or in transit. Second, if and only if the answer to the first question was in the affirmative, then it became necessary to second: whether the law of New York was void or unenforceable or void because it violated the federal Constitution.

As it turned out, the Court concluded that the answer to the first question was clear. All three opinions that analyzed the arguments in detail – Judge Clerke’s dissent as well as the majority opinions of Judges Denio and Wright – concluded that the New York legislature had outlawed the importation of slaves into the state, even if the presence was temporary or transitory. Briefly, earlier New York statutes banning slavery in the state had contained exceptions, including an exception covering temporary or transitory presence. In 1841, the state legislature had repealed that exception. All of the Judges concluded that the legislature clearly intended to outlaw even temporary or transitory slavery within the State. No judge expressed doubt that State statutory law required that the petition be granted and the slaves be freed.

What divided the majority from the dissent was, rather, the second question. The majority concluded that the New York law did not violate the Constitution. The dissent concluded that the statute was unconstitutional and therefore unenforceable. It is to the constitutional arguments I shall turn next, starting with the analysis of Judge Hiram Denio.

Lemmon v. People IV

OK, I lied. Let's clear out a little more underbrush first.

Three Judges declined to join the majority opinions. Two of the three issued brief (roughly 150 words each) opinions that are legally insignificant but nonetheless worthy of attention on the theory that they presumbaly reflect views held by a number of "conservative" New Yorkers who were more concerned about sectional relations than the immorality of slavery.

The opinions are startlingly similar. Both Chief Judge George F. Comstock and Judge Samuel Lee Selden began by stating that attention to "other causes" or "other duties" had prevented them from giving the case the "attention" or "careful examination" it deserved. Nonetheless, both suggested that they were concerned that the majority decision threatened interstate relations.

Chief Judge Comstock's remarks are, for some reason, set forth in the third person. He opined

"that the legislation of this State, on which the question in the case depends, is directly opposed to the rules of comity and justice which ought to regulate intercourse between the States of this Union; and he was not prepared to hold that such legislation does not violate obligations imposed on all the States by the Federal Constitution."

He therefore "dissent[ed] from the judgment."

Judge Selden technically seems to have abstained, but expressed virtually identical concerns:

"I . . . am not prepared, therefore, definitely to determine whether the act of 1841 is or is not in conflict with any express provision of the United States Constitution. But however this may be, I cannot but regard it as a gross violation of those principles of justice and comity which should at all times pervade our inter-state legislation, as well as wholly inconsistent with the general spirit of our national compact. While, therefore, I am not prepared at this time to give such reasons as would justify me in holding the law to be void, I am equally unprepared to concur in the conclusion to which the majority of my associates have arrived."

20 N.Y. at 644.

One striking thing about both opinions is the use of the word "justice" together with the word "comity." The invocation of the doctrine of comity -- voluntary deference by one jurisdiction to the laws or customs of another jurisdiction -- is understandable. The invocation of "justice" is less so. Nonetheless, both Judges apparently felt that it would be "unjust" for New York not to take the laws and customs of Virginia into account.

The other thing that strikes me is that both went to the trouble of expressing their disagreement, or at least uneasiness in the case of Judge Selden, with the majority holding. Having pleaded inattention, presumably they could have simply abstained without writing anything. I infer that both were seriously worried about the impact of the decision and at least wanted to send the message that some New Yorkers were sympathetic to Virginia's position. If so, perhaps they achieved their purpose. According to the Valley of the Shadow Project, the May 1, 1860 issue of the Staunton Spectator specifically reported that "[t]hree of the Judges--Comstock, Seden [sic] and Clark [sic]--dissent from the judgement pronounced in this case."

