Thanks for the explanation. I think I understand your position better, although I’m still baffled what it has to do with the 9th Amendment. And I still don’t understand your basis for separating enumerated and unenumerated rights for exercise of the judicial power.
If you are more comfortable using the Privileges and Immunities Clause of the 14th Amendment to protect unenumerated rights, have at it. Using P&I is just another way, like using Substantive Due Process, to accomplish the same goal: the recognition of the plain language of the 9th Amendment to allow protection of unenumerated rights. There will always be room for debate over what unenumerated rights (and what limits exist to those rights), are protectable by the judiciary, but that’s a whole ‘nother can o’ worms. If Privileges and Immunities is your jam, have at it.
And I believe your “jurisdication” argument was completely abrogated by the 14th Amendment and Section 1983 of the Civil Rights Act 1871, which allows an individual to sue State actors in federal court for violations of their civil rights.
A citizen may sue the United States, and I would rule in his or her favor.
Article III, Section 2, Clause 1
“The judicial Power shall extend […] to Controversies to which the United States shall be a Party”
Amendment XV, Section 1
“The right of citizens of the United States to vote shall not be denied or abridged by the United States […] on account of race, color, or previous condition of servitude.”
Not necessarily. I don’t think the Constitution provides citizens with an equal protection guarantee against the federal government. My first question, if I were a judge presented with a case against the United States where an individual’s unenumerated rights have been infringed, is whether the United States has the power to infringe said rights. Due to the Amendment X, the burden is on the United States first and foremost to provide a textual basis for their power to infringe. If I am convinced that the United States has the power to begin with, the last resort is to ask whether infringing the individual’s unenumerated rights violates some other provision of the Constitution.
As you can see, my approach is different with the federal government. With a State government, the initial assumption is that the State has the power to infringe individual rights (unenumerated or otherwise).
My immediate goal is for me to understand Hamlet’s position, and for him to understand mine. This isn’t one of those topics where I necessarily want to be educated out of my position (contrast with the substantial due process thread linked in post #2). I’m looking to understand other people’s interpretation of the Constitution, and I hope they are looking to understand my position. If somebody changes their mind, that’s a plus, but not the goal.
If I was just looking for the mainstream interpretation given by Supreme Court jurisprudence, I would have made this topic in GQ. The factual answer to the topic question, based on actual jurisprudence, is “the Supreme Court has not ruled that the Ninth Amendment itself protects unenumerated rights from State infringement”. I believe Hamlet would agree.
Yep. Just like you would agree that the Supreme Court’s ruling in the Slaughterhouse Cases all but neutered the Privileges and Immunities Clause of the 14th Amendment.
I think we are getting closer, but I also think you misunderstand my reliance on the privileges or immunities clause of the Fourteenth Amendment. There’s a lot of nuance in my reliance on the Privileges or Immunities Clause, and I would not go so far as to say that clause itself protects any unenumerated rights. The way I read that clause, is basically, ‘no state shall make or enforce any law which shall abridge the enumerated rights of citizens of the United States’. I see “privileges or immunities of citizens of the United States” as synonymous with “enumerated rights of citizens of the United States”.
I know this is where you lost me, because in post #25 you seem to think I disagree with the Slaughter-House Cases, 83 U.S. 36 (1873). I agree with the majority there.
So while I do see the privileges or immunities clause as a vehicle for incorporation of the bill of rights (which deal with enumerated rights), I do not see it as a full substitute for substantive due process with regards to unenumerated rights.
To recap, in the absence of Ninth and Fourteenth Amendment considerations, I don’t think the judicial power extends to cases where a citizen sues their own State for violating their rights under Constitution. This is because the States have sovereign immunity and therefore cannot be sued by their own citizens in federal court without their consent.
I’ll get to the Ninth Amendment at the end of this post.
