Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.
Supreme Court briefJul 27, 2021
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No. 19-1392
In the Supreme Court of the United States
__________________
THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, et al.,
Petitioners,
v.
JACKSON WOMEN’S HEALTH ORGANIZATION, et al.,
Respondents.
__________________
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
__________________
BRIEF OF PROFESSOR KURT T. LASH
AS AMICUS CURIAE IN SUPPORT
OF PETITIONERS
__________________
KEVIN C. WALSH
Counsel of Record
UNIVERSITY OF RICHMOND
SCHOOL OF LAW*
203 Richmond Way
Richmond, VA 23173
(804)287-6018
kwalsh@richmond.edu
Counsel for Amicus Curiae
* Institutional affiliation for
identification purposes only
JULY 27, 2021
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv
IDENTITY AND INTEREST OF
AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. The Ninth Amendment guarantees the right of
local self-government in all matters not
expressly prohibited to the states or clearly
delegated to the federal government . . . . . . . . . . 2
A. The drafter of the Ninth Amendment, James
Madison, expressly described the Ninth
Amendment as working in tandem with the
Tenth to prevent the national government
from interfering with matters
constitutionally reserved to the people in the
states . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Between the Founding and Reconstruction,
scholars, lawyers, and judges repeatedly and
consistently interpreted the Ninth
Amendment as working in tandem with the
Tenth to preserve the retained powers and
rights of the people in the states . . . . . . . . . . 5
C. Antebellum Republicans relied on
constitutional federalism in their opposition
to the spread of slavery . . . . . . . . . . . . . . . . . 10
ii
II. The Fourteenth Amendment neither enforces
unenumerated substantive rights against the
states nor alters the federalist meaning of the
Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . 13
A. John Bingham, primary draftsman of Section
One of the Fourteenth Amendment, sought to
apply enumerated constitutional rights
against the states while preserving the
structural principles of constitutional
federalism declared in the Ninth and Tenth
Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Senator Jacob Howard introduced Bingham’s
redrafted Privileges or Immunities Clause as
protecting the first eight amendments and
other enumerated constitutional rights . . . . 19
C. The ratifying public was well informed of
the speeches of John Bingham and Jacob
Howard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. Nothing about the ratified Fourteenth
Amendment affected the original federalist
meaning of the Ninth Amendment . . . . . . . . 21
1. Members of the Reconstruction Congress
distinguished the federalist Ninth and
Tenth Amendments from the personal
rights enumerated in the first eight
amendments of the Bill of Rights . . . . . . 21
2. The Fourteenth Amendment’s Due
Process Clause does not protect
unenumerated substantive rights . . . . . . 24
iii
E. In The Slaughterhouse Cases, this Court
correctly rejected an effort to read the
Fourteenth Amendment as protecting
unenumerated rights. . . . . . . . . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iv
TABLE OF AUTHORITIES
CASES
Anderson v. Baker,
23 Md. 531 (1865) . . . . . . . . . . . . . . . . . . . . . . . . . 9
Barnaby v. State,
21 Ind. 450 (1863) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Barron v. Baltimore,
32 U.S. 243 (1833). . . . . . . . . . . . . . . . . . . . . . . . 14
Commonwealth v. Aves,
35 Mass. 193 (1836) . . . . . . . . . . . . . . . . . . . . . . 11
Corfield v. Coryell,
6 Fed. Cas. 546 (C.C.E.D. Pa. 1823). . . . . . . 19, 27
Cruikshank v. United States,
92 U.S. 542 (1876). . . . . . . . . . . . . . . . . . . . . . . . 31
Glasgow’s Lessee v. Smith,
1 Tenn. (1 Overt.) 144 (1805) . . . . . . . . . . . . . . 6, 7
In re Booth,
3 Wisc. (1854) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Lemmon v. People,
20 N.Y. 562 (1860) . . . . . . . . . . . . . . . . . . . . . . . 11
McCulloch v. Maryland,
17 U.S. 316 (1819). . . . . . . . . . . . . . . . . . 28, 30, 31
McDonald v. Chicago,
561 U.S. 742 (2010). . . . . . . . . . . . . . 17, 24, 27, 31
New York v. United States,
488 U.S. 1041 (1992). . . . . . . . . . . . . . . . . . . . . . 23
v
Philadelphia & Railroad Co. v. Morrison,
19 F. Cas. 487 (C.C.E.D. Pa. 1864) . . . . . . . . . . . 8
Planned Parenthood v. Casey,
505 U.S. 883 (1992). . . . . . . . . . . . . . . . . . . 1, 2, 33
Roe v. Wade,
410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . 1, 2, 33
State v. Antonio,
3 S.C.L. (1 Brev.) 562 (1816) . . . . . . . . . . . . . . . . 7
The Legal Tender Cases,
79 U.S. 457 (1870). . . . . . . . . . . . . . . . . . . . . . . . . 9
The Slaughterhouse Cases,
83 U.S. 36 (1873). . . . . . . . . . . . . . . . 27, 28, 29, 31
CONSTITUTION
U.S. Const. amend. IX . . . . . . . . . . . . . . . . . . . passim
U.S. Const. amend. X . . . . . . . . . . . . . . . . . . . . passim
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . passim
OTHER AUTHORITIES
Akhil Amar, AMERICA’S CONSTITUTION: A
BIOGRAPHY (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 2
Akhil Amar, THE BILL OF RIGHTS: CREATION AND
RECONSTRUCTION (1998). . . . . . . . . . . . . . . . . . . . 5
John A. Bingham, Representative from Ohio, One
Country, ONE CONSTITUTION, AND ONE PEOPLE:
IN SUPPORT OF THE PROPOSED AMENDMENT TO
ENFORCE THE BILL OF RIGHTS (Feb. 28, 1866) . . 20
vi
CONG. GLOBE, 35th Cong., 2d Sess. 983 (1859). . . . 18
CONG. GLOBE, 38th Cong. 1st Sess. 2941
(June 14, 1864) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866) . . 27
CONG. GLOBE, 39th Cong., 1st Sess. 2467
(May 8, 1866). . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
CONG. GLOBE, 41st Cong., 2d Sess. (1870) . . . . . . . 22
Michael Kent Curtis, FREE SPEECH, “THE PEOPLE’S
DARLING PRIVILEGE”: STRUGGLES FOR FREEDOM
OF EXPRESSION IN AMERICAN HISTORY (2000) . . 12
Davison M. Douglas, The Legacy of St. George
Tucker, 47 Wm. & Mary L. Rev. 1111 (2006) . . . 6
Eric Foner, FREE SOIL, FREE LABOR, FREE MEN: THE
IDEOLOGY OF THE REPUBLICAN PARTY BEFORE
THE CIVIL WAR (1995 ed.) . . . . . . . . . . . . . . . 10, 12
James Kent, COMMENTARIES ON AMERICAN LAW
(1827). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Kurt T. Lash, THE FOURTEENTH AMENDMENT AND
THE PRIVILEGES AND IMMUNITIES OF AMERICAN
CITIZENSHIP (Cambridge, 2014) . . . . . . . 11, 17, 31
Kurt T. Lash, THE LOST HISTORY OF THE NINTH
AMENDMENT (2009) . . . . . . . . . . . . . . . . . . . . . . 4, 8
Kurt T. Lash, The RECONSTRUCTION AMENDMENTS:
ESSENTIAL DOCUMENTS (2 vols.) (Kurt T. Lash,
ed.) (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . passim
vii
Letter from Hardin Burnley to James Madison
(Nov. 28, 1789), in 12 Papers of James Madison
........................................ 6
Leonard W. Levy, ORIGINS OF THE BILL OF RIGHTS
(1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
James Madison, Speech on a Proposed Bill of
Rights, in MADISON: WRITINGS (Jack Rakove,
ed.) (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
James Madison, Speech on the Bank of the United
States (February 2, 1791), in MADISON:
WRITINGS (Jack Rakove, ed.) (1999) . . . . . . . . . . 4
Michael McConnell and Nathan Chapman, Due
Process as Separation of Powers, 121 Yale L. J.