Lemmon v. People III

I don't have time to create a thoughtful post on Judge Denio's opinion, so I'll briefly post another excerpt from Judge Wright's opinion that reveals where his sympathies lie. He describes slavery as

"a social condition that violates the law of nature (Virginia Bill of Rights, Sections 1, 15); a status, declared by Lord Mansfield, in Sommerset's case, to be 'of such a nature that it is incapable of being introduced on any reasons, moral or political;' that originates in the predominance of physical force, and is continued by the mere predominance of social force, the subject knowing or obedient to no law but the will of the master, and all of whose issue is involved in the misfortune of the parent; a status which the law of nations treats as resting on force against right, and finding no support outside of the municipal law which establishes it. (Taylor's Elements of Civil Law, 429; Sommerset's case, 20 Howell's State Trials, 2; 2 Devereaux's R., 263.) Why should not the State be able to utterly suppress it within her jurisdiction?"

20 N.Y. at 630-31 (italics in original).

Lemmon v. People II

The Historical Society of the Courts of the State of New York has a nice web page on the case, with links to the full texts of the decisions in all three courts (the trial court decision in New York City Superior Court; the first-level appeal in the Supreme Court; and the second-level appeal in the Court of Appeals), as well as to some of the briefs, the statutes that formed the background for the decisions, and other materials.

The page focuses on the opinion for affirmance (i.e., affirming the discharge of the slaves) of Court of Appeals Judge William B. Wright. This is understandable, for Judge Wright's opinion includes impassioned denunciations of slavery. Passages such as this lead me to assume that Judge Wright was a Republican:

". . . [S]lavery is repugnant to natural justice and right, has no support in any principle of international law, and is antagonistic to the genius and spirit of republican government. Besides, liberty is the natural condition of men, and is world-wide; whilst slavery is local, and beginning in physical force, can only be supported and sustained by positive law. 'Slavery,' says Montesquieu, 'not only violates the laws of nature and of civil society; it also wounds the best forms of government; in a democracy where all men are equal slavery is contrary to the spirit of the Constitution.'"

20 N.Y. at 617.

In fact, there were two opinions for affirmance, the first of which was authored by Hiram Denio, and Judge Denio's opinion appears first, before Judge Wright's. It is not clear (to me at least) whether this is because Judge Denio was senior (he joined the Court in 1853; Judge Wright is listed as officially joining the Court in 1861 and in 1860 was apparently a Supreme Court Justice sitting by designation). Nor is it clear how many of the five Judges in the majority joined in each opinion, or whether some or all joined in both opinions.

I will next look at Judge Denio's drier, scholarly opinion.

The Fourteenth Amendment and Incorporation VI

All right. Back to the Fourteenth Amendment and Incorporation after a substantial delay. Let's look next at the speech of Senator Luke P. Poland (Republican, VT). Senator Poland's speech is sometimes cited as supporting the proposition that the Fourteenth Amendment was not intended to apply the Bill of Rights to the states. In fact, it proves exactly the opposite.

Senator Poland spoke on June 5, 1886 (thirteen days after Senator Howard gave his speech). He spoke only briefly about Section 1, precisely because, he said, he did not disagree with what had already been said (including, presumably, Senator Howard's explicit and widely-reported statements that the Privileges or Immunites Clause was designed to incorporate the Bill of Rights). Senator Poland explained that "all the questions in the proposed amendments to the Consititution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail."

Senator Poland's speech has been misinterpreted because he apparently did not understand that, in Barron v. Baltimore, the Supreme Court had held that the Bill of Rights did not apply to or limit the states -- or at least, in common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights. He expressed the opinion that the Privileges or Immunities clause secured “nothing beyond what was intended” by the similar provision in the original Constitution -- and he then quoted the Privileges and Immunities Clause, Article IV, Section 2.

But, he complained, slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”

In addition, Senator Poland analyzed Section 1 as follows:

“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”

The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference “to all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)

In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.

Previous posts:

The Fourteenth Amendment and Incorporation I

The Fourteenth Amendment and Incorporation II

The Fourteenth Amendment and Incorporation III

The Fourteenth Amendment and Incorporation IV

The Fourteenth Amendment and Incorporation V

The Corporate Origins of Judicial Review

Alerted by Orin Kerr's post over at The Volokh Conspiracy, I read earlier today an article in the latest edition of the Yale Law Journal, The Corporate Origins of Judicial Review by Mary Sarah Bilder of Boston College Law School. From the introduction:

"This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as 'the Constitution' replaced 'the laws of England.' With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power."