The Fourteenth Amendment changes that - it allows Congress to abrogate the States’ sovereign immunity in order to enforce that amendment. The Eleventh Amendment “and the principle of state sovereignty that it embodies are limited by the enforcement provisions of section 5 of the Fourteenth Amendment, which grants Congress authority to enforce ‘by appropriate legislation’ the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority.” Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The provision being enforced in that case was the substantive due process clause; but neither you nor I would allow for such a broad interpretation of that clause.
If no other relevant clause existed in the Fourteenth Amendment, then Congress would have no basis on which to abrogate State immunity. You and I would be unable to find jurisdiction for federal courts to use their judicial power to protect individual rights against State infringement. That’s the rub.
Now, it happens that there are other relevant clauses in Amendment XIV. I will mention the two which I think can be used, by Congress, to abrogate State sovereignty in some cases involving unenumerated rights, thus bringing those cases under federal jurisdiction.
The equal protection clause may serve as a basis to abridge State sovereignty for §1983 claims. The equal protection clause can be used to protect rights not enumerated in the federal Constitution, for example the right to travel or to same-sex marriage. But it is not a guarantee of those rights like substantive due process; the State may deny these same rights to all without violating the equal protection clause.
The Privileges or Immunities Clause may also serve as a basis to abridge State sovereignty for §1983 claims. The privileges or immunities clause can be used to protect rights that are enumerated in the Constitution, for example the right of a citizen to vote regardless of race, color, previous condition of servitude, sex, failure to pay taxes, or age (provided the citizen is at least eighteen years old). The Privileges or Immunities Clause may also protect the enumerated right of a citizen of any State to the privileges and immunities of citizens in the several States; this latter Privileges and Immunities Clause refers to the rights a State chooses to recognize for its own citizens, which may be unenumerated in the federal Constitution, such as common law rights. As with the equal protection clause, the synergy between the Privileges or Immunities Clause and the Privileges and Immunities Clause only extends to unenumerated rights that a State recognizes; the State may deny the same right to all without violating the Privileges and Immunities Clause.
The conclusion to be drawn from all of this is that, at least before considering the Ninth Amendment, the judicial power extends to all cases involving enumerated rights, but it only extends to cases involving unenumerated rights when other, enumerated rights are implicated (specifically, the right to equal protection or the right to privileges and immunities of citizens of the several States). This is the basis for separating enumerated and unenumerated rights.
It is also the backdrop against which the Ninth Amendment comes into play:
To close my argument, my interpretation of the Ninth Amendment offers no substantive or explicit prohibition of State power, or grant of federal power, whatsoever.
That’s a lot of words, Max. I’ll attempt to keep this concise. But I will likely fail, because I’m a little liberal (chuckle) with the quotes.
You believe the 9th, the 14th, likely the 11th, and pretty much every Amendment that deals with the issue have a hard distinction between enumerated and unenumerated rights. I have pointed out, repeatedly, that none of those Amendments contain any language that makes that distinction, and that interpretation flies clearly in the face of the clear language of the 9th Amendment. It is difficult to imagine an example that “Denies or disparages” unenumerated rights more than allowing for judicial protection of some, but not the other. Not only that, it flies in the face of one of the “original intents” (I put it in quotes, because I’m not a big believer in originalism). The founders, big fans of natural rights, were very concerned that listing some rights would lead to others being disparaged and specifically put in the 9th Amendment to deal with that (and the federal power you mentioned).
Likewise, the Privileges and Immunities Clause makes no such distinction.
“The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.” [url=https://www.theusconstitution.org/blog/the-privileges-or-immunities-clause-and-unenumerated-fundamental-rights/]From here[url]
The rights in the P&I Clause are those that: “in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union . . . [including] the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” Corfield. v. Coryell (1823).
“to these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.” Senator Jacob Howard, Floor Manager of the Senate discussing the P&I Clause.
