A reader asks what was Rep. John Bingham’s understanding of the privileges and immunities under Article IV §2 and whether he understood them to apply to resident citizens of a State. Good questions since Rep. Bingham made it very clear the Fourteenth Amendment incorporated Article IV, §2 privileges and immunities jot-for-jot in order to provide for their enforcement only.
Bingham, like all abolitionists, viewed Article IV §2 as an anti-discriminatory provision that if voluntarily recognized would prevent States from discriminating against citizens of other States (read: newly emancipated black citizens) in their fundamental rights in security of life, liberty and acquiring property. This was a big deal after the civil war because of the large migration of emancipated black citizens moving about from State to State. Rep. Bingham would a number of times elevate the “citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States” under Article IV §2 to the level of a “sacred bill of rights.”
This of course could lead to mass confusion with those not familiar with his constitutional thinking whenever they encounter him referring to the “bill of rights” in his speeches, not knowing for sure if he was speaking of the Comity Clause or the first eight amendments. The following remark by Bingham illustrates his understanding of the Comity Clause as anti-discriminatory:
When you come to weigh these words, “equal and exact justice to all men” go read, if you please, the words of the Constitution itself: The citizens of each State (being ipso facto Citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.
The Civil Rights Bill of 1866 was Congress’ first attempt to enforce all the privileges and immunities of citizens of the United States by declaring there shall be no discrimination between citizens on account of race or color in their privileges and immunities. What did Congress and Bingham believe were the privileges or immunities of United States citizens? They believed Article IV §2 placed citizens of one State on the same equal footing in terms of fundamental protections of life, liberty and property of the citizens of the State they ventured into. That is, they viewed Article IV §2 as preventing one State from discriminating against citizens of another State when they come within their limits in the fundamental protections of life, liberty and property.
Bingham writing for the House Judiciary Committee in House Report No. 22 in 1871 confirms this understanding by citing Justice Story and Webster:
The learned Justice Story declared that the intention of the clause (“the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States”) was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances. (Story on the Constitution, volume two, page 605.)
In the case of the Bank of the United States vs. Primrose, in the Supreme Court of the United States, Mr. Webster said:
“That this article in the Constitution (article four, section two) does not confer on the citizens of each State political rights in every other State, is admitted. A citizen of Pennsylvania cannot go into Virginia and vote at any election in that state, though when he has acquired a residence in Virginia, and is otherwise qualified as is required by the constitution (of Virginia) he becomes, without formal adoption as a citizen of Virginia, a citizen of that State politically.” (Webster’s Works, volume six, page 112.)
By no means did Article IV §2 provide for uniform privileges or immunities from one State to the next. Woman who enjoyed property rights within their own State of residence could never claim the same rights in a State that did not grant such rights to its own female citizens. The privileges and immunities of United States citizens is a straightforward concept but with both Bingham and Sen. Howard’s reference to “amendments” under the federal Bill of Rights muddy the waters — or so it seems.
Both Bingham and Howard talked about the first eight amendments and how they relate to the privileges and immunities of citizens of the United States versus citizens of a State while pointing out they did not bind the States in anyway. Bingham remarked in February of 1866 that the “existing amendments are not applicable to and do not bind the States, they are nevertheless to be enforced and observed in States.” Howard said essentially the same thing.
Bingham is not talking about existing federal amendments to be observable with citizens within their own State, but by citizens of the United States who are not citizens of the State (or any State for that matter). This of course describes the condition of newly freed slaves who had been declared citizens of the United States but were not yet citizens of any State from gaining the same protections under Article IV §2. Prior to the Fourteenth Amendment a person was required to be a citizen of a State for purposes of Article IV §2, the Fourteenth changed that to cover citizens who were not citizens of any State (emancipated blacks).
There was no legal theory that said the first eight amendments made up the privileges and immunities under Article IV §2, and there was no federal Bill of Rights when Article IV §2 was adopted nor any suggestion they had become part of the privileges and immunities under Article IV §2 after they had been adopted. In addition, Bingham said nothing was added to the “privileges and immunities” under the Fourteenth Amendment in House Report No. 22, and asserted they were an identical import to the privileges and immunities under Article IV §2.