With all due respect, I would say the article is OK but not great. On the plus side, I learned lots of things about the history of corporate charters (of both what we would now call commercial entities and municipal corporations). In addition, Professor Bilder's thesis, as a hypothesis, makes a lot of sense. It would explain, for example, why so many of the founding generation seem to have assumed that some sort of judicial review existed without ever discussing it in detail -- in the corporate context, it was just part of the generally assumed legal background, so common that no one thought to re-examine it or analyze it. But where the article falls down, I think, is in its failure to point to hard evidence establishing that limitations on corporate bylaws served as the unconscious blueprint for what we now call judicial review.

Make no mistake, the article is well worth reading. Professor Bilder may well be correct, and the journey is a fascinating one. I'm just not sure she gets us all the way to her destination.

Another Book for the List

Robin Einhorn's new book, American Taxation, American Slavery (University of Chicago Press 2006) looks fascinating.

Other references:

University of Chicago Press page on the book

The Chicago Blog

A Washington Times review

A review in the William & Mary Quarterly

A related essay by Einhorn, "Tax Aversion and the Legacy of Slavery"

The Oath of Office: A Coda

You may have heard or read that there's a tempest in a teacup brewing over a report that Keith Ellison (D-Minn.) may be sworn in over the Koran. It's clear that Mr. Ellison is bad news -- a radical muslim who has lied about his past. But what piqued my interest was whether the Constitution permitted the use of Koran in a swearing-in and, more particularly, the history of officeholders using books other than the bible, or no book at all.

Eugene Volokh has authored several interesting and persuasive posts on the topic, in which he has pointed to evidence that Presidents Pierce and Hoover affirmed, rather than swore (suggesting they used no book at all), and that John Quincy Adams swore but did not swear over a bible because he believed that the bible should be reserved for religious use. The posts are here and here.

I had never heard the John Quincy Adams story, although it is not inconsistent with what I have read about him. In his biography of JQA, Robert Remini briefly describes the swearing-in ceremony without referring to whether a bible was used (pp. 75-76):

"On inauguration day, March 4, 1825, Adams recorded his thoughts on this momentous occasion. 'After two successive sleepless nights,' he wrote, 'I entered upon this day with a supplication to Heaven, first, for my country; secondly, for myself and for those connected with my good name and fortunes, that the last results of its events may be auspicious and blessed.' Then, accompanied by companies of militiamen, he arrived at the Capitol and was inaugurated in the presence of Monroe, Vice President Calhoun, and many of his rivals and friends. In his address he spoke about his belief that 'the will of the people is the source and the happiness of the people the end of all legitimate government upon earth.' He also described how the country had grown into a 'confederated representative democracy,' a term not used publicly by any previous president. When he concluded his remarks, he took the oath of office from Chief Justice John Marshall."

I decided to go back further. Dimly recalling from David Currie that the very first statute passed by the First Congress controversially prescibed the form of oath to be taken by state as well as federal officeholders, I looked it up. Sure enough, 1 Stat 23 (June 1, 1789), "An Act to regulate the Time and Manner of administering certain Oaths," specifically permits affirmations and does not require the use of a bible or any book at all. It states, in relevant part:

"That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following, to wit: 'I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.'"

Original Intent In the Original Congress?

Another interesting article. Will Jack Rakove have a response?

Louis J. Siroco (Villanova Law), Original Intent in the First Congress

Abstract: Most of the literature on this country's Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

Rakove for the Supremes!

Over at his Legal Theory Blog, Lawrence Solum recommends an article arguing that there should "lay justices" -- that is, non-lawyers -- on the Supreme Court.

Luckily for the rest of the country, I'm not president. But if I were, I wouldn't hesitate. My first nomination for the Supremes would be Jack Rakove.

The Fourteenth Amendment and Incorporation V

Well, I’m going out of order, but hey, it’s my blog, so tough. Having told you about Corfield v. Coryell, I’m going to discuss the principal speech of Senator Jacob Howard (Republican – Michigan), who discussed the case. It also gives me an opportunity to give Raoul Berger a whack or two.