“From the text, according to contemporaneous dictionaries, we know the word “immunity” meant freedom in a universal sense. From the Articles of Confederation we know the unenumerated rights to trade and commerce were included. From the Civil Rights Act of 1866 we know the unenumerated rights to make and enforce contracts were included. And from the floor statements we know that all the rest of the unenumerated natural rights, including the right to the “enjoyment of life and liberty” in the Declaration of Independence, were specifically identified as within the rights protected by the clause.” From here
I admit that my interpretation of the judicial power as not extending to unenumerated rights “denies or disparages” said unenumerated rights. I do not think this contradicts the Ninth Amendment. I am fairly certain that the hidden premise - the interpretation of the amendment itself - is one of the core disagreements between us.
My interpretation of the Ninth is that the actual enumeration of rights does not deny or disparage other, unenumerated rights. By enumeration I mean the mere fact that other rights are listed. The Ninth Amendment, in my eyes, only tells me not to use a certain statutory construction when dealing with unenumerated rights (expressio unius est exclusio alterius). In contrast, the Tenth Amendment tells me to use the same kind of statutory construction for unenumerated powers (expressio unius est exclusio alterius).
Based on this interpretation, the federal government which denies or disparages unenumerated rights does not violate the Ninth Amendment unless such denial/disparagement is based solely on the fact that other rights were enumerated in the Constitution.
I decline to extend judicial protection to cases involving unenumerated rights because I think the Constitution fails to grant the necessary jurisdiction. This is not the same as declining to extend judicial protection to cases involving unenumerated rights solely because other rights are enumerated in the Constitution. Therefore, when I decline to extend judicial protection to cases involving enumerated rights, I do not violate the Ninth Amendment.
I’ll address your concerns about the privileges and immunities/privileges or immunities separately.
How do you come by your interpretation? Is it a working back from the result? Because, to me, it seems completely non-sensical for the 9th Amendment to have the meaning you ascribe. It completely wipes away any positive function of the individual rights part of the Ninth Amendment and ignores the stated intent of the founders. Maybe I misunderstand your reading of the Ninth, but I don’t see from where you get it or how not allowing judicial protection of unenumerated rights simply because they are unenumerated (which is what you are doing) isn’t contrary to a textual, an originalist, and a progressive reading of the language.
If we were in 1802, you would have a point. But with the adoption of the 14th Amendment, the “jurisdiction” argument fails. If you think it doesn’t you are simply bootstrapping the same argument on itself. You conclude there is not “jurisdiction” under the 9th Amendment because the 14th Amendment doesn’t cover unenumerated rights because there is no jurisdiction.
Nowhere in the 9th or the 14th Amendment do they make a distinction between enumerated and unenumerated rights. Nowhere in the Constition is that distinction spelled out either. But the 9th Amendment clearly contradicts that type of reasoning. So, when the clear language of the Constitution says you not to interpret individual rights that way, and there is no clear language opposing it, I’ll rely on the clear language.
Other points forthcoming, let me address this first. Perhaps these summaries are less circular:
The Ninth Amendment does not inherently expand the judicial power so as to allow for protection of unenumerated rights, because I do not interpret the text that way.
The Ninth Amendment does not enumerate any rights, because I do not interpret the text that way.
The Ninth and Fourteenth Amendments taken together do not expand the judicial power so as to allow for protection of unenumerated rights, because the Fourteenth Amendment only expands the judicial power to cases involving enumerated rights*, and the Ninth Amendment does not enumerate any rights.
~Max
*With exceptions for unenumerated rights that States choose to grant to their own citizenry. The Fourteenth Amendment expands the judicial power to protect U.S. citizens from discrimination by the States, even where unenumerated rights are involved.
I’ll say that I strongly disagree with the late Mr. Kendall. I will praise his passion, but I don’t think the clause extends any further than those rights which a State chooses to recognize for its own citizens; whether a State may abridge certain fundamental or common law rights is a matter for the State to determine, in my opinion.