Bingham pointed out to Rep. Garfield on April 4, 1871 that the only difference between Article IV §2 and the Fourteenth Amendment is that Article IV §2 did not include the words “citizens of the United States.” Did this fact make any fundamental difference? No because as already demonstrated Bingham viewed Article IV §2 as the privileges and immunities of United States citizens. This means it is futile to argue the addition of the words “citizens of the United States” introduced any new meaning to the privileges and immunities of citizens of the United States.
Since both Bingham and Howard were insistent they were speaking of the privileges and immunities of citizens of the United States under Article IV §2, leads us to the only logical conclusion they were merely using the federal amendments to define in general terms those fundamental rights the States already guaranteed to their own citizens for which they were obligated to extend to citizens of the United States under Article IV §2.
They may had extra reason to refer to the federal Bill of Rights because former rebel states were under United States jurisdiction until new State constitutions had been adopted and restored as States. In the mean time, the federal Bill of Rights was the privileges and immunities for all citizens of the union within these former rebel States.
It would clearly be an abridgment of the privileges and immunities for any State to deny a trial by jury to citizens of another State (citizens of the United States) simply because they are naturalized citizens from a certain country or race. Since there was no universally accepted theory explaining how the privileges or immunities of United States citizens could embrace the first eight amendments under the federal Constitution, would had required explicit language to accomplish this under the Fourteenth Amendment. The absence of this explicit language speaks volumes.
There is no evidence that Congress or Bingham viewed the Comity Clause as anything a citizen of a State could claim against his or her own State. As Bingham makes clear as quoted earlier, “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.” He asked “that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.”
He asked Rep. Robert Hale “to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States.”
On May 14, 1868, Bingham declares the Fourteenth Amendment protected the privileges and immunities of United States citizens the same way as did Six United States Statutes-at-Large, 645 had by preventing Missouri from depriving “the rights and privileges of a citizen of the United States within the limits of that State.” That provision protected the privileges and immunities of United States citizens by declaring the Constitution of Missouri should “never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which any citizen of either of the States of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States [Article IV §2].”
Rep. Bingham further confirms the understanding that it is the privileges or immunities of citizens of a State which citizens of other States were entitled when he said: “It (privileges and immunities clause) is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”
Therefore, it is clear Congress and Bingham viewed the Comity Clause no differently than earlier law commentators had in that it served to prevent States from placing citizens of other States on an unequal footing with their own citizens in terms of fundamental protections in life, liberty and property. In other words, it removed “alienage” so citizens of one State could go into other States to purchase property, make and enforce contracts, sue, receive a trial for crimes, etc., just as Congress spelled out in the Civil Rights Bill of 1866.
Did the Fourteenth Amendment change anything in terms of rights and protections of citizens of the United States? Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, said in 1871, “The fourteenth amendment has not extended the rights and privileges of citizenship one iota. They are right where they always were.” In other words, fundamental rights States are required to extend to citizens of the United States are still those fundamental securities in life, liberty and property secured by every State to its own citizens.
Looks like the Slaughter-house cases formulated the proper interpretation for the Privileges and Immunities Clause. I can’t see the court disturbing this decision since it fits the facts so well.
Therefore, Bingham and Howard likely were using the Federal Bill of Rights to illustrate those fundamental rights found in all State constitutions for which they were required to observe for all citizens from everywhere in the union. Yeah, that makes a lot more sense than trying to make sense of how article IV P&I’s could suddenly become the first Eight Amendments considering Bingham said the 14th Amendment left them in their original state as found under Article IV by not adding new privileges.
Great explanation to why Bingham linked the P&I’s to the BoR’s and brings the House Judiciary Committee Report into harmony with Howard and Bingham’s remarks. Otherwise nothing makes sense because as you say there never was any serious theory that said the P&I’s of the comity clause included any of the first 8 amendments of the U.S. constitution.