1672 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25
New York Herald (February 27, 1866) . . . . . . . . . . 20
New York Herald (March 1, 1866) . . . . . . . . . . . . . 20
New York Times (Feb. 27, 1866) . . . . . . . . . . . . . . . 20
New York Times ( March 1, 1866). . . . . . . . . . . . . . 20
John Page, Address to the freeholders of Gloucester
County (April 24, 1799) (available in Evans,
Early American Imprints, Series 1) . . . . . . . . . . . 6
Philadelphia’s Illustrated New Age (March 1,
1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Philadelphia Inquirer (March 1, 1866) . . . . . . . . . . 20
Joseph Story, COMMENTARIES ON THE CONSTITUTION
(3 volume edition) (Boston, 1833). . . . . . 6, 7, 8, 18
viii
Charles Sumner, Speech of August 26, 1852
(Ticknor, Reed & Fields, 1852). . . . . . . . . . . 11, 12
The FEDERALIST NO. 84 (Hamilton) (Clinton
Rossiter, ed., 1961) . . . . . . . . . . . . . . . . . . . . . . . . 3
Joel Tiffany, Treatise on the Unconstitutionality of
Slavery (1849) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
St. George Tucker, View of the Constitution of the
United States, in St. George Tucker, 1
BLACKSTONE’S COMMENTARIES WITH NOTES OF
REFERENCE (1803) (reprint edition Lawbook
Exchange, 2006) . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Vermont Watchman and State Journal (March 9,
1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1
IDENTITY AND INTEREST OF AMICUS CURIAE1
Kurt T. Lash is a professor at the University of
Richmond School of Law. He teaches and writes about
the original meaning of the Ninth and Fourteenth
Amendments, and he has an interest in advancing an
historically accurate judicial interpretation of both.
SUMMARY OF ARGUMENT
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme
Court ruled that an abortion law passed by the Texas
legislature violated the right to privacy—a right the
Court located in either the Ninth or Fourteenth
Amendments. See id. at 153 (“This right of privacy,
whether it be founded in the Fourteenth Amendment’s
concept of personal liberty and restrictions upon state
action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment’s reservation of
rights to the people, is broad enough to encompass a
woman’s decision whether or not to terminate her
pregnancy.”). In Planned Parenthood v. Casey, 505 U.S.
883 (1992), a plurality of the Court upheld “the central
holding of Roe,” once again citing the Fourteenth
Amendment and the Ninth Amendment. See id. at 848.
In doing so, the Court reasoned that “[n]either the Bill
of Rights nor the specific practices of States at the time
of the adoption of the Fourteenth Amendment marks
1
No counsel for any party has authored this brief in whole or in
part, and no person other than the amicus or counsel have made
any monetary contribution intended to fund the preparation or
submission of this brief. All parties have filed blanket consents to
the filing of amicus curiae briefs in these matters.
2
the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects.” Id.
The Roe majority and the Casey plurality erred in
their reliance on the Ninth and Fourteenth
Amendments. The Ninth Amendment, both at the time
of its adoption and now, preserves the people’s retained
right to local self-government. It cannot properly be
read as a source of authority to deny the rights of local
self-government. The Fourteenth Amendment protects
substantive rights against the states, but only those
previously enumerated, thus leaving all unenumerated
rights under the authority of the people of the several
states as a matter of constitutional right. This includes
the non-enumerated subject of abortion.
ARGUMENT
I. The Ninth Amendment guarantees the right of
local self-government in all matters not
expressly prohibited to the states or clearly
delegated to the federal government.
A. The drafter of the Ninth Amendment,
James Madison, expressly described the
Ninth Amendment as working in tandem
with the Tenth to prevent the national
government from interfering with matters
constitutionally reserved to the people in
the states.
The Ninth Amendment, like the rest of the Bill of
Rights, prevents unjustifiably broad interpretations of
federal power. Akhil Amar, AMERICA’S CONSTITUTION:
A BIOGRAPHY 315-16 (2005). When anti-federalists
raised concerns about the lack of a Bill of Rights in the
3
original proposed Constitution, Federalist supporters
of the original Constitution defended the omission on
the grounds that such an addition was unnecessary in
a constitution based on the principle of limited
enumerated federal power. Leonard W. Levy, ORIGINS
OF THE BILL OF RIGHTS 20 (1999).
According to
Alexander Hamilton, adding a list of restrictions on
federal power would be “dangerous” since it might be
read to imply otherwise unlimited congressional
authority. The FEDERALIST NO. 84, at 513 (Hamilton)
(Clinton Rossiter, ed., 1961). Nevertheless, to assuage
continuing complaints and help secure the ratification
of the Constitution, Federalists ultimately agreed to
support the addition of a Bill of Rights in the First
Congress. Levy, at 34.
On June 8, 1789, James Madison submitted to the
House of Representatives a list of proposed
amendments to the Constitution. In his accompanying
speech, Madison acknowledged Hamilton’s warning
about adding a list of rights, but insisted he had
“guarded against” such a dangerous implied expansion
of federal power by proposing “the last clause of the
fourth resolution.” James Madison, Speech on a
Proposed Bill of Rights, in MADISON: WRITINGS 448-49
(Jack Rakove, ed.) (1999). That clause ultimately
evolved into our current Ninth Amendment: “The
enumeration in the Constitution of certain rights shall
not be construed to deny or disparage other rights
retained by the people.”
