I have posted a new article, with co-conspirator Steve Sachs, and professor Jud Campbell at Stanford, on the original meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment: General Law and the Fourteenth Amendment, forthcoming in the Stanford Law Review.
Our core claim is that the privileges or immunities of citizens were defined by the unwritten general law recognized by Swift v. Tyson and later deprecated by Erie Railroad v. Tompkins.
Here is the abstract:
The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.
This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.
To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”
And from the introduction:
What kind of law defines Fourteenth Amendment rights? The answer seems obvious. Section One of the Amendment confers federal constitutional rights: to “due process,” to “equal protection,” to the “privileges or immunities of citizens of the United States.” So the content of these rights must be defined by federal constitutional law, to be divined and explicated by federal courts. Yet this seemingly obvious answer has serious flaws. The Privileges or Immunities Clause was once the core of Section One, before it was rendered a dead letter in The Slaughter-House Cases. And this Clause is often read to have guaranteed a vast swath of substantive rights, including common-law rights of property and contract—the sort of fundamental rights secured against interstate discrimination under Article IV’s Privileges and Immunities Clause, or against racial discrimination in the Civil Rights Act of 1866. But the moderate Republicans who championed the Amendment in the Thirty-Ninth Congress also staunchly opposed anything that might have upended American federalism by nationalizing the common law. So how could the Amendment have turned all of these ordinary rights into federal constitutional law?
Equally perplexing is how the drafters and supporters of the Fourteenth Amendment could have displayed such confidence about its importance while remaining so agnostic about what it actually did. Discussing an early draft in the House, Rep. John Bingham urged that “you must amend the Constitution” to assure “the immunities and privileges of citizens” to “the loyal minority of white citizens and the disenfranchised colored citizens.” Yet when introducing the measure in the Senate, Jacob Howard described “the privileges and immunities of citizens” as “a curious question,” adding that they “cannot be fully defined,” “whatever they may be.” How could members of Congress have expressed so much confusion about Section One’s likely effect and yet have voted in supermajorities to pass the Amendment anyway? And while Section One dominates the practice of constitutional law today, it received relatively scant attention in the voluminous debate over the Amendment in Congress and in the states, at least as compared to the politically immediate Sections Two and Three. How could such a fundamental measure have skated by with so little controversy?
Something in the “fundamental rights” reading has to give. . .
And from a discussion of the preliminary implications for Lochner:
The main boundaries on legislative regulation, however, came from more general principles, asking whether states had engaged in arbitrary or “partial” legislation. For example, the core evil addressed by the 1866 Civil Rights Act and the Privileges or Immunities Clause was the “Black Codes,” which diminished a slew of basic rights for black Americans. These race-based rules did not deny basic rights entirely, and the racist legislatures that enacted them claimed that they were consistent with the public good—acting, as one historian put it, under the “guise” of “advanc[ing] and protect[ing] the best interests of this unfortunate race.” In other words, some people defended the Black Codes as permissible “regulations” of basic rights, and some state courts enforced them accordingly.
Yet Republicans found the Black Codes the paradigmatic abridgment of the privileges or immunities of citizens—the product of rank prejudice rather than a regulation in promotion of the public good. And they expected that federal courts would hold them unconstitutional under the Privileges or Immunities Clause, even if the Civil Rights Act were repealed. Given these expectations, federal courts plainly were not expected to defer to state-court judgments upholding the Black Codes. As Senator Lane of Indiana had stated during debates over the Civil Rights Act, “We should not legislate at all if we believed the State courts could or would honestly carry out the provisions of the [Thirteenth Amendment]; but because we believe they will not do that, we give the Federal officers jurisdiction.” This paradigm case suggests that federal courts, once given jurisdiction by Congress, must review whether legislation exceeds state authority to regulate civil rights.
That authority has broader implications. Consider, for instance, the recurring debate about regulations of the right to contract or the right to work. When Louisiana’s legislature determined that there should be a monopoly on slaughterhouses (advantaging some butchers over others), the Supreme Court upheld the law in the Slaughter-House Cases. Decades later, when New York’s legislature determined that there should be various regulations on bakeries (advantaging some bakers over others), the Supreme Court rejected the law in Lochner. Throughout these decades there were many more such regulations, subjected to searching federal judicial review, and now widely condemned under the label of the “Lochner Era.” Yet in some sense the analysis in Lochner-era cases was a natural outgrowth of the original obligation to second-guess state legislative determinations in the Black Codes.
To be sure, one can disagree with particular results. Perhaps the regulation in Lochner was actually a reasonable one, as Justice Harlan argued in dissent. But the general dilemma raised by Lochner remains. The more deferential federal courts are toward regulations they believe to be wrong, misguided, or ill-motivated, the more deferential they might also be toward laws (such as the Black Codes) that they were supposed to invalidate. To say that courts should ask whether the law treats similarly those who are similarly situated, as Republicans often did, just restates the problem. There is no shortage of potential answers to this dilemma. Indeed, constitutional theory is full of accounts for why federal courts should recognize the invalidity of statutes like the Black Codes but not statutes like the one in Lochner. Which of these accounts is consistent with the general-law view of the Fourteenth Amendment is a separate inquiry, which we might someday undertake. For now, we simply observe that these theories respond to a real ambiguity, one that cannot easily be avoided by the tempting rhetoric of a Justice Holmes.