Senator Howard was a member of the Joint Committee on Reconstruction, which created the Fourteenth Amendment. He was considered at the time, and historians consider him now, a moderate. It’s worth bearing that in mind. If Senator Howard he was a “moderate,” does it make sense to think that “Radical Republicans” disagreed with what he said?

Senator Howard presented the Joint Resolution containing the proposed amendment to the Senate, sitting as a committee of the whole, on behalf of the Joint Committee in a speech on May 23, 1866. The speech appears in the Congressional Globe, Cong. Globe, 39th Cong., 1st sess., 2764, et seq. (May 23, 1866), and is available online. By all means read it yourself.

After some introductory remarks, Senator Howard quoted the draft of Section 1 as it then stood:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Senator then began his discussion as follows:

“It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is the first clause, and I regard it as very important. . . .

“The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”

Senator Howard then moved on to the meaning of the phrase “privileges or immunities” in the proposed amendment. He began by citing and quoting at length from Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. His quotation from Corfield v. Coryell included the entire passage that I quoted in an earlier entry.

He then continued (emphasis added):

“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him; and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper Clause] of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guaranties.”

In short, Senator Howard specifically and clearly stated that the “privileges and immunities” protected by the amendment included “the personal rights guarantied and secured by the first eight amendments of the Constitution." He then specifically mentioned:

* “the freedom of speech and of the press” (the First Amendment);

* “the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people” (the First Amendment again);

* “the right to keep and to bear arms” (the Second Amendment);

* “the right to be exempted from the quartering of soldiers in a house without the consent of the owner” (the Third Amendment);

* “the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit” (the Fourth Amendment);

* "the restriction contained in the Constitution against the taking of private property for public use without just compensation" (the Fifth Amendment);

* “the right of an accused person to be informed of the nature of the accusation against him (the Sixth Amendment);

* “his right to be tried by an impartial jury of the vicinage” (the Sixth Amendment again);

* “the right to be secure against excessive bail and against cruel and unusual punishments (the Eighth Amendment).

It is, frankly, hard to imagine a statement that more clearly conveys the point that the “privileges or immunities” clause of the proposed amendment was intended to incorporate the Bill of Rights.

In his book Government by Judiciary, Raoul Berger attempted to minimize Senator Howard’s speech. He said that the sum and substance of Senator Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that “to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.” According to Berger, this “remark” by Senator Howard was “casually tucked away in a long speech.”

I have quoted at length from Senator Howard’s speech precisely because it makes crystal clear how dishonest Berger’s description is. Michael Kent Curtis has correctly described Berger’s characterization as “grossly inaccurate:”

“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”

Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights at pp. 126-27 (footnotes omitted).

Senator Howard’s speech – including the portions in which he specifically referred to the Bill of Rights – was reported in detail in the press. Both the New York Times, on May 24, 1866, and the New York Herald (the latter then ranked as the nation’s best-selling newspaper) reprinted the passage on the Bill of Rights on their front pages. Curtis, No State Shall Abridge, p. 128; Akhil Amar, America’s Constitution: A Biography, p. 197.

Previous posts:

The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
The Fourteenth Amendment and Incorporation III
The Fourteenth Amendment and Incorporation IV

The Fourteenth Amendment and Incorporation IV

In 1823 – just 34 years after the Constitution was ratified – Justice Bushrod Washington of the United States Supreme Court, sitting as Circuit Court Judge, wrote what amounted to a paean to the phrase “privileges and immunities.” The decision, Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230), became one of the best known in the first half of the nineteenth century. In it, Justice Washington reflected the growing idea that “privileges and immunities” included all those privileges and immunities implicit in the concepts of the rights to enjoy life and liberty, to acquire and possess property of every kind, and to pursue and obtain happiness and safety:

“The inquiry is, what are the privileges and immunities of citizens in the several states? 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 free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. 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 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 or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’"

The breadth of the definition is remarkable. It encompasses – and is in fact broader than – the “life, liberty and pursuit of happiness” of the Declaration of Independence, for it also includes the rights “to acquire and possess property” and to “obtain” happiness. Privileges and immunities are so vast that it would be “tedious” to “enumerate” them.