Madison explained the meaning of the Ninth
Amendment in a speech he delivered while the Bill of
Rights remained pending before the states. In that
4
speech, Madison expressly linked the Ninth and Tenth
Amendments as jointly protecting the reserved powers
and rights of the people in the states. See James
Madison, Speech on the Bank of the United States
(February 2, 1791), in WRITINGS 480-90. Madison
reminded his colleagues that the people in the state
ratifying conventions had been promised a government
of limited enumerated power. Id. at 489. The provisions
in the proposed Bill of Rights were declaratory
reminders that the Constitution carefully preserved the
retained powers and rights of the people in the states.
Madison “remark[ed] particularly on the 11th and 12th
[proposed amendments2], the former as guarding
against a latitude of interpretation, the latter excluding
every source of power not of exercising the within the
Constitution itself.” Id.
Madison’s description of the Ninth Amendment as
“guarding against a latitude of interpretation” is
consistent with his originally stated purpose for “the
last clause of the fourth resolution.” The Ninth declares
that just because the Bill of Rights list some
constraints on federal power, this may not be construed
to imply that federal power is otherwise unconstrained
(Hamilton’s concern).
The Tenth Amendment further declares that all
powers not properly construed as falling within those
enumerated powers are reserved to the people in the
2
Madison’s reference to the Ninth and Tenth Amendments as the
“11th and 12th” reflected an early practice of referring to the
amendments according to their position on the original list of
twelve proposed amendments. See Kurt T. Lash, THE LOST
HISTORY OF THE NINTH AMENDMENT 197 (2009).
5
states. Significantly, both the Ninth and Tenth
Amendments use the language of popular
sovereignty—it is the people’s right to create a national
government of limited power and reserve all nondelegated powers and rights to the people in the states.
Amar, THE BILL OF RIGHTS : CREATION AND
RECONSTRUCTION 123 (“the Ninth and Tenth
Amendments elegantly integrate popular sovereignty
with federalism”) (1998).
B. Between the Founding and Reconstruction,
scholars, lawyers, and judges repeatedly
and consistently interpreted the Ninth
Amendment as working in tandem with the
Tenth to preserve the retained powers and
rights of the people in the states.
In the years between the Founding and
Reconstruction, scholars and judges repeatedly
described the Ninth Amendment as a federalism
provision working in tandem with the Tenth to
preserve the people’s retained powers and rights. In the
first treatise on the American Constitution, St. George
Tucker echoed Madison’s understanding that the Ninth
Amendment worked in tandem with the Tenth to
preserve the rights of local self-government. According
to Tucker, the Ninth and Tenth Amendments jointly
established the principle that “the powers delegated to
the federal government, [were], in all cases, to receive
the most strict construction that the instrument will
bear, where the rights of a state or of the people, either
collectively, or individually, may be drawn in question.”
See St. George Tucker, View of the Constitution of the
United States, in St. George Tucker, 1 BLACKSTONE’S
6
COMMENTARIES WITH NOTES OF REFERENCE, Appendix
at 154 (1803) (reprint edition Lawbook Exchange,
2006). Tucker’s “View of the Constitution” was the most
influential constitutional treatise prior to the
publication of Joseph Story’s COMMENTARIES ON THE
CONSTITUTION. See Davison M. Douglas, The Legacy of
St. George Tucker, 47 Wm. & Mary L. Rev. 1111, 1114
(2006). As we shall see, Story himself included citations
to Tucker’s discussion of the Ninth and Tenth
Amendments in his Commentaries.
Other members of the Founding generation shared
Madison’s and Tucker’s view of the Ninth and Tenth
Amendments. John Page, a member of the House of
Representatives when Madison proposed the Bill of
Rights, argued that the Alien and Sedition Acts were
“an encroachment on the reserved rights of the
individual states (see, the 11th and 12th articles of the
amendments).”3 Hardin Burnley, a member of the
Virginia House of Delegates, supported ratification of
the Ninth Amendment on the grounds that the
provision would “protect[] the rights of the people & of
the States.”4 In his opinion in Glasgow’s Lessee v.
Smith,5 John Overton, a member of the second North
Carolina Ratifying Convention, cited Tucker’s
3
John Page, Address to the freeholders of Gloucester County 14
(April 24, 1799) (available in Evans, Early American Imprints,
Series 1). Page was a member of Congress from 1789-1797, and
Governor of Virginia from 1802 to 1805. Id. at 13, 14.
4
Letter from Hardin Burnley to James Madison (Nov. 28, 1789),
in 12 Papers of James Madison 456.
5
1 Tenn. (1 Overt.) 144 (1805).
7
discussion of the Ninth and Tenth Amendments and
explained that these two amendments supported a rule
of strict construction whenever “the sovereign rights of
the states” were threatened.6 In his opinion in State v.
Antonio,7 South Carolina Supreme Court Judge and
ratifier of the federal Constitution John Grimke read
the Ninth and Tenth Amendments as jointly
establishing the principle that if “the individual States
were in possession of [a] power before the ratification
of the Constitution; and if there is no express
declaration in that instrument, which deprives them of
it, they must still retain it.”8
This was not a regional understanding limited to
southerners. The most influential antebellum
constitutional commentator, Joseph Story, also shared
St. George Tucker’s federalist understanding of the
Ninth and Tenth Amendments. In his 1833
“Commentaries on the Constitution,” Story’s discussion
of the Ninth and Tenth Amendments refers readers to
both Hamilton’s warning about the addition of a Bill of
Rights in Federalist 84, and to St. George Tucker’s
discussion of the Ninth and Tenth Amendments. See
Joseph Story, III COMMENTARIES ON THE CONSTITUTION
752, notes 2 & 3 (3 volume edition) (Boston, 1833). The
“Commentaries” index headings, “Reserved Powers and
Rights of the People” and “Rights Reserved to the
States and the People,” both refer readers to Story’s
6
Id. at 166-67, note a1.
7
3 S.C.L. (1 Brev.) 562 (1816).
8
Id. at 568.
8
discussion of the Ninth and Tenth Amendments. Id. at
773, 774. Finally, if only to underscore Story’s
federalist understanding of the Ninth Amendment, the
Commentaries’ headnote above Story’s discussion of
the Ninth Amendment reads “Non-Enumerated
Powers” while the headnote for the Tenth Amendment
reads “Powers not Delegated.” Id. at 751, 753. Story, in
other words, understood both the Ninth and Tenth
Amendment as having to do with limiting the powers
of the national government to enumerated powers and
reserving “non-enumerated” powers to the people in the
States.
Judges, politicians, and lawyers throughout the
antebellum period echoed Tucker’s and Story’s view
that the Ninth Amendment worked in tandem with the
Tenth as one of the twin guardians of federalism. See
Lash, The Lost History of the Ninth Amendment at
160-225. This understanding of the Ninth Amendment
did not change with the advent of Civil War. In 1863,
the Indiana Supreme Court linked the Ninth and
Tenth Amendments as jointly calling for a narrow
construction of federal power over navigable waters
within the state. Barnaby v. State, 21 Ind. 450, 452
(1863). In the 1864 case Philadelphia & Railroad Co.
v. Morrison, 19 F. Cas. 487, 489-91 (C.C.E.D. Pa. 1864),
federal judge John Cadwalader declared that the
federalist understanding of the Ninth and Tenth
Amendments was so well known as to constitute a
“truism:”:
[T]he ninth and tenth amendments of the
constitution . . . whether their words are to be
understood as restrictive or declaratory,
9
preclude everything like attribution of implied
residuary powers of sovereignty, or ulterior
inherent rights of nationality, to the government
of the United States. . . . That the amendments
were thus intended for security against
usurpations of the national government only,
and not against encroachments of the state
governments, may be considered a truism. But
recurrence to historical facts which explain
constitutional truisms, cannot be too frequent, if
they are in danger of being overlooked in
calamitous times, or of being crowded out of
memory by any succession of appalling events.9
In The Legal Tender Cases, 79 U.S. 457, 634 (1870),
Supreme Court Justice Stephen J. Field insisted that
the majority’s approach violated the rule of
construction demanded by the state ratification
conventions and declared by the Ninth Amendment.
Recounting the history behind the adoption of the Bill
of Rights, Field repeated Story’s “Hamiltonian”
argument that the initial rejection of a Bill of Rights
“was upon the ground that such a bill would contain
various exceptions to powers not granted, and on this
very account would afford a pretext for asserting more
than was granted.” Id. at 865. Field then cited, among
other sources, “Story on the Constitution, Sections
1861, 1862, and note.” This citation is to Story’s
description of the Ninth Amendment in his
Commentaries and includes Story’s citation to Tucker’s
9
See also Anderson v. Baker, 23 Md. 531, 624 (1865) (“prohibitions
on the states, are not to be enlarged by construction” according to
the “spirit and object of the 9th and 10th Amendments”).
10
federalist analysis of the Ninth Amendment in his
“View of the Constitution.”
In sum, from 1791 to 1870, scholars and judges
commonly interpreted the Ninth Amendment as a
federalist provision working in tandem with the Tenth
Amendment to protect the people’s reserved powers
and rights. This was the consensus understanding of
the Ninth Amendment at the time of the framing and
ratification of the Fourteenth Amendment.
C. Antebellum Republicans relied on
constitutional federalism in their
opposition to the spread of slavery.
Although federalism is often portrayed as a
constitutional principle embraced only by the slave
holding south, this is not the case. Prior to the Civil
War, northern abolitionists expressly relied on
principles of constitutional federalism to resist the
expansion of slavery and preserve the retained rights
of the people in the northern states to oppose the
“peculiar institution.” Eric Foner, FREE SOIL, FREE
LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN
PARTY BEFORE THE CIVIL WAR 210 (1995 ed.).
Despite furious denunciations by southern
slaveholding states, northern free states passed
personal liberty acts protecting their Black citizens
from being kidnapped into slavery. See, e.g.,
Pennsylvania Personal Liberty Act (1854), in Kurt T.
Lash, 1 The RECONSTRUCTION AMENDMENTS:
ESSENTIAL DOCUMENTS 234 (2 vols.) (Kurt T. Lash, ed.)
(2021). The principles of constitutional federalism
supported the efforts of northern states to refuse to
11
assist the enforcement of the Fugitive Slave Act. See In
re Booth, 3 Wisc. (1854) (purporting to overrule the
Supreme Court’s decision in Prigg v. Pennsylvania and
invalidate the federal Fugitive Slave Clause), in 1
Reconstruction Amendments at 284. These same
federalist principles supported the decisions by courts
in northern free states to emancipate any enslaved
person brought voluntarily into the state. See, e.g.,
Commonwealth v. Aves, 35 Mass. 193 (1836); Lemmon
v. People, 20 N.Y. 562 (1860).
Antebellum constitutional abolitionists embraced
the principles of federalism as an essential tool in their
struggle against slavery. According to the abolitionist
Wendell Phillips, “I love state rights; that doctrine is
the corner stone of individual liberty.” Quoted in Lash,
THE FOURTEENTH AMENDMENT AND THE PRIVILEGES
AND IMMUNITIES OF AMERICAN CITIZENSHIP 80
(Cambridge, 2014). Even Radical Republicans like
Charles Sumner accepted the importance of federalism
in the struggle against slavery and the Fugitive Slave
Act. In his 1852 speech, “Freedom National, Slavery
Sectional,” Sumner quoted the Tenth Amendment and
then declared:
Stronger words could not be employed to limit
the power under the Constitution, and to protect
the people from all assumptions of the National
Government, particularly in derogation of
Freedom. Its guardian character commended it
to the sagacious mind of Jefferson, who said: “I
consider the foundation corner-stone of the
Constitution of the United States to be laid upon
the tenth article of the amendment.” Charles
12
Sumner, Speech of August 26, 1852, at 29
(published in pamphlet form) (Ticknor, Reed &
Fields, 1852).
In 1860, Republicans declared their commitment to
constitutional federalism in their national Party
Platform, which stated “[t]hat the maintenance
inviolate of the rights of the states, and especially the
right of each state to order and control its own domestic
institutions according to its own judgment exclusively,
is essential to that balance of powers on which the
perfection and endurance of our political fabric
depends.” 1860 Republican Party Platform, in, 1
Reconstruction Amendments, at 320.
In sum, at the threshold of the Civil War, moderate
Republicans (who, according to Foner, “held the
balance of power within the Republican Party,” Foner,
FREE SOIL, at 205) had no intention of abandoning
constitutional federalism or reinterpreting the Ninth
and Tenth Amendments. These Republicans believed
that the slave holding southern states had fallen away
from the original federalist principles of the
Constitution and had continuously violated the
personal rights enumerated in the Bill of Rights. See
Michael Kent Curtis, FREE SPEECH, “THE PEOPLE’S
DARLING PRIVILEGE”: STRUGGLES FOR FREEDOM OF
EXPRESSION IN AMERICAN HISTORY 266-70 (2000). The
Republicans who framed and advanced the Fourteenth
Amendment sought only to enforce those original rights
while maintaining the basic principles of constitutional
federalism announced in provisions like the Ninth and
Tenth Amendments.
13
II. The Fourteenth Amendment neither enforces
unenumerated substantive rights against the
states nor alters the federalist meaning of the
Ninth Amendment.
A. John Bingham, primary draftsman of
Section One of the Fourteenth Amendment,
sought to apply enumerated constitutional
rights against the states while preserving
the structural principles of constitutional
federalism declared in the Ninth and Tenth
Amendments.
