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Does the Privileges or Immunities Clause Support Judicial Activism?

The Privileges or Immunities Clause

An Epistmically-Informed Activismometer

"The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States."

Equality in 1803

Equality in 1820

Equality in 1866

Equality in 1857

The Original Sense of the Privileges or Immunities Clause

"To Establish an Uniform Rule of Naturalization"

" [C]an a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? ... [I]t is hardly consistent with the respect due to these States to suppose that they regarded at that time as fellow citizens and members of the sovereignty, a class of beings whom they had thus stigmatized, whom, as we are bound out of respect to the State sovereignties to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation..."

Three Epistemic Principles

1839: "[T]he said Brothertown Indians, and each and every of them, shall then be deemed to be, and from that time forth are hereby declared to be, citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges, and immunties of such citizens..."

The Drunk under the Constitutional Lamp-Post: Distinguishing Epistemology from Ontology

Is it raining in Oslo?

Yes.

No.

I don't know.

Stick to What You Know! (G.E. Moore, Timothy Williamson, (Paul) Gricean Quality)

Say What You Know! (Gricean Quantity)

Have Enough Evidence Given the Stakes! (Keith DeRose, John Hawthorne, Jason Stanley)

"The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."

Some options: (a) enumerated-rights-only (Lash), (b) comity (Hamburger), (c) natural rights (Barnett), (d) 1868 (Maltz, Calabresi)

The "abridge" argument: federal rights, natural rights, historical rights can't be shortened by state action today

Lots of equality evidence, good bit of basic-rights evidence

The goal: putting equality and basic rights together as simply and elegantly (as non-gruesomely) as possible

Natural-rights and 1868-focused readings have trouble making sense of the equality component, which clearly did not reach as far as the natural right to equality, and had to go beyond equality in things given in 1868

Could reject one component, but there's too much evidence of both components to do that

Could combine them as two independent requirements of a claim under the Privileges or Immunities Clause--equality with respect to basic rights--but then all the evidence is misleading

Could combine them as two independent restrictions on states, but this is a little odd textually

Could see basic rights as definitional, and enforce equality to the extent it meets the basic-rights criterion

Could see equality as definitional, as take the violation of basic rights for which there is a national consensus as the imposition of inequality: most citizens of the United States get it, but not those in a particular outlier state--this is the option I prefer

"The Citizens of Each State Shall Be Entitled to All Privileges and Immunities of Citizens in the Several States."

Governed by Knowledge as Norm of Assertion, Varying Assessments of Stakes in Judicial Review

A less helpful definition of judicial activism

David Strauss: "[T]he originalist project [is] a particularly difficult, challenging form of intellectual history and one that often will, to the honest originalist, turn up the answer 'I don’t know,' or 'there were various ideas and none clearly prevailed,' or 'they were just confused back then.' That is one difficulty with originalism. Too often, it will be just too hard to figure out the answers to the relevant historical questions."

Paul Horwitz: "[O]riginalism, of whatever variety, is an approach to constitutional law that actively forces judges into a field in which they arguably lack expertise. It increases rather than decreases the epistemological problem. If you were looking for a judicial methodology of constitutional interpretation that avoided putting judges in a position for which they're ill-suited, presumably you would focus on what judges do well and often--crunching doctrine--rather than on an approach that requires them to do history. Originalists argue that they are required to do some form of history because that is what legitimate constitutional interpretation requires. Presumably, then, they would argue that whether they can do it well or not, it's what they're called upon to do just the same..."

Justice Scalia: "The most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei ['everything changes'] is not a sufficiently informative principle of constitutional interpretation."

Activismometer

Examples

3

"No State Shall Make or Enforce Any Law which Shall Abridge the Privileges or Immunities of Citizens of the United States."