Likewise, I disagree with the learned Justice Washington’s holding. This may surprise you, but if you read the actual opinion from the Circuit Court of the Eastern District for Pennsylvania (not the Supreme Court, contrary to some sources), Justice Washington held that a New Jersey law prohibiting out-of-staters from fishing did not violate Article IV’s privileges and immunities clause. I disagree with that holding both on the grounds presented (that the State never surrendered the power to regulate its own waters how it sees fit) and on the grounds that I would use today (a strict scrutiny standard; New Jersey could issue a limited number of fishing licenses without discriminating against out-of-staters).
With reference to the dictum you actually quoted, I don’t necessarily disagree. Certainly all of those rights can come under the general heading of “Privileges and Immunities of Citizens in the several States”. It is quite possible that for most or all of our history, the rights listed were actually so fundamental that each State recognized them all. Some of them are enumerated rights in the federal Constitution, for example “protection by the government” has a parallel in the Fourteenth Amendment and Article IV Section 4. “Life and liberty” is also used in the Fourteenth Amendment’s due process clause. All of the rights he lists are “subject nevertheless to such restraints as the [State] may justly prescribe for the general good of the whole.”
I find your final citation, a blog post by Devin Watkins with the Competative Enterprise Institute, to be quite agreeable in the beginning.
"The Privileges or Immunities Clause speaks of the right of 'Citizens of each State' being entitled to the rights 'in the several States.' The citizen of one state cannot be denied by another state the same rights that state recognizes for its own citizens.
Meanwhile, the Privileges or Immunities Clause protects the rights 'of citizens of the United States.' A state cannot refuse to recognize the rights recognized by the federal government. If there is a right against the federal government’s power, that same protection is applied against the state’s power."
By the end, he seems to be countering someone else’s argument. A certain “Lash” fellow who, from what I can gather, would hold that the Privileges or Immunities Clause is inapplicable unless the bill of rights is implicated. I think I have sufficiently distinguished my own interpretation of that clause to excuse myself from responding to the arguments presented in the latter half of that blog entry.
I do not doubt that. But simply saying you disagree, without offering citations or rebuttals to his arguments and just restating your position isn’t really a debate. It’s just repetition. He quotes Howard; he cites to state constitutions at the same time; he discusses numerous Supreme Court cases. You simply post that you don’t agree.
Great. Especially when he states: “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate.” He clearly indicates that he was not relying simply on rights enumerated in state constitutions only (as you opine), but rather advocating for my reading of both the 9th and the P&I clause.
I think you’re doing yourself a disservice, because a great majority of his points apply not just to Lash’s position, but yours also. He, like Kendall, offers a fair amount of evidence to support his position. From the contemporary dictionary definition of the words Privileges and Immunities to historical context from the Articles of Confederation to contemporary caselaw to statutes, including the Civil Rights Act of 1866, and legislative history of the clause itself. That’s a lot of evidence to simply handwave away with a simple “I disagree” or “Lash’s problem, not mine”.
I don’t think “not allowing judicial protection of unenumerated rights simply because they are unenumerated” is an accurate summary of my position. Let me give you the straight textual argument.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The first step when I analyze any sentence is to identify the subject and predicate. The subject in this sentence is “The enumeration in the Constitution, of certain rights”; the predicate reads “shall not be construed to deny or disparage others retained by the people”.
I construe the judicial power of the United States in such a way as to deny or disparage unenumerated rights retained by the people. This much has been admitted; however, the judicial power of the United States is not “the enumeration in the Constitution, of certain rights”. Neither is the judicial power based on such an enumeration of rights: I limit the judicial power of the United States based on the statutory construction of all federal powers mandated by Article X, not based on “the enumeration in the Constitution, of certain rights”. Therefore, my construal of the judicial power of the United States is not repugnant to the Ninth Amendment to the United States Constitution. QED.
And that’s all the analysis that is necessary, in this case.
There isn’t much room for originalism in the Ninth Amendment. You have argued, and I quote,
I will stipulate to both sentences as written.