Adhering to the basic principles of constitutional
federalism was particularly important to the
Republican who drafted Section One of the Fourteenth
Amendment, Ohio Representative John Bingham. In
his speech introducing the initial draft of what became
Section One of the Fourteenth Amendment, Bingham
explained that such an amendment was needed
precisely because of the federalist structure of the
Constitution. Rejecting the more Radical Republican
views of unlimited federal power, Bingham insisted
that the original Constitution left the regulation of civil
rights to the control of the people in the states. In
support, Bingham quoted Madison’s explanation of
constitutional federalism in The Federalist No. 45:
“The powers reserved to the several States will extend
to all the objects which, in the ordinary course of
affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement, and
prosperity of the State.” Bingham, Feb. 28, 1866, in 2
Reconstruction Amendments, 116.
14
It was because of his continued belief in Madisonian
federalism that Bingham refused to support the
passage of the 1866 Civil Rights Act prior to the
adoption of the Fourteenth Amendment. In his 1866
speech opposing that Act, Bingham explained that “in
view of the text of the Constitution of my country, in
view of all its past interpretations, in view of the
manifest and declared intent of the men who framed it,
the enforcement of the bill of rights, touching the life,
liberty, and property of every citizen of the Republic
within every organized State of the Union, is of the
reserved powers of the States.” Declared Bingham,
“[w]ho can doubt this conclusion who considers the
words of the Constitution: ‘the powers not delegated to
the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States
respectively, or to the people?’” Bingham, March 9,
1866, in 2 Reconstruction Amendments at 136.
Bingham agreed with his more Radical colleagues
that the personal rights listed in the Bill of Rights
should bind the states. However, according to
antebellum Supreme Court rulings like Barron v.
Baltimore,10 accomplishing such a result required the
adoption of a constitutional amendment. Accordingly,
in the early months of 1866, Bingham directed his
efforts towards drafting and passing an amendment to
the Constitution that would supply what Bingham
described as “the want of the Republic, . . . an express
grant of power in the Constitution to enable the whole
people of every State, by congressional enactment, to
enforce obedience to these requirements of the
10
32 U.S. 243 (1833).
15
Constitution.” Bingham, Feb. 26, 1866, in 2
Reconstruction Amendments at 100 (emphasis added).
Two days later, Bingham explained:
The proposition pending before the House is
simply a proposition to arm the Congress of the
United States, by the consent of the people of the
United States, with the power to enforce the bill
of rights as it stands in the Constitution to-day.
It hath that extent—no more. Bingham,
February 28, 1866, in 2 Reconstruction
Amendments, 109.
Bingham would never have proposed an amendment
federalizing the unenumerated subjects of local
municipal law. Any such attempt would have offended
Bingham’s belief in the values of constitutional
federalism. Bingham insisted that his colleagues in the
Thirty-Ninth Congress remain true to “our dual system
of Government by which our own American nationality
and liberty have been established and maintained. I
have always believed that the protection in time of
peace within the States of all the rights of person and
citizen was of the powers reserved to the States. And so
I still believe.” Bingham, March 9, 1866, in 2
Reconstruction Amendments at 140. The problem to be
remedied was the southern states’ refusal to respect
the rights enumerated in the original Constitution:
The House knows, sir, the country knows, the
civilized world knows, that the legislative,
executive, and judicial officers of eleven States
within this Union within the last five years, in
utter disregard of these injunctions of your
Constitution, in utter disregard of that official
16
oath which the Constitution required they
should severally take and faithfully keep when
they entered upon the discharge of their
respective duties, have violated in every sense of
the word these provisions of the Constitution of
the United States, the enforcement of which are
absolutely essential to American nationality.
Bingham, February 26, 1866, in 2
Reconstruction Amendments at 100.
Consistent with his continued belief in the reserved
rights of the states over all unenumerated subjects,
Bingham proposed a constitutional amendment that
would enforce the first eight amendments in the Bill of
Rights against the states but leave the substance of all
unenumerated rights under the control of the people in
the States.
None of Bingham’s Republican colleagues in the
Thirty-Ninth Congress objected to the idea of enforcing
the Bill of Rights against the states. Some members,
however, worried that the wording in Bingham’s initial
draft might empower Congress to define what counted
as federally enforceable “privileges and immunities.”
Republican Giles Hotchkiss suggested he would
support an amendment that clearly announced “a
constitutional right that cannot be wrested from any
class of citizens, or from the citizens of any State by
mere legislation. But this amendment proposes to leave
it to the caprice of Congress.” Hotchkiss, February 28,
1866, in 2 Reconstruction Amendments at 117. In the
face of similar Republican criticism, Bingham agreed to
withdraw his proposal. Bingham then redrafted his
proposal which the Joint Committee on Reconstruction
17
ultimately adopted as Section One of the Proposed
Fourteenth Amendment. See Proceedings of the Joint
Committee on Reconstruction, in 2 Reconstruction
Amendments at 154. See also Lash, The Fourteenth
Amendment at 108.
That May, the Joint Committee on Reconstruction
submitted to Congress a five-sectioned amendment
which included Bingham’s redrafted language for
Section One:
“No state shall make or enforce any law
abridging 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, or deny any person
the equal protection of the laws.” See, 2
Reconstruction Amendments, at 155.
This final phrasing uses language with deep roots in
antebellum legal debates as a reference to the
enumerated rights of American citizens. See Lash, The
Fourteenth Amendment, at 47-66; see also McDonald
v. Chicago, 561 U.S. 742, 813-22 (2010) (Thomas J.,
concurring). As Bingham explained three years after
the ratification of the Fourteenth Amendment:
Mr. Speaker, that the scope and meaning of the
limitations imposed by the first section,
fourteenth amendment of the Constitution may
be more fully understood, permit me to say that
the privileges and immunities of citizens of the
United States, as contradistinguished from
citizens of a State, are chiefly defined in the first
eight amendments to the Constitution of the
18
United States. Those eight amendments are as
follows: Article I. Congress shall make no law
respecting an establishment of religion, . . .
[Bingham then quotes the language of the first
eight amendments] See Bingham, March 31,
1871, in 2 Reconstruction Amendments, at 625.
Throughout the debates of the Reconstruction
Congress, Bingham repeatedly described his efforts in
1866 as directed at passing an amendment that would
enforce the enumerated rights of the first eight
amendments of the Bill of Rights against the states.
Not once did Bingham refer to the Ninth Amendment
as one of the enumerated personal rights covered by
Section One. This is consistent with the antebellum
and Reconstruction era understanding of the Ninth and
Tenth Amendments as structural guarantees of
constitutional federalism. Lawyers like Bingham would
know this common understanding of the Ninth
Amendment from their study of the third volume of
Joseph Story’s Commentaries on the Constitution—a
volume Bingham himself owned and used in his
speeches before Congress. See CONG. GLOBE, 35th
Cong., 2d Sess. 983 (1859) (speech of Rep. Bingham)
(“It has always been well understood amongst jurists in
this country, that the citizens of each State constitute
the body politic of each community, called the people of
the State; and that the citizens of each State in the
Union are ipso facto citizens of the United States.
