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Abstract:
This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which are fundamental.”

In exploring the meaning of the terms, the article notes it breadth, as articulated by Section 1 author John Bingham (R-Ohio) and Justice Strong in West Virginia v. Strauder. Examples are provided from Congressman Bingham, Justice Bradley, and Judge Thomas G. Jones in his turn of the century decision in Ex parte Riggins.

Insight into how to apply the privileges or immunities clause is taken from Justice Robert Jackson, Justice Joseph P. Bradley and Justice Benjamin R. Curtis. Insight into the possibility that privilege and immunities would change is seen in the agreement between Justice Miller and Justice Bradley that constitutional amendments could change the content of the words. Further examples are given through the adoption of treaties and the 1866 Civil Rights Act.

Because some concern has been expressed concerning the effect of using privileges or immunities clause upon establishment clause jurisidpurence, the history of the “secession” of slaveholders from the national churches and their establishment of pro-slavery churches which prohibited free exercise is examined. The insights provided by this history leads to the conclusion that a principled application of the privileges or immunities clause would not work any change in the current establishment clause jurisprudence.

This approach is also tested with respect to a matter currently pending on certiorari in the U.S. Supreme Court: the enforcement of a right to bear arms against the states. The clauses are also analyzed to see how they would better protect the writ of habeas corpus than the inference drawn from Article I, Section 9, Clause 2. Finally, an example of how the use of the privileges and immunities clause might give a more principled and secure protection for established rights is illustrated by the application of the clauses to a “right of family life” that would replace the substantive due process approach used in Moore v. City of East Cleveland.

The article concludes by noting that in spite of Saenz v. Roe, scholars and lawyers have not been very diligent in advancing claims under the privilege or immunities clause and provides reasons why such course should be pursued.

Article IV, anti-establishment clause, right to bear arms, writ of habeas corpus, Fourteenth Amendment, right of family life, Civil Rights Act of 1866, Congressman John A. Bingham, fundamental rights, rights of citizens, privilege or immunities clause, privileges and immunitites

Abstract:
The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of 60% of the members who were freshmen and the 39th Congress had 40%of the members who had never been in Congress before. The relatively inexperience of the Congress as a whole would suggest that the senior members – men such as the members of the Joint Committee on Reconstruction – would exercise an enhanced amount of influence. This study also reports the initial results of a more detailed examination of its membership. A large majority – over 150 – of its members were lawyers. In an era in which only one per cent of the population had a college degree, a small sample of Congressman (those whose last name begins with the letter “D”) 47% were college graduates. Further, an examination of individual Congressmen suggests that many of the college graduates had taken law-related courses in college. Though the apprenticeship model was still the predominant way in which lawyers came to the bar, there were numerous members of the Congress who both studied under the preceptor system and graduated from a law school. Three of the challenges the 39th Congress faced are examined. The first challenge was dealing with the immense of life and property because of the war. Second, though with the benefit of hindsight we know the Civil War was essentially over after the surrender of General Robert E. Lee’s Army in April 1865, it was not clear at the time that this was the case. Not only did fighting continue, but individuals and whole military units fled to Mexico. President Johnson did not declare the insurrection at an end in most of the insurrectionary states until April 2, 1866 . President Johnson did not declare the insurrection over it in Texas until August 20, 1866, after three states had already ratified the Fourteenth Amendment. Third, Andrew Johnson’s commitment to white supremacy mean that he was not just actively opposing the Congress on policy matters, but actually undermining the enforcement of the law and taking actions that, at least indirectly, resulted in the loss of life in the South. Congress responded to these conditions with the extension of the Freedman’s Bureau Act, the adoption of the Civil Rights Act of 1866, and the proposal of the Fourteenth Amendment. Congress’s overall goal – like national goals at the end of World War I, World War II, and the second Gulf War – was to end the war and secure the peace so that there would be no similar war in the future. The last portion of the article draws parallels between other post-war actions and that during Reconstruction and makes connections between the steps taken by the 39th Congress and their overriding goal of securing future peace.

privileges and immunities, privilege or immunities, fourteenth amendment, Article IV, Civil Rights Act of 1866, Congreeman John A. Bingham, Joint Committee on Reconstruction, challenges facing 39th Congress, securing the peace, President Andrew Johnson, ratifying states

Abstract:
This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states.