The framers of the Ninth Amendment were concerned that listing (enumerating) certain rights would imply disparagement of other, unenumerated rights. You know this was a big concern because the framers of the Constitution put a lot of weight into that kind of statutory construction. The federalists didn’t want to pass a bill of rights at all. So they passed an amendment which says, my words, “don’t interpret our listing of certain rights as a disparagement of other rights not listed”.
The amendment does not say, “we’re listing some fundamental rights, don’t disparage other fundamental rights that we may have forgotten”.
You see, the Ninth Amendment was put in there by federalists - the people who didn’t want the bill of rights at all. They were afraid that a bill of rights implies that the people are giving up all rights not listed. Such was the case historically - a bill of rights would be drawn up after bloody struggle between the monarch and the people, and all rights not secured to the people in that document would be deposited in the hands of the monarch.
Authorities for my originalist argument
There is Federalist No. 84, already cited but reproduced here for convenience,
" I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."
Also James Wilson’s PA Statehouse yard speech,
“In truth, then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”
Or the letter from Judge Pendleton, presiding officer of the Virginia ratifying convention, during the same,
“Again is there not danger in the Enumeration of Rights? may we not in the progress of things, discover some great & important, which we don’t now think of? there the principle may be turned upon Us, & what is not reserved, said to be granted […]”
Then, aren’t those unenumerated “rights” reduced to the rank of mere benefits the respective federal or state sovereigns may give or take politically? To whom do I go to redress from a violation of my unenumerated rights by an act of legislation?
I think here is where you lose me (I’m having trouble parsing what you mean). You also seemingly lose the rationality of your argument. The Ninth Amendment does not say “The enumeration in the Constitution, of certain rights, shall not be construed [by only those parts of the Constitution that enumerates rights] to deny or disparage others retained by the people.” As you admit, you are “construing” the grant of “the judicial power” to deny or disparage unenumerated rights. Right there, you are violating the clear language of the Ninth Amendment. I really don’t think it could be any clearer.
This rationalization of yours that “The enumeration in the Constitution of certain rights” doesn’t happen in the judicial power, so you can ignore the 9th Amendment, is simply that, a post hoc rationalization. The “enumeration of in the Constitution of certain rights” in no way shape or form is a requirement that allows you to deny or disparage rights.
Yes. Yes it does. It says you can’t construe the fact that they didn’t list other rights to lead to the denial or disparagement of those rights. Not in your exact words, but the clear language and the intent of the founders who wrote it, mean exactly that.
Which is, precisely, what your interpretation of the Constitution does.
Reading through your citations, I must point out that I do not disagree the Ninth Amendment is also there to limit the powers of the federal government. But the fact that is one of the reasons it was ratified in no way negates the fact that the Ninth Amendment also is meant to stop people from “construing” that the listing of some rights leaves other, unenumerated rights unprotected.
I admit to be a bit surprised you used a quote from James Wilson. The same James Wilson who opposed the Bill of Rights because he was terrified that your interpretation that if a right is not enumerated it cannot be judicially protected might happen. “”[W]ho will be bold enough to undertake to enumerate all the rights of the people? and when the attempt is made, it must be remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted." Your reading of the Constitution causes the exact problem that Wilson was warning against. Which is, once again, why they enacted the Ninth Amendment.
Same thing. Pendleton, a huge natural law dude, was warning people that your interpretation might happen if they don’t protect against it. And so they did protect against it by adding the Ninth Amendment. You seem to be proving my point.
Response to Doug Kendall's Essay on the Privileges or Immunities Clause and Unenumerated Fundamental Rights
The words of the Privileges or Immunities Clause protect the substantive fundamental rights of all Americans. As Senator Jacob Howard said in the Senate debates on the Amendment: “[i]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .” Many others said the same thing, and the Amendment’s opponents never once contradicted them.
I agree with this interpretation of the Fourteenth Amendment, insofar as the "fundamental rights and privileges which pertain to citizens of the United States" are those rights guaranteed to citizens of the United States by the Constitution.
The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution.