(Story on the Constitution, vol. 3, p. 565.)”).
19
B. Senator Jacob Howard introduced
Bingham’s redrafted Privileges or
Immunities Clause as protecting the first
eight amendments and other enumerated
constitutional rights.
John Bingham’s fellow member on Joint Committee
on Reconstruction, Michigan Senator Jacob Howard,
also described Bingham’s Privileges or Immunities
Clause in terms that involve only constitutionally
enumerated rights. See Speech of Jacob Howard, May
23, 1866, in 2 Reconstruction Amendments, at 187-88.
In his speech introducing the Fourteenth Amendment
to the Senate, Howard explained that the privileges or
immunities of citizens of the United States included the
right of traveling citizens to receive equal treatment
enumerated in Article IV’s Comity Clause (and
described in antebellum cases like Corfield v. Coryell,
6 Fed. Cas. 546 (C.C.E.D. Pa. 1823)) as well as those
rights “secured by the first eight amendments of the
Constitution.” Id. at 188. Every single privilege or
immunity listed by Howard in his extended speech
involved a guarantee enumerated in the original
Constitution. Howard’s speech is important: It was so
widely read and republished that during the
ratification debates speakers often referred to the
proposed Fourteenth Amendment as “the Howard
Amendment.” See, e.g., North Carolina House of
Representatives, July 2, 1868 (“Mr. Seymour
introduced the following resolution, ratifying the
fourteenth article of the Constitution of the United
States, the article known as the Howard
Amendment.”), in 2 Reconstruction Amendments at
20
418. See also, 2 Reconstruction Amendments at 185 n.*
(listing newspaper coverage of Howard’s speech).
C. The ratifying public was well informed of
the speeches of John Bingham and Jacob
Howard.
Unlike the secret proceedings of Philadelphia
Constitutional Convention, the proceedings of the
Thirty-Ninth Congress were public. Newspapers
reported on the speeches and debates, often with
verbatim transcripts, on a daily basis. See Introduction
to the Collection, 1 Reconstruction Amendments, at ix.
Bingham’s speeches of February 1866 were published
in the New York Times,11 The New York Herald,12 The
Vermont Watchman and State Journal,13 The
Philadelphia Inquirer,14 and Philadelphia’s Illustrated
New Age.15 Bingham himself published his February
28, 1866 speech separately and distributed it as a
campaign document. See John A. Bingham,
Representative from Ohio, One Country, ONE
CONSTITUTION, AND ONE PEOPLE: IN SUPPORT OF THE
PROPOSED AMENDMENT TO ENFORCE THE BILL OF
RIGHTS (Feb. 28, 1866) (pamphlet printed by the
Congressional Globe). Jacob Howard’s speech
11
Feb. 27, 1866, p. 8; March 1, 1866, p. 5.
12
February 27, 1866, p. 1; March 1, 1866, p. 1.
13
March 9, 1866, p.1.
14
March 1, 1866, p. 1.
15
March 1, 1866, p.1.
21
introducing Bingham’s final draft of the Privileges or
Immunities Clause was also published in multiple
newspapers, including the Philadelphia Inquirer, the
National Intelligencer, the Hillsdale Standard and the
New York Herald. See 2 Reconstruction Amendments
at 185 n.*
In this way, the speeches and declarations of the
members of the Thirty-Ninth Congress, including John
Bingham’s insistence that he sought an amendment
that would do nothing more than enforce enumerated
constitutional rights against the states, became a welldistributed part of the public record as the country
considered whether to ratify the Fourteenth
Amendment.
D. Nothing about the ratified Fourteenth
Amendment affected the original federalist
meaning of the Ninth Amendment.
1. Members of the Reconstruction
Congress distinguished the federalist
Ninth and Tenth Amendments from the
personal rights enumerated in the first
eight amendments of the Bill of Rights.
Members of the Reconstruction Congress
distinguished the federalist Ninth and Tenth
Amendments from the “personal rights” of the first
eight amendments. In the Thirty-eighth Congress, for
example, New York Democrat Fernando Wood declared
that control over “domestic and social relations of the
people of the respective States, was not and never was
intended to be delegated to the United States, and
cannot now be delegated except by the consent of all
22
the States. Articles nine and ten of the Amendments to
the Constitution are conclusive on this point.”16 In the
Thirty-Ninth Congress, Pennsylvania Democrat
Benjamin M. Boyer quoted the Ninth and Tenth
Amendments as evidence that Congress had no right to
“disfranchise the majority of the citizens of any State
on account of their past participation in the rebellion.”17
One finds similar Democrat references to the Ninth
and Tenth Amendments throughout the Reconstruction
debates. See, e.g., CONG. GLOBE, 41st Cong., 2d Sess.
app. at 354 (1870) (remarks of Sen. William T.
Hamilton) (quoting the Ninth and Tenth Amendments
in support of a narrow reading of federal power).
Rather than disagreeing with the Democrats’
federalist interpretation of the Ninth and Tenth
Amendments, Republican advocates for constitutional
reform focused on the need to protect the personal
rights listed in the first eight amendments. As noted
above, both John Bingham and Jacob Howard omitted
the Ninth and Tenth Amendments from their list of
constitutional rights protected by the Privileges or
Immunities Clause, and instead expressly named the
rights enumerated in the first eight amendments. As
Bingham explained, “these eight articles I have shown
never were limitations upon the power of the States,
until made so by the fourteenth amendment.”
Bingham, in 2 Reconstruction Amendments at 626.
16
CONG. GLOBE, 38th Cong. 1st Sess. 2941 (June 14, 1864).
17
CONG. GLOBE, 39th Cong., 1st Sess. 2467 (May 8, 1866).
23
Bingham and Howard’s omission of the Ninth
Amendment from their list of protected enumerated
rights makes perfect sense given the common
Reconstruction-era understanding that the last two
amendments in the Bill of Rights were distinguishable
from the personal rights protected in the first eight. In
the same speech quoted above, Bingham explained
“[o]ne word further as to the gentleman’s statement
that the provision of the eighth amendment has
relation to personal rights. Admit it, sir; but the same
is true of many others of the first ten articles of
amendment.” Bingham, in 2 Reconstruction
Amendments at 626. B i n g h a m , i n o t h e r w o r d s ,
understood that many, but not all of the ten
amendments involved personal rights. Similarly, Jacob
Howard described the Privileges or Immunities Clause
as protecting “the personal rights guaranteed and
secured by the first eight amendments to the
constitution.” Howard, May 23, 1866, in 2
Reconstruction Amendments, at 187-88.