4

Adverbial "In"

2

1787

1788

1789

1791

1866

1867

1868

1954

1973

2013

Suppressed "Similarly Situated"

The Ellipsis Reading

Only find statutes unconstitutional if shown by clear & convincing evidence

Contra Strauss and Horwitz, just because the light is better here doesn't mean this is the actual Constitution

Clarity

Only find statutes unconstitutional if shown beyond a reasonable doubt

Find statutes unconstitutional if shown by preponderance of evidence

Breach of Knowledge as Norm of Assertion (Gricean Quality)

Breach of Knowledge as Norm of Assertion (Gricean Quantity)

Issues Resolved by Constitution

Issues Resolved by Elected Branches

Big

Constitution

Reasonable Doubt

3

Preponderance

T h e C o n s t i t u t i o n

Common-law

Constitution

1

5

Sharp distinction between "privileges and immunities of citizens of the United States" and "privileges and immunities of citizens in the several States" requires adjectival "in"

Adverbial "in" makes Article IV ambiguous--simply refers to "privileges and immunities of citizens" which are then enjoyed "in the several states"

Fits naturally with comity reading of Article IV

Chief Justice Marshall, Fletcher v. Peck (1810): "The question whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."

4

2

Deliberate ignorance of relevant considerations

Judge Easterbrook, Cass Sunstein each define activism in terms of numbers of laws struck down, i.e., their view of the size of the Constitution

Find statutes unconstitutional, even though ignorant of relevant considerations

Lots of folks--e.g., John Bingham in February 1866 and January 1867--read Article IV to mean "The Citizens of Each State Shall Be Entitled to All Privileges and Immunities of Citizens of the United States in the Several States."

Some read Article IV to mean that visitors to other states got the rights of even the most highly-favored set of citizens in the state they were visiting; others (e.g., Rep. William Lawrence in April 1866, responding to Johnson's veto) limited Article IV to the rights of similarly-situated citizens

Justice Bushrod Washington, Ogden v. Saunders (1827): "It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt."

Steven Calabresi: "Since judgments of constitutionality are made by all three branches of the federal government acting together, a law that arrives in court with the imprimatur of two of the three branches should be presumed constitutional. And, the courts should be restrained in striking the law down except where it appears by a preponderance of the evidence to conflict with the Constitution. I would not go as far as James Bradley Thayer and invalidate only laws that are clearly and beyond a reasonable doubt unconstitutional. But I do think the burden of proof lies on those who are challenging the constitutionality of a law or of an executive action."

George Mason at convention: "It had been said (by Mr. L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law.”

Chief Justice Lemuel Shaw, In re Wellington (Mass. 1834): “[W]hen called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.”

Originalist

Constitution

Unconcern with known constitutional violations, Suppression of relevant positive evidence

Judicial review

without knowledge, suppression of relevant negative evidence

Judge Reinhardt, Perry v. Brown: "We need not decide whether there is any merit to the sociological premise of Proponents’ first argument—that families headed by two biological parents are the best environments in which to raise children—because even if Proponents are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California. As we have explained, Proposition 8 in no way modified the state’s laws governing parentage, which are distinct from its laws governing marriage.... Both before and after Proposition 8, committed opposite-sex couples ('spouses') and same-sex couples ('domestic partners') had identical rights with regard to forming families and raising children.... Similarly, Proposition 8 did not alter the California adoption or presumed-parentage laws, which continue to apply equally to same-sex couples.... In order to be rationally related to the purpose of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify these laws in some way. It did not do so."

1

5

A Philosophically-Informed Judicial Activismometer

Daniel Webster in 1829, criticized by James Bradley Thayer as denying deference to legislatures in judicial review: "The correct ground is this, that the Court shall interfere and declare an act to be void, where the case, which may have been doubtful, shall be made out to be clear by examination."

Perry and social meaning

Justice Blackmun, Roe v. Wade: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer."

Perry: "[W]e emphasize the extraordinary significance of the official designation of 'marriage.' That designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not. … [T]he designation of 'marriage' itself … expresses validation, by the state and the community, and … serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important."