He is right. It does not matter whether a right is enumerated in the Constitution or not. The federal government may abridge State law wherever said law is repugnant to the Constitution. A State law which violates some right not mentioned in the Constitution, may yet violate a privilege or immunity which is mentioned in the Constitution. That is the only situation in which I would extend the Privileges or Immunities Clause so as to protect unenumerated rights from State infringement.
The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.
If a State constitution protects some right not enumerated in the federal constitution, yet denies the same right to citizens of other States, that violates the privileges and immunities guaranteed to the latter citizens under Article IV Section 1 of the Constitution. The right of these citizens to the privileges and immunities of citizens in the several states is itself protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Thus, Congress has the power to protect these citizens against the discrimination of the State; the Ninth Amendment does not come into play.
Certainly I cannot envision a case where the Ninth Amendment serves as a basis for the federal government to strike down a State law (where the Ninth Amendment "protects unenumerated rights").
The framers recoiled at the treatment of slave families – parents were denied the right to marry and often separated, children were taken from them, and education and free worship were limited or prohibited altogether – and they wrote the Privileges or Immunities Clause to protect these liberties of heart and home.
I will require a citation or at least an argument for this claim. My opinion is that the equal protection clause covers these concerns - the equal protection clause does not rely on the privileges or immunities clause for enforcement. I would not directly extend the privileges or immunities of citizens of the United States to such unenumerated rights as the right to marry or the right to education; in the edge case where a State guarantees those rights to its own citizens but not citizens of other States, that is repugnant to both the equal protection clause and the privileges or immunities clause (via the privileges and immunities clause).
I agree that the privileges or immunity clause (in conjunction with the First Amendment) protects the right to free worship from State infringement.
As further evidence against Mr. Kendall's assertion, the Privileges or Immunities Clause only applies to State actions under any reasonable interpretation. Private individuals who violate a Black person's unenumerated rights are not the same as a State which makes or enforces a law.
Thus, the results the Court has reached under substantive due process need not be jettisoned; the Court simply has focused on the wrong clause of the Fourteenth Amendment. [...] That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. [...] Now is the chance to change the American constitutional conversation about fundamental human and civil rights. Progressives have the chance to rejuvenate the Clause in the Fourteenth Amendment that was meant to protect the substantive liberty of all Americans, and to show how the Constitution’s text and history support the Supreme Court’s existing fundamental rights jurisprudence. With a text that explicitly protects the substantive liberties of all Americans finally back in the Constitution, claims that the Court has no textual basis to safeguard substantive constitutional rights would lose their force, and the protection of fundamental constitutional rights would be on secure textual footing.
As I have rejected or countered the premises, the conclusion does not follow.
If the indication is that certain rights should be considered "privileges and immunities of the citizens in the several states" regardless of whether the several states recognize those rights, I must disagree. I don't think Justice Washington contemplated a State denying all of its citizens one of the fundamental rights he listed; it would have been inconceivable. On a textual basis, I think the words "of the citizens in the several states" constitute an infinitive clause modifying the term of art "privileges and immunities". Therefore the term "privileges and immunities" means 'the rights guaranteed by each of the several States to citizens of their own state.'
Indeed, my interpretation of the privileges and immunities clause is echoed by the CEI website you cited:
"The Privileges [and] Immunities Clause speaks of the right of 'Citizens of each State' being entitled to the rights 'in the several States.' The citizen of one state cannot be denied by another state the same rights that state recognizes for its own citizens.
Meanwhile, the Privileges or Immunities Clause protects the rights 'of citizens of the United States.' A state cannot refuse to recognize the rights recognized by the federal government. If there is a right against the federal government’s power, that same protection is applied against the state’s power."
Note that where I have written "[and]", the original document reads "or". This is clearly an error, because 1) the Privileges or Immunities Clause does not contain the words "in the several States", and 2) it doesn't make sense to offer two different explanations of the Privileges or Immunities Clause twice, especially not with the word "Meanwhile" between them.
