December 29, 2008
Report on the Privileges or Immunities Clause
The Constitutional Accountability Center has released The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment by David H. Gans and Douglas T. Kendall. The report, according to the announcement, "tells the sad story of the Privileges or Immunities Clause of the Fourteenth Amendment, which was supposed to be the centerpiece of the Fourteenth Amendment and the critical constitutional language that guarantees the fundamental rights of all Americans. Instead, the Supreme Court wrote it out of the Constitution in 1873 and it has lain dormant ever since. The report argues for a reconsideration of the Clause and its critical role of protecting fundamental rights and liberties." Hat tip to Steven Schwinn (John Marshall, Chicago), Constitutional Law Prof Blog. [JH]
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In your report, "Gem of the Constitution", on page 14, you write:
". . . [T]he (Slaughterhouse) Court drew a distinction between national and state citizenship, and treated the vast bulk of constitutional and common law rights as rights of state citizenship. Perverting the Corfield definition which had been so influential to the framers of the Amendment, the Court claimed that virtually all privileges and immunities were privileges of state citizenship, and consequently not protected by the Privileges or Immunities Clause – a result it reached by misquoting Article IV’s Privileges and Immunities Clause to suggest a state-citizenship gloss not found in the actual text."
I wish to point out that the Supreme Court decided in the Slaughterhouse Cases that because of the Fourteenth Amendment there were now two seperate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment; and a citizen of the several States, under Article IV, Section 2, Clause 1. (note 1) The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several states a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).
In addition, in the Civil Rights Cases, the Supreme court states the following on the first section of the Fourteenth Amendment:
“The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the States. It declares that:
‘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.’ “ Civil Rights Cases: 109 U.S. 3, 10-11 (1883).
Also, I would like to state that the authors of the Fourteenth Amendment made a mistake in the Fourteenth Amendment which forced the Supreme Court in the Slaughterhouse Cases to decide the way they did. In my work, "Diversity of Citizenship: Who is a Citizen of a State" (Readings 1) at footnote 2 and 3, I write:
"Footnote 2. Unfortunately, for the authors of the Fourteenth Amendment it did not do so. The authors were aware of the Dred Scott case. Senator Johnson was counsel for the defense in the Dred Scott case. The Dred Scott court held that a Negro of slave descent, was not considered a citizen of the several States when the Constitution WAS ADOPTED. And since he was not considered a citizen of the several States he was also not considered a citizen of the United States. The Fourteenth Amendment makes no reference in section 1, clause 1 to 'all persons born or naturalized in the United States' AFTER THE ADOPTION OF THIS CONSTITUTION. [Footnote 3] Because of this oversight by the authors of this amendment, when the Fourteenth Amendment came to the Supreme Court, in the Slaughterhouse Cases, the Court had to construe it in a different manner to avoid conflict with its holding in the Dred Scott case.
Footnote 3. At Article II, Section 5, Clause 1, it states:
'No person except a natural born Citizen, or a Citizen of the United States AT THE TIME OF THE ADOPTION OF THIS CONSTITUTION, shall be eligible to the Office of President.' "
And so, my last point I would like to make is that state citizenship has nothing to do with privileges and immunities of citizens of the several States. This, I show, in my work, "State Citizenship does not relate to Privileges and Immunities of citizens of the several States" by showing that this conclusion is based on a mistake in the Syllabus to the Slaughterhouse Cases. (Readings 2)
(1) “We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section (first section, section clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” Slaughterhouse Cases: 83 U.S. 36, page 74.
And, “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF (emphasis mine) the several States.’ ” Slaughterhouse Cases: 83 U.S. 36, page 75.
(1) Dan Goodman, "Diversity of Citizenship: Who is a Citizen of a State"; January 6, 2009; American Chronicle at http://www.americanchronicle.com/articles/87013.
(2) Dan Goodman, "State Citizenship does not relate to Privileges and Immunities of citizens of the several States"; January 29, 2009; American Chronicle at http://www.americanchronicle.com/articles/89262.
Posted by: Dan Goodman | Feb 16, 2009 1:42:59 AM