Frank Schechter, The Rational Basis of Trademark Protection (1926): "The real injury in all such cases can only be gauged in the light of what has been said concerning the function of a trademark. It is the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name by its use upon noncompeting goods. The more distinctive or unique the mark, the deeper is its impress upon the public consciousness, and the greater its need for protection against vitiation or dissociation from the particular product in connection with which it has been used."

Small

Constitution

Issues Resolved by Constitution

Issues Resolved by Elected Branches

Justice Frankfurter, Mishawaka Rubber (1942): "The protection of trademarks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same—to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress."

Justice Brandeis, O'Gorman (1931): "It does not appear upon the face of the statute, or from any facts of which the court must take judicial notice, that in New Jersey evils did not exist in the business of fire insurance for which this statutory provision was an appropriate remedy. The action of the legislature and of the highest court of the State indicates that such evils did exist."

Justice Jackson, Youngstown concurrence: "A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other."

Contra Scalia, just because the light is better here doesn't mean this is the actual Constitution

The Constitution

Relationship to the Equal Protection Clause

The Discussion in Congress

The Newspaper Literature

The Civil Rights Act of 1866

Dozens of times, Democrats charged that the Privileges or Immunities Clause would require black voting, and the Republicans replied, "No, it won't, because women & children are citizens, and they can't vote"

Common ground in this dispute: the Privileges or Immunities Clause was about equality, and it applied to women & children too

Republican response makes no sense on enumerated-rights-only view; they should instead have stressed lack of constitutionally-enumerated right to vote

Independent of these discussions, a great many people explain Privileges or Immunities Clause in terms of equal rights

Schuyler Colfax very clearly describes Privileges or Immunities Clause in terms of the Civil Rights Act of 1866

Several references to freedom of speech and assembly--as violated by the President in New Orleans--as a paradigmatic privilege of citizens of the United States, but we have to distinguish examples from definitions

Does the Privileges or Immunities Clause Support Judicial Activism?

Subsequent Interpretation

On my reading, the Privileges or Immunities Clause requires equality in privileges among similarly-situated citizens of the United States

To establish a basic right for all citizens of the United States (e.g., as in incorporation cases), we have to show a consensus among the states--this won't rock the boat much

It may shut down the laboratory of the states earlier than some might like, but of course we should be able to re-open it if enough states indicate a willingness to do so; consensus may erode as well as emerge

Within a state, there is also an equality requirement, and if paired with a sufficiently-aggressive judicial findings on similarity, this could give courts an awesome amount of power

However, if "judicial power" is limited to clear cases of similarity, as it is, and if judges are duty-bound to be epistemically humble, as they are, this interpretation of the Privileges or Immunities Clause should not on its own license judicial activism

The Privileges or Immunities Clause is perhaps like a precursor chemical to judicial activism: in the wrong hands, it could certainly produce it, so it's very important not to let it be in the wrong hands

Voting rights dispute in 1869: Howard says voting is excluded from Article IV, so it's also excluded from the Privileges or Immunities Clause

January 1871: Bingham rejects women's suffrage in report for Judiciary Committee, citing Corfield; says same privileges as Article IV

Civil Rights Act of 1871: Huge number of duty-to-protect interpretations of Equal Protection Clause offered all throughout March (including by Bingham)

Bingham's March speech says different privileges from Article IV

US v. Hall, 1871: Privileges or Immunities Clause protects same rights as in Corfield, and among these are the rights in the Bill of Rights

Huge number of equality-based interpretations in Congress beginning in 1872; Republicans argued that the Privileges or Immunities Clause required equality (and integration) in education, jury, and common-carrier rights

February 6, 1872: Attacking the Republican argument, Democrat Allen Thurman adopts enumerated-rights only reading (though on January 23, he referred to the right to testify as covered); John Sherman relies on Ninth Amendment to rebut, stresses tradition

May 1872: Garnes suggests enumerated-rights-only reading, with separate-but-equal backup

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