It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman’s Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the most racist national political campaign in U.S. history.

By looking at the political shift begun in 1871 and the “long depression” (Panic of 1873), the article documents the reasons why the public understanding of the amendment can best be found during the period prior to ratification. There is a brief examination of Slaughter-House, Cruikshank, Hurtado, and Twinning. It suggests that one of the key mistakes in current scholarship is the assumption that certain rights could only be enforced by the state or the national government. Borrowing from Madison’s concept of “double security” and Pomeroy’s then contemporary treatise, it suggests that many rights can be protected by both.

Utilizing numerous articles from Harper’s Weekly, free speech is used as an illustration of the common, public understanding of the rights the public believe they had and intended to secure as a result of the war. The article explores common mistakes in confusing claims of substantive rights with non-discrimination and equality, noting that the two approaches often overlapped.

Later sections examine the debates involving Charles Fairman, W. W. Crosskey, Justice Frankfurter, Justice Black, Raoul Berger, Michael Kent Curtis, George Thomas and Bryan Wildenthal. The current perils of trying to rely exclusively upon incomplete and inaccurate newspaper data bases is documented.

New light is thrown upon the role of Senator Jacob Howard and his relationship Senator Fessenden, Chair of the Joint Committee on Reconstruction. Further, responding to another article in the symposium, this work concludes that the only real contemporaneous conflict between enforcing the Bill of Rights against the states and the grand jury was in the single state of Kansas.

Finally, there is a brief examination of the future of scholarship upon these issues.

Freedman's Bureau, Civil Rights Act of 1866, Fourteenth Amendment, Privileges or Immunities, Panic of 1873, Election of 1872, Liberal Republicans, Barron v. Baltimore, 39th Congress, John Bingham, 19th Amendment, 21st Amendment, Slaughter-House, Cruikshank, Hurtado, Twining, free speech

Abstract:
This essay uses 22 years of administrative experience as an Associate Dean, Interim University Athletic Director, and Dean of a School of Law as a platform from which to provide ideas and examples about how one balances administrative duties with family obligations. Because the essay was part of the University of Toledo College of Law's annual "Leadership in Legal Education Symposium VII" its focus is upon the role of a law dean. However, the concepts are equally applicable to those holding or considering other law school or university administrative positions.

dean, associate dean, interim athletic director, administrator, family, family life

Abstract:
The Slaughter-House Cases are simultaneously unremarkable and extraordinary. They are unremarkable because the matter at issue - whether butchers can be required to ply their trade at a central, state-franchised facility - has long since ceased to be a matter of concern. They are extraordinary because in spite of the fact that three of the Court's significant legal conclusions have been rejected and “everyone” agrees the Court incorrectly interpreted the Privileges or Immunities Clause, the conclusion that the Privileges or Immunities Clause of the Fourteenth Amendment had no meaningful place in our constitutional scheme continues to live on.

Even those who have a narrow view of the Fourteenth Amendment conclude that beyond due process and equal protection, the Fourteenth Amendment was “meant to establish some substantial rights” and that “these were the ‘privileges and immunities of citizens of the United States.”’ Yet almost all sources agree that Justice Miller's majority opinion in the Slaughter-House Cases, or at least its dicta, “virtually scratched [the Privileges or Immunities Clause] from the constitution.”

This Article argues that Justice Miller's majority opinion was indeed based on an incorrect reading of the Fourteenth Amendment, and then explores why Justice Miller, as well as the other Justices in the majority and the dissents, reached the conclusions they did. Part I sketches the basis for the view that the Privileges or Immunities Clause of the Fourteenth Amendment was designed to protect substantive rights, primarily the Bill of Rights, from state abridgement. Part II examines the Slaughter-House decision, summarizing the arguments presented by counsel and analyzing the opinions written by Justices Miller, Field, Bradley, and Swayne. Part III critiques Justice Miller's opinion. Part IV seeks to explain the positions of the Justices by examining the political background of each of the Justices and, where available, their personal reactions to the adoption of the Amendment. Part V tests this analysis of the opinions and background of the Justices against the popular and professional commentary on the Slaughter-House opinion from 1873 to 1949.