We shall meet Corfield again in the debates over the Fourteenth Amendment.

The Thirteenth Amendment

The Thirteenth Amendment was in the news recently. No, not the Thirteenth Amendment that banned slavery in 1865. The “original” Thirteenth Amendment, sometimes known as the Corwin Amendment, passed by Congress and sent to the states for ratification in 1861.

The Corwin Amendment represented a last-ditch effort to find a compromise that would encourage seceding states to return to the Union. It would have forbidden any later amendment to the Constitution permitting Congress to abolish or interfere with slavery. The full text stated simply:

“Article Thirteen

“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

The Corwin Amendment made the news because of the Lincoln connection, and at least one blogger, Brian Dierck, has noted that it still might, in theory, be ratified (although not as the Thirteenth Amendment). But I have not seen anyone discuss what, to me at least, is the most interesting issue associated with the Amendment: if it were ratified, would it in fact be effective? That is, could a Constitutional Amendment in fact bar further amendments to the Constitution?

I tend to agree with Akhil Amar of Yale Law School that the answer is probably “no.” In America’s Constitution: A Biography, Professor Amar writes (p. 292):

“[O]ne might plausibly infer from the Preamble’s text about the rights of “our Posterity” and from the very act of ordainment that what We, the People originally established, We could later amend. Ongoing popular sovereignty formed the Constitution’s bedrock principle, which could not be abrogated without undermining the very foundation of the document. On this view, if some putative amendment purported to eliminate the right of a later generation to adopt still further amendments, such an attempted abrogation of a genuinely inalienable right would not be a permissible amendment of the Constitution’s general project. Rather, it would represent an impermissible repudiation of the basic legitimating concept. Thus, in general the Constitution had to remain subject to amendment.”

As an aside, the Corwin Amendment may have left a loophole. It would have barred Congress from making any further amendment that would authorize Congress to interfere with slavery in the States. But what if Congress passed a further amendment that simply barred slavery, rather than an amendment that authorized Congress to bar slavery?

I know of no evidence suggesting that the form of the proposed Thirteenth Amendment was intentionally designed to leave this loophole, or that anyone in the seceding states found the proposed amendment unsatisfactory for this reason.

The Fourteenth Amendment and Incorporation III

Having briefly discussed the Amendment as a whole, let’s begin to focus in on the key provision, Section 1. By way of reminder, Section 1 provides:

“1. All persons born 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 shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.”

For reasons I won’t go into now, the Supreme Court over the course of the Twentieth Century generally used the Due Process Clause (“nor shall any State deprive any person of life, liberty or property, without due process of law”) to apply provisions of the Bill of Rights to the states. Current legal scholarship, however, has generally identified the Privileges or Immunities Clause (“No State shall make or abridge the privileges or immunities of citizens of the United States”) as the basis for incorporation. It is to the Privileges or Immunities Clause we must therefore turn.

OK, you say, That’s clear as mud. The phrase “privileges or immunities of citizens of the United States” is totally opaque. Are you really telling me that that means “the Bill of Rights”? The short answer is that that is precisely what I’m telling you. But to understand how and why that is the case requires us to do some historical digging.

Where to begin. Hmmm. How about with a clause in the original Constitution that contains a suspiciously similar phrase? Article IV contains its own Privileges and Immunities Clause. (Note: the Article IV clause is the “Privileges and Immunities” Clause; the Fourteenth Amendment clause is the “Privileges or Immunities” Clause.) The first sentence of Article IV, Section 2 provides as follows:

“1. The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.”

Most constitutional historians now believe that, during the period when the Constitution was drafted, debated and ratified (1787-89), the Privileges and Immunities Clause was generally understood to have a limited meaning. At the time, it seems to have been generally understood to act, in effect, as an interstate traveler non-discrimination provision, requiring states to provide to visiting citizens of other states the same basic civil rights (although not political rights such the rights to vote, hold office, sit on juries or serve in the militia) they provided to their own citizens. See generally Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House 2005), pp. 249-54.