Response to Devin Watkins' Essay on The Unenumerated Rights of the Privileges or Immunities Clause
I've read and re-read the entire essay. The only, I repeat only sentence I take issue with is this one:
"If the purpose is to restrain states and compel them to respect these rights, including those that 'cannot be fully defined in their entire extent and precise nature,' then Lash’s interpretation cannot be the original meaning."
And I don't actually disagree with the sentence. I don't know what this Lash wrote.
You seem to think it was argued that the purpose of the Privileges or Immunities Clause was to restrain the states and compel them to respect rights neither enumerated in the federal Constitution nor recognized by the State for any of its own citizens. Perhaps my reading comprehension is failing me, or perhaps Devin Watkins of CEI failed to articulate himself, but I do not see any arguments in support of that. It's like your claim comes out of nowhere.
He cited such fundamental rights as trade and commerce, ingress and egress, the benefit of the writ of habeas corpus, the right to maintain actions of any kind in court, the right to own and dispose of real and personal property, and the right to enjoy life and liberty. These, he says, are the sort of rights that the privileges and immunities clause is supposed to protect. And I agree, so long as the States involved grant those rights to their own citizens. Never is it explicitly argued by Devin Watkins or any of his citations that the privileges and immunities of citizens of the several states extends to rights a State does not recognize for any of its own citizens. This assertion, if it were made, would contradict his own exposition on that clause, cited above, and even highlighted in the URL you used as a citation.
Judge Washington does not, from what I can tell, explicitly argue that the privileges and immunities clause could extend to rights a State declines to recognize even for its own citizens. He lists rights that States have always recognized for their own citizens. The idea of a State denying all of its own citizens any of those fundamental rights was most likely inconceivable.
Senator Howard cites Judge Washington's enumeration of privileges and immunities in each of the several States. He says the Fourteenth Amendment and particularly the privileges or immunities clause gives Congress the power to enforce the rights implicated by that clause in Article IV, plus rights then secured against federal infringement (eg: listed in the bill of rights). And indeed, the Fourteenth Amendment was the constitutional foundation for the Enforcement Acts of 1871, some sections of which survive even today (42 U.S.C. § 1983, 1985).
There really isn't much else to comment on. If Lash argued that the Privileges or Immunities Clause could not serve as a basis to secure unenumerated rights even where States recognize said rights for their own citizens, I too would disagree with Lash's interpretation. I can agree with the rest of the essay without making assumptions about other people's arguments.
Under my interpretation, your remedy would probably be through the legislature. As an example, if your state amended their laws/constitution so as to stop providing benefits for married couples, and to stop issuing certificates of marriage altogether, you would conceivably lose the “fundamental” right to marriage. The only remedy would be through the same legislative process, that is, changing the laws back so that the state issues marriage certificates again and provides benefits to married couples.
So you are in fact answering affirmatively to the first part of my post: to you the “unenumerated rights” are not rights as most of us understand the word, something that the political process may not deprive a citizen from without a due process on the merit of the case, but mere benefits subject to legislative decision.
No, unenumerated rights are still rights, trivially. I can claim any right whatsoever, it doesn’t matter whether the government or the law respects my claim or not if you are merely asking whether the thing I am claiming is a right. I know this is pedantry, but legal interpretation is highly pedantic.
In my interpretation of the Constitution there are some situations where the federal government may protect an unenumerated right; however, in all of these situations, not protecting the unenumerated right would necessarily infringe on some other, enumerated right.
For example, pretend a State law says all white citizens are entitled to choose between life in prison and execution when convicted of a felony in the first degree, while non-white citizens are not entitled to make that choice and are automatically punished with execution. The right of a convicted felon to choose between life in prison and execution is not enumerated in the federal Constitution, but the right of all people subject to the State’s jurisdiction to equal protection of that State’s laws is enumerated in the federal Constitution. And so the federal government may strike down the State law as repugnant to the equal protection clause of the Fourteenth Amendment; in doing so, the federal government has protected the unenumerated right of non-white felons to choose between life in prison and execution.