Lash on Andrew Johnson and the Original Meaning of the Privileges and Immunities Clause

Kurt T. Lash, University of Illinois College of Law, has posted The Constitutional Referendum of 1866: Andrew Johnson and the Original Meaning of the Privileges or Immunities Clause.  Here is the abstract:

Andrew Johnson (Library of Congress)

Fourteenth Amendment scholars commonly assume that there is a relative silence in the historical record regarding public discussion of the proposed Amendment. In fact there was rich and extended public debate regarding the meaning of the Section One of the Amendment and the need to protect the privileges and immunities of citizens of the United States. These robust debates did not take place in state legislative assemblies, but in the campaign speeches, newspaper editorials and public documents accompanying the mid-term elections of 1866. Both Democrats and Republicans made the ratification of the Fourteenth Amendment a central part of their party’s platform, with the election itself serving as a national referendum on the merits of the text.

Because originalist accounts of the Fourteenth Amendment have tended to focus on the framing debates in the Thirty-Ninth Congress, they have both undervalued and underexplored the public political debates of 1866. Most critically, they have completely missed President Andrew Johnson’s important role as leader of the Anti-Amendment Party in the drama of the Fourteenth Amendment. Johnson’s sustained attempt to defeat the Amendment deepened public understanding of the proposed text and its impact on the autonomy of the States. Viewing ratification of the Fourteenth Amendment through the lens of a national election also allows us to see how politically salient events during the summer of 1866 transformed a dry theoretical discussion of the Amendment’s merits into an argument over what was literally a matter of life and death in the southern States. The July 30 massacre of freedmen meeting in convention in New Orleans became a national scandal, particularly when it became clear that state officials had led the attack. Republicans used the New Orleans riot and Johnson’s feckless response as stark examples of the need to adopt the Fourteenth Amendment in order to protect the rights of speech and assembly against state abridgement — rights that were widely accepted examples of the privileges or immunities of citizens of the United States.