At first blush, such a limited definition of the Privileges and Immunities Clause would seem to cut strongly against the argument that the Privileges or Immunities Clause imposed the Bill of Rights on the states; and, indeed, critics of incorporation have made precisely that point. But we are missing a step. The question is not, What did “privileges and immunities” originally mean in 1787-89? Rather, the question is, what did that phrase mean to the drafters, proponents and opponents of the Fourteenth Amendment in 1866-68?

As we shall see next, the meaning of the term “privileges and immunities” was dramatically transformed during the first half of the Nineteenth Century. We will also have to consider the fact that the “privileges or immunities” protected by the Fourteenth Amendment are not just any old privileges and immunities in general, but rather “the privileges or immunities of citizens of the United States.”

Previous Posts:

The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II

The Fourteenth Amendment and Incorporation II

All agree that, if the Fourteenth Amendment applied the Bill of Rights to the states, it was the first section of the Amendment that did so. Nonetheless, it is worth looking at the entire Amendment to furnish context:

“XIV - Citizen rights not to be abridged

“Passed by Congress June 13, 1866. Ratified July 9, 1868

“1. All persons born 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 shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

“2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

“3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

“4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

“5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

For present purposes, and putting the first section aside for the time being, the key point to note is that the document was intensely political and of vital importance to the politicians who sought and opposed its passage. Section 3, for example, disqualified many pre-War southern officeholders from serving in the House and Senate or state offices. As a practical matter, this was expected to be highly advantageous to the Republican party. As the states in the Confederacy retook their seats in Congress, many southern pre-War officeholders and opinion leaders – the people who had led their states out of the Union – would be excluded, The hope was that this would make it more likely that others, more sympathetic to the Union and Republican values, to compete and take their place.

At the same time, Section 2 was designed to penalize southern states unless they permitted black males to vote. To the extent a state failed to permit all male citizens 21 years of age or older – including black male citizens -- to vote, that state’s representation in the House would be proportionately reduced. Either way, Republicans would presumably benefit. On a best case basis, the franchise would be given to black males, who would presumably vote overwhelmingly for Republican candidates. On a worst case basis, states that restricted the vote would be entitled to elect a reduced number of electors that would not threaten the Republican majority in the House.

This is not to say that the Fourteenth Amendment was simply a cynical political ploy. Many may well have viewed the Amendment as embodiment of Republican and American principles. Some, such as Thaddeus Stevens, the Radical Republican Congressman from Pennsylvania, believed that the Amendment did not go far enough because it did not guarantee the vote to black males.

Rather, the point is that, to many contemporary politicians and observers, Section 1 did not stand out as the most important provision of the Amendment. Much of the debate was focused elsewhere, on politically volatile issues such as those contained in Sections 2 and 3. For example, in his speech in support of the Amendment, Thaddeus Stevens spent little time on Section 1 and far more attention to later sections: “The Second Section I consider the most important article.” Cong. Globe, 39th Cong., 1st Sess. 2459 (May 8, 1866). Two days later, during a debate about Section 3, he said:

“Without that [Section 3], [the Amendment] amounts to nothing. I do not care a snap of my finger whether it be passed or not if that be stricken out. Before another Congress shall have assembled here, and before [the rest of the Amendment] can be carried into full effect, there will be no friends of the Union left on this side of the House to carry it out . . . . [T]he House will be filled with yelling secessionists and hissing copperheads. Give us the third section or give us nothing. Do not balk us with the pretense of an amendment which throws the Union into the hands of the enemy before it becomes consolidated.”

Cong. Globe, 39th Cong., 1st Sess. 2544.

This, in turn, helps explain the rather scant “legislative history” of Section 1 (that is, the amount of time and the number of words that the legislators devoted to explaining and arguing the meaning of the section). For the past eighty years or so, virtually all discussion about the Fourteenth Amendment has focused on Section 1. But at the time, that was simply not the case. In evaluating the legislative discussion of Section 1, we must always bear this in mind.