Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage

At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?”[1] Olson replied first with what he called a “rhetorical question,” viz., “When did it become unconstitutional to prohibit interracial marriages?”  For Olson, the answer was clearly not 1868—the date of the Fourteenth Amendment’s ratification.  Rather, he explained, in nullifying racial-endogamy laws, the Court in Loving v. Virginia (1967) had ventured into “unchartered waters” with reliance on “evolutionary” jurisprudence as a compass.

Richard and Mildred Loving

Richard and Mildred Loving

In making this claim, Olson is in good (and numerous) company.  Prominent jurists have repeatedly declared the Court’s decision in Loving v. Virginia to be incompatible with the original sense of the Amendment.  The judges include Justice Kennedy[2] and his colleagues in Planned Parenthood v. Casey; Judge Reinhardt and the Ninth Circuit in Washington v. Glucksburg; numerous progressive scholars, including Jack Balkin, Michael Klarman, and William Eskridge; and even some prominent conservatives like Steven Calabresi and Hadley Arkes [on this blog].

But this belief, as Lincoln would say, represents one of those “assumed historical facts which are not really true.” The claim rests on three historical proofs, two of which the Court rightly rejected in Loving, and each of which is specious.

First, it is argued that during congressional debates, the drafters of the Fourteenth Amendment expressly denied it would affect racial-endogamy laws.  To the contrary, as the Court pointed out in Loving, these congressional reassurances concerned the Civil Rights Act of 1866 and other statutes, but not the Fourteenth Amendment.  Even though Democrats expressly objected that the Privileges or Immunities Clause would abrogate racial-endogamy laws, congressional Republicans remained silent.  This Republican silence generally prevailed in the ratification debates as well.

Various considerations suggest this Republican silence represented tacit acknowledgement.  First and foremost, the very terms of the Amendment seemed to preclude racial-endogamy laws.  The Amendment secured to free blacks the status, privileges, and immunities of American citizenship.  Before 1866, legal authorities had generally agreed that these privileges included the right of intermarriage, or more precisely, the immunity from endogamy laws.  This general (but not unanimous) consensus prevailed across the political spectrum: from Roger Taney to Stephen Douglas to Orestes Brownson to William Lloyd Garrison to John McCune Smith (perhaps the leading black intellectual in antebellum America).

Given this background, Democrats reasonably alleged that the proposed Amendment, by its express terms, would prohibit state laws impeding black citizens’ intermarriage with white citizens.  Republican silence, then, confirmed these fears.

Moreover, before 1866, the advocates of black citizenship had shown sustained hostility toward enforced racial-endogamy.  They had successfully resisted the adoption of such laws in states like Pennsylvania, and had repealed these laws not only in Massachusetts (1843), but also in Iowa (1851), the Kansas Territory (1859), and the District of Columbia (1862).  In the latter case, it was Republican Senator Henry Wilson, a champion of Massachusetts’s repeal twenty year earlier, who proposed a measure to sweep away the District’s entire “black code,” including the ban on interracial marriage.  This proposal was adopted as an amendment to the same law that established schools for “colored children.”

This hostility intensified precisely while the Amendment was pending before the states. Radical Republicans succeeded in resisting or repