Constitutional Law

The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause

by David Gans, the Human and Civil Rights Director for the Constitutional Accountability Center and Doug Kendall, President of the Constitutional Accountability Center. They are co-authors of The Gem of the Constitution.

Today, the Constitutional Accountability Center (CAC) is officially releasing a report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause, the first of a series of “narratives” about the text and history of critical constitutional provisions. The report was pre-released at the American Constitution Society’s recent conference in Philadelphia, co-sponsored by CAC, entitled “Towards a More Perfect Union: The Second Founding and the Reconstruction Amendments.”

As the Second Founding conference highlighted, much of the Constitution’s progressive force comes from the text and history of the Thirteenth, Fourteenth, and Fifteenth Amendments -- the Reconstruction Amendments -- which were ratified to secure for our country the “New Birth of Freedom” Abraham Lincoln had promised at Gettysburg.   These Amendments wrote slavery out of the Constitution, wrote the Declaration’s focus on liberty and equality into the Constitution, and provide the foundation for protection of fundamental rights. Unfortunately, the text and history of these Amendments have long been clouded by Jim Crow historians, who dominated the history books for much of the 20th Century. As a result, when we talk about our Constitution’s framers, we focus almost exclusively on our 18th century framers. All too often, we leave the fundamental changes made to the Constitution after the Civil War out of discussions of the Nation’s most important document.

Our narrative tells the sad history of the Privi­leges or Immunities Clause, which was supposed to be the centerpiece of the Fourteenth Amendment and the critical constitutional language that would guarantee the fundamental rights of all Americans.    In 1866, Schuyler Colfax, the Speaker of the House of Representatives, called Section One of the Fourteenth Amendment “the gem of the Constitution . . . because it is the Declaration of Independence placed immutably and forever in our Constitution.” The Privileges or Immunities Clause is at the core of Section One: it was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the “unalienable rights” to which the Declaration referred. Yet, the Clause was never allowed to fulfill its promise. The Supreme Court interred the Privileges or Immunities Clause in the Slaughterhouse Cases in 1873, and it has been little more than a dead letter ever since. Slaughterhouse is an embarrassment to anyone who cares about the text and history of the Constitution; it wrote out of the Constitution one of the document’s most important protections of human and civil rights. And, it is sorely missed today. Without any clear textual hook in the Constitution for protecting fundamental rights against the actions of state and local governments, debates over the basic human rights all Americans possess have run aground, mired in endless debates about whether the Constitution’s text, in fact, protects substantive liberty. As our report documents, the left/right/center scholarly consensus about the Court’s shabby treatment of the Privileges or Immunities Clause – coupled with recent murmurs on the Court itself – suggest that the time is ripe for a serious push towards a reconsideration of the Clause and the central role it was supposed to play in American constitutional law.

This week, we will be writing a series of posts on Balkinization on the text and history of the Privileges or Immunities Clause and the role it ought to play in protecting the substantive fundamental rights of all Americans, and continuing the conversation we have started on our own blog, Text & History, about the New Birth of the Freedom and the Constitution. We hope you will join us in pushing these issues at this critical time, on the eve of President Obama’s celebration of the “New Birth of Freedom” at his inauguration in January. If there were ever a time to bring the Reconstruction Amendments more fully into our constitutional conversations, it is now. Lincoln’s legacy is on the table; here is the chance to renew the promise of liberty and equality at the core of the Fourteenth Amendment, the “New Birth of Freedom” the Nation fought for.   

Full post as published by ACS Blog on December 09, 2008 (boomark / email).