Distinguishing the Ninth and Tenth Amendments
did not mean these provisions were not part of the Bill
of Rights.18 It simply reflected a widely recognized
distinction between the personal (individual) rights of
the first eight amendments and the federalism-based
rights of the last two. Put another way, there is no
historical evidence that between the time of the
18
Nor does it mean that states are not bound to respect the
federalism principles of the Ninth and Tenth Amendments. See,
e.g., New York v. United States, 488 U.S. 1041 (1992) (rejecting the
idea that states can waive the Constitution’s federalist separation
of powers represented by the Tenth Amendment).
24
Founding and Reconstruction a new consensus
understanding of the Ninth Amendment had emerged
which viewed the provision as a font of unenumerated
personal rights that could be applied against the states.
In fact, only a few days prior to Howard’s speech
naming the first eight amendments as enumerated
privileges or immunities that would now be enforceable
against the states, Democrats complained that the
proposed amendment amounted to an abridgment of
the rights of states protected by the Ninth and Tenth
Amendments. See CONG. GLOBE, 39th Cong., 1st Sess.
2467 (1866) (statement of Rep. Boyer).
2. The Fourteenth Amendment’s Due
Process Clause does not protect
unenumerated substantive rights.
The Supreme Court has never defended Roe’s
reliance on substantive due process on the basis of an
historical investigation of the original understanding of
the Fourteenth Amendment’s Due Process Clause.
McDonald v. Chicago, 561 U.S. 742, 811, (2010)
(Thomas, J., concurring in part and concurring in
judgment) (“the Court has determined that the Due
Process Clause applies rights against the States that
are not mentioned in the Constitution at all, even
without seriously arguing that the Clause was
originally understood to protect such rights. See, e.g.,
Lochner v. New York; Roe v. Wade.”) (cleaned up).
Nor could it. At the time of the Fourteenth
Amendment, the term “due process of law” was
“universally understood to guarantee individual rights
of legal process that only courts could provide.” Michael
McConnell and Nathan Chapman, Due Process as
25
Separation of Powers, 121 Yale L. J. 1672, 1727 (2012).
To the degree that the framers of the Fourteenth
Amendment viewed the Due Process Clause as
providing any kind of substantive protection, it would
have done so only as a kind of separation of powers
requirement preventing legislatures from acting as
courts of law. Id.
Antebellum lawyers were taught to view the rights
of due process as procedural protections against the
unjust deprivation of life, liberty or property. See
James Kent, COMMENTARIES ON AMERICAN LAW (1827),
in 1 Reconstruction Amendments at 97 (“The words, by
the law of the land, as used in Magna Charta, in
reference to this subject, are understood to mean due
process of law, that is, by indictment or presentment of
good and lawful men; and this, says Lord Coke, is the
true sense and exposition of those words.”). To
Republicans, such procedural rights were the inherent
right of all persons, regardless of citizenship. In 1859,
for example, John Bingham “invit[ed] attention to the
significant fact that natural or inherent rights, which
belong to all men irrespective of all conventional
regulations, are by this constitution guarantied by the
broad and comprehensive word ‘person,’ as
contradistinguished from the limited term citizen— as
in the fifth article of amendments, guarding those
sacred rights which are as universal and indestructible
as the human race, that ‘no person shall be deprived of
life, liberty, or property but by due process of law.’”
Bingham, 1 Reconstruction Amendments, at 153-54.
This made slavery the ultimate denial of Due Process
as it deprived persons of life, liberty and property
without any procedural protections whatsoever. See,
26
e.g., Joel Tiffany, Treatise on the Unconstitutionality of
Slavery (1849), in 1 Reconstruction Amendments, at
252.
In the Reconstruction Congress, even the most
radical Republicans described the rights of due process
in procedural terms, citing well-known treatises and
case law. In the debates over the Thirteenth
Amendment, for example, Massachusetts Senator
Charles Sumner declared:
[The Fifth Amendment’s Due Process Clause]
was a part of the amendments to the
Constitution proposed by the First Congress,
under the popular demand for a Bill of Rights.
Brief as it is, it is in itself alone a whole Bill of
Rights. Liberty can be lost only by “due process
of law,” words borrowed from the old libertyloving Common law, illustrated by our master in
law, Lord Coke, but best explained by the late
Mr. Justice Bronson, of New York, in a judicial
opinion where he says: “The meaning of the
section then seems to be, that no member of the
State shall be disenfranchised or deprived of any
of his rights or privileges unless the matter shall
be adjudged against him upon trial had
according to the course of common law.”
Sumner, April 8 1864, in 1 Reconstruction
Amendments at 435.
During the Fourteenth Amendment debates, when
asked about the meaning of due process, John Bingham
declared that “the courts have settled [the meaning of
due process of law] long ago, and the gentleman can go
27
and read their decisions.” CONG. GLOBE, 39th Cong.,
1st Sess. 1089 (1866).
In sum, nothing in the text or history of the
Fourteenth Amendment’s Due Process Clause supports
Roe’s use of the “legal fiction” of substantive due
process and the judicial invalidation of duly enacted
state laws regulating abortion. See, McDonald v.
Chicago, 561 U.S. 742, 811 (2010) (Thomas, J.,
concurring in part and concurring in judgment) (This
Court created the right to abortion based on an
amorphous, unwritten right to privacy, which it
grounded in the “legal fiction” of substantive due
process.”). The Due Process Clause requires states to
provide all persons critically important procedural
rights, but nothing more.
E. In The Slaughterhouse Cases, this Court
correctly rejected an effort to read the
Fourteenth Amendment as protecting
unenumerated rights.
In The Slaughterhouse Cases, 83 U.S. 36 (1873), the
Supreme Court rejected a claim by Louisiana butchers
that a state-enacted monopoly violated, among other
things, the Privileges or Immunities Clause of the
Fourteenth Amendment. In his opinion for the court,
Justice Samuel Miller acknowledged that the right to
pursue a trade was one of the many subjects covered by
Article IV’s Comity Clause which, if granted by a state
to its own citizens, must be equally extended to visiting
out-of-state citizens. Id. at 75-76 (citing Corfield v.
Coryell). The privileges or immunities of citizens of the
United States protected by Section One of the
Fourteenth Amendment, however, were altogether
28
different. Id. at 74. The rights of national citizenship
involved those rights secured in one manner or another
by the actual provisions of the federal Constitution. Id.
at 79. (those “which owe their existence to the Federal
government, its National character, its Constitution, or
its laws.”). See also id. at 77 (rights which “depend[] on
the Federal government for their existence or
protection”).
According to Justice Miller, these privileges include
subjects covered by either enumerated congressional
authority or enumerated constitutional rights. In
terms of the former, Miller named the right “to
transact business with the federal government,” “free
access to [the federal] government’s seaports through
which all operations of foreign commerce are
conducted,” access to the federal “courts of justice in
the several States,” and “[t]he right to use the
navigable waters of the United States, however they
may penetrate the territory of the several States.” Id.
at 79 (emphasis added). All of these powers fall within
the enumerated authority of Congress, whether by way
of the Commerce Clause or some other provision, with
which states may not interfere. See McCulloch v.