Slaughter-House cases, Justice Miller, Fourteenth Amendment, Privileges or Immunities Clause

Abstract:
The scope of the Fourteenth Amendment determines, in large measure, the allocation of responsibility and power between the states and the government of the United States. It has been characterized as “the most significant [Amendment] in our history” and a “second American Constitution.” It is therefore not surprising that some of the most important disputes in the United States Supreme Court have been over the meaning of the Fourteenth Amendment and that the disputes have involved some of the most important legal thinkers of our times.

In the twentieth century, one of the most familiar articulations of differing views occurred in Adamson v. California, a five-four decision, in which Felix Frankfurter's concurring opinion represented the best efforts of the majority and in which Hugo Black wrote an equally powerful minority opinion. This judicial battle between competing views of the Amendment continued intermittently throughout the march to “incorporate” additional amendments or portions of amendments, becoming particularly explicit in the six-three decision of Bartkus v. Illinois, and the seven-two decision of Duncan v. Louisiana. Even today there are suggestions of a new Court debate over the incorporation doctrine.

This clash in the Court was paralleled in the academic world by the work of Stanford, Washington University, and Harvard Law Professor Charles Fairman and Yale prodigy and University of Chicago Law Professor William W. Crosskey. That these were not mere academic debates is shown by the fact that Justice Frankfurter's opinion in Bartkus alluded to Crosskey's work, and the efficacy of Fairman's research was a matter of dispute in both Bartkus and Duncan.

While it appears that the work of Justice Black and Professor Crosskey was completed independently, that of Justice Frankfurter and Charles Fairman was one of mutual support and encouragement. This article explores the Fairman/Frankfurter relationship against the background of the incorporation debate and its relationship to the lives of Justice Black and Professor Crosskey.

Part I discusses the shared values of Felix Frankfurter and Charles Fairman, including their admiration for James Bradley Thayer, Justice Miller, and Justice Bradley and their jaundiced view of Reconstruction. Part II summarizes the relationship between Frankfurter and Fairman during Fairman's developing career. Part III presents a chronology of Fairman's most relevant Fourteenth Amendment-related writings, developing the relationship between Fairman and Frankfurter where documentation exists to do so. Part IV discusses the last years of Justice Black, Professor Crosskey, Justice Frankfurter, and Professor Fairman. Part V concludes with a search for the meaning we can draw from this research.

Fourteenth Amendment, Charles Fairman, Justice Felix Frankfurter, William W. Crosskey, Justice Black

Abstract:
One of the earliest cases interpreting the Article IV privileges and immunities clause is that of the Maryland General Court in Campbell v. Morris, 3 H. & McH. 535 (Md. Gen. Court, 1797). Because of the supposed link between Article IV and the Fourteenth Amendment, scholars, particularly Charles Fairman and Raoul Berger, used Campbell to try to support a narrow reading of the Fourteenth Amendment. With the U.S. Supreme Court’s granting of certiorari in McDonald v. Chicago, ___ U.S. ___, 174 L. Ed. 2nd 632, 78 U.S. L. W. 3169 (September 30, 2009), the issue of the enforcement of the Bill of Rights against the states is again before the Court and there is a renewed interest in Campbell.

The question of the importance of this case – especially in comparison with Justice Bushrod Washington’s later Circuit Court decision in Corfield v. Coryell 6 F. Cas. 546, No. 3230. (C.C.E.D.Pa. 1823) - is a matter of some disagreement to be addressed in a subsequent article. However, this essay suggests that working with a case from 1797 under old Maryland procedures has proven to be a challenge to many authors. Scholars utilizing this case have often:

• Mistaken the name and authority of the court which decided the case. The General Court was not the highest Court in Maryland, but rather a trial court;
• Mistaken the identity of the judge who was its author. The author was not future U.S. Supreme Court Justice Samuel Chase, but rather his more obscure cousin, Jeremiah T. Chase.
• Misinterpreted the case itself by failing to note that the portion treating Article IV was dicta because the General Court vacated the attachment of property, making it unnecessary to reach the question of whether the Maryland attachment statute violated Article IV.
• Misinterpreted the dicta. While some of the dicta focused upon equality/non-discrimination (“in the same manner” and “on the same footing”), parts of the dicta indicate that substantive rights are protected: the right to obtain property and the right of securing and protecting “personal rights.”
• Overlooked the fact that the trial court was overruled by the Maryland Court of Appeals and
• Generally reached erroneous conclusions in trying to assess its impact. This case was often cited on state law issues (attachment, equity interests in property) in the first fifty years after it was decided. But in that same time period, Campbell was cited by only one Maryland Court, in dicta, on an Article IV issue and by no courts outside of Maryland.

The goals of this essay include trying to correct these errors and help future scholars avoid repeating them. It is also hoped that a better understanding of Campbell will help inform our understanding of the Fourteenth Amendment.

Article IV, Section 2, privileges and immunities clause, Raoul Berger, Campbell v. Morris, Jeremiah T. Chase, Samuel Chase, Corfield v. Coryell, Charles Fairman, Fourteenth Amendment, Maryland Court of Appeals, Maryland General Court, Justice Bushrod Washington

Abstract:
Nearly fifty years ago, Professor Charles Fairman published his seminal article, Does the Fourteenth Amendment Incorporate the Bill of Rights? According to Fairman, it does not. Fairman's analysis of the congressional debates and other historical data on the Fourteenth Amendment led him to conclude that the Privileges or Immunities Clause of the Amendment does not make the Bill of Rights applicable to the states. Instead, Fairman argued that the intent of the Amendment's framers is most nearly realized by the use of the Due Process Clause to enforce against the states only those rights “implicit in the concept of ordered liberty." Fairman reached this conclusion only by dismissing as unreliable numerous statements by Congressman John Bingham, the principal author of Section One of the Fourteenth Amendment. Bingham had repeatedly stated his belief that the Fourteenth Amendment would enforce the Bill of Rights against the states. Fairman argued that Bingham's position was muddled, inconsistent and idiosyncratic.

Scholars came to view Fairman's work as the “classic” interpretation on this subject and, in the forty-four years since its first publication, his analysis has “shaped much of the constitutional field.” Many prominent writers adopted Fairman's interpretation of the incorporation debate, often sharing his assessment of Bingham's abilities. Indeed, Fairman's article has been one of the most cited law review articles written since World War II. Still, Fairman has not been without detractors. William Crosskey was, for many years, the most prominent critic of Fairman's work. Crosskey reviewed the same historical record as Fairman, but drew quite different conclusions. He described Bingham as an able person whose theories were “the common faith” of the Republican Party and argued that the historical evidence reveals that the framers of the Fourteenth Amendment intended the Amendment to enforce the Bill of Rights against the states.

Despite Crosskey's analysis and exhaustive research, his critique did little to diminish acceptance of Fairman's work, perhaps because of Crosskey's unconventional ideas in other areas of constitutional law. For instance, Justice Felix Frankfurter, whose 1947 disagreement with Justice Black in Adamson v. California prompted Fairman's original project, never acknowledged Crosskey's criticisms of Fairman. More than a decade after Adamson, Justice Frankfurter remained convinced that Fairman's analysis was correct and described his proof as “conclusive.” As late as 1968, the exchange between Professors Fairman and Crosskey remained “the only full-dress discussion of [the incorporation debate] in legal periodicals” and was “far more comprehensive than any of the United States Supreme Court cases on this point.”
A decade later, Raoul Berger published Government by Judiciary. Although much of Berger's book questioned the legitimacy of the Supreme Court's decisions in Brown v. Board of Education and Baker v. Carr, Berger also discussed whether the Fourteenth Amendment should be construed to enforce the Bill of Rights against the states. Relying on Fairman's analysis as well as his own reading of the original sources, Berger concluded that Bingham was a “muddled” thinker whose views should be discounted, and agreed with Fairman that the framers of the Fourteenth Amendment did not intend it to enforce the Bill of Rights against the states. Unlike Fairman, however, Berger rejected even selective incorporation, arguing that the Amendment's framers did not intend that any of the first eight amendments should be made applicable to the states through the Fourteenth Amendment.

In 1980, Michael Kent Curtis responded to Berger's analysis in the first round of what was to become an extended exchange between the two. Curtis criticized both Fairman's and Berger's scholarship. He found Bingham's constitutional theory understandable, and, like Crosskey, concluded that the Fourteenth Amendment applied the Bill of Rights against the states.
Building on the work of Crosskey, Curtis, and Alfred Avins, this Article seeks to strengthen the argument that the Fourteenth Amendment applies the first eight amendments to the states. In particular, this Article focuses on the ideas and influence of John Bingham, the Amendment's principal author. It identifies several sources, some not previously discussed in the literature on this subject, which demonstrate that Bingham intended the Fourteenth Amendment to enforce the Bill of Rights against the states and that many of his contemporaries shared his belief regarding the Amendment's purpose. This Article also argues that Fairman misread critical sources, relied on information taken out of context, ignored important contemporary materials, and buttressed his argument with a flawed legal theory. As a result, this Article argues, Fairman's portrait of John Bingham is distorted and unfaithful to the historical evidence.
Part I of this Article describes the 1947 dispute between Justice Felix Frankfurter and Justice Hugo Black over incorporation and summarizes Fairman's subsequent analysis of the purpose of the Fourteenth Amendment with respect to the Bill of Rights. Part II criticizes Fairman's portrait of Bingham as “befuddled” and unreliable, arguing that a comprehensive and fair reading of the historical evidence shows that Bingham consistently espoused a cogent theory about the purpose of the Fourteenth Amendment, and that Fairman, not Bingham, was confused about the Amendment's purpose. Part III refutes Fairman's claim that Bingham's views were “singular,” and shows that, contrary to Fairman's assertions, many of Bingham's contemporaries shared his beliefs. Prior to the Civil War, proponents of antislavery constitutionalism supported legal arguments which coincided with elements of Bingham's constitutional theory. Between 1864 and 1871, congressional leaders, jurists, the Ohio Republican Party, the voters of Ohio, and nationally recognized authors of three major legal treatises all endorsed positions consistent with Bingham's constitutional theory. A fourth treatise, cited by Fairman to indicate the “singularity” of Bingham's views, does not, in fact, provide contemporary support for Fairman's argument.

Part IV addresses Fairman's most credible argument. Fairman noted that during the period of the Amendment's ratification, jury practices of many states did not comply with the requirements of the Fifth, Sixth and Seventh Amendments. Fairman argued that had state representatives understood the Fourteenth Amendment to enforce the Bill of Rights against the states, they would not have voted to ratify the Amendment without first discussing the need to change provisions in their own constitutions and statutes that conflicted with the Bill of Rights. Part IV concludes, however, that the conflicts Fairman identified lack the interpretive power he attributed to them because, as Fairman's own examples indicate, many supporters of the Fourteenth Amendment were either unaware of or unconcerned with these conflicts. Part V documents the consistency between Bingham's views and the earliest federal cases interpreting the Fourteenth Amendment. It demonstrates that subsequent decisions such as the Slaughter-House Cases and United States v. Cruikshank repudiate rather than express the intent of the framers of the Fourteenth Amendment.

Part VI concludes that Bingham's views on the Fourteenth Amendment should be credited and Fairman's scholarship on this subject disregarded. This Part sketches the application of Bingham's views to the current constitutional landscape and notes changes in incorporation doctrine that logically follow. Finally, it outlines the challenge to originalist thinkers to determine how the Supreme Court can properly determine which privileges or immunities, beyond the Bill of Rights, the Fourteenth Amendment protects.

privileges and immunities, privilege or immunities, fourteenth amendment, Article IV, Bill of Rights, Congressman John A. Bingham