Maryland, 17 U.S. 316 (1819). In terms of enumerated
rights, Miller named “[t]he right to peaceably assemble
and petition for redress of grievances, the privilege of
the writ of habeas corpus, are rights of the citizen
guaranteed by the Federal Constitution.” Id. at 79.
Since the right to pursue a local trade was neither an
enumerated federal responsibility or enumerated
federal right, the subject remained under the
regulatory control of the people in the several states.
29
In support of his reading of the Fourteenth
Amendment, Justice Miller relied on the basic
principles of constitutional federalism. According to
Miller, interpreting the Privileges or Immunities
Clause as somehow nationalizing the unenumerated
subjects of municipal regulation, especially when
combined with the congressional enforcement powers
granted by Section Five of the Fourteenth Amendment,
would obliterate the federalist structure of the
Constitution. Miller was unwilling to accept an
interpretation that “radically changes the whole theory
of the relations of the State and Federal governments
to each other and of both these governments to the
people . . . in the absence of language which expresses
such a purpose too clearly to admit of doubt.”
Slaughterhouse, 83 U.S. at 78.
Justice Miller’s opinion closely tracks John
Bingham’s own interpretation of the Privileges or
Immunities Clause, Jacob Howard’s description of the
Clause and what we know about the generation of
Americans who adopted the Fourteenth Amendment.
Only two years prior to Miller’s opinion, Bingham
publicly distinguished the state-enacted “privileges and
immunities” of Article IV from the constitutional
“privileges or immunities” protected against state
abridgment by the Privileges or Immunities Clause. In
his 1871 Speech on the Enforcement Act, in words that
anticipate Miller’s later opinion in Slaughterhouse,
Bingham explained:
Is it not clear that other and different privileges
and immunities than those to which a citizen of
a State was entitled are secured by the provision
30
of the fourteenth article, that no state shall
abridge the privileges and immunities of citizens
of the United States, which are defined in the
eight articles of amendment, and which were not
limitations on the power of the States before the
fourteenth amendment made them limitations?
Bingham, March 31, 1871, in 2 Reconstruction
Amendments at 626.
Justice Miller also was correct to insist that the
Fourteenth Amendment be interpreted in a manner
consistent with the traditional understanding of
constitutional federalism. Bingham himself had no
intention to obliterate constitutional federalism and he
insisted that his proposal imposed no rights upon
states which they were not already constitutionally
oath-bound to protect. Like other moderate
Republicans in the Reconstruction Congress, Bingham
valued constitutional federalism, describing it as “our
dual system of Government by which our own
American nationality and liberty have been established
and maintained. I have always believed that the
protection in time of peace within the States of all the
rights of person and citizen was of the powers reserved
to the States. And so I still believe.” Bingham, March
9, 1866, in 2 Reconstruction Amendments at 140.
Finally, Miller was right to limit the privileges or
immunities of citizens of the United States to those
rights actually enumerated in one form or another in
the federal Constitution. It had long been settled law
that no state was permitted to make or enforce any law
that conflicted or interfered with a proper exercise of
enumerated federal power. See McCulloch v. Maryland,
31
17 U.S. 316 (1819). The problem in the 1860s was the
lack of federal power to enforce enumerated federal
rights. As Bingham explained early in the debates of
the Thirty-Ninth Congress, “it has been the want of the
Republic that there was not an express grant of power
in the Constitution to enable the whole people of every
State, by congressional enactment, to enforce obedience
to these requirements of the Constitution.” Bingham,
February 26, 1866, in 2 Reconstruction Amendments at
100. Although Miller does not expressly declare that
the Privileges or Immunities Clause applied the first
eight amendments against the states, Miller does name
enumerated First Amendment rights as protected
“privileges or immunities.” Nothing in his opinion
closes the door on incorporation of the Bill of Rights.
See, Lash, THE FOURTEENTH AMENDMENT, at 252-65.
That door was erroneously closed in a later case,
Cruikshank v. United States, 92 U.S. 542 (1876). Id. at
265; see also McDonald v. Chicago, 561 U.S. 742, 808
(2010) (Thomas, J. concurring).
Reading the Privileges or Immunities Clause as
protecting previously enumerated constitutional rights
does not render the clause “a vain and idle enactment.”
Cf., Slaughterhouse, 83 U.S. at 96 (Field, J.,
dissenting). Such a reading remedies a major
constitutional omission that Republicans had long
complained about—the lack of federal power to enforce
the enumerated rights of the Constitution. As Bingham
explained, “[t]he proposition pending before the House
is simply a proposition to arm the Congress of the
United States, by the consent of the people of the
United States, with the power to enforce the bill of
32
rights as it stands in the Constitution today.” Bingham,
in 2 Reconstruction Amendments at 109.
No moderate Republican in or out of Congress in the
1860s would have approved of a constitutional
amendment that bound the states to enforce an
undefined set of substantive rights and gave Congress
the power the nationalize the same. This includes the
otherwise unenumerated “right to abortion.”
CONCLUSION
The Ninth Amendment as originally understood
stands as a rule of construction: The enumeration of
certain limitations on federal power shall not be
construed as implying otherwise unlimited federal
power. When paired with the Tenth Amendment, these
two provisions have the effect of retaining the right of
the people to local self-government. This is how the
Ninth Amendment was understood for more than a
century after its initial adoption and this was the
common understanding of the Ninth Amendment
during the framing and ratification of the Fourteenth
Amendment. As a matter of historical understanding
the Ninth Amendment cannot be read as authorizing
the enforcement of an unenumerated right against the
states.
Section One of the Fourteenth Amendment, as
originally understood, bound the states to respect
enumerated constitutional rights, including those
enumerated in the first eight amendments. The
Amendment, however, left the control of nonenumerated rights to the people in the states, subject
only to the procedural requirements of due process and
33
the equal protection of the laws. This limited, though
critical, advance in constitutional liberty reflects the
Republican insistence that the enumerated personal
rights listed in the first eight amendments be enforced
against the states without erasing the principles of
constitutional federalism declared in the Ninth and
Tenth Amendments.
The majority in Roe v. Wade, and the plurality in
Planned Parenthood v. Casey therefore erred in relying
on the Ninth and Fourteenth Amendments in support
of their decision to prohibit the people in the states
from exercising their constitutionally retained right to
pass legislation for the protection of unborn life.
Respectfully submitted,
KEVIN C. WALSH
Counsel of Record
UNIVERSITY OF RICHMOND
SCHOOL OF LAW*
203 Richmond Way
Richmond, VA 23173
Telephone: (804)287-6018
kwalsh@richmond.edu
Counsel for Amicus Curiae
* Institutional affiliation for identification
purposes only
Dated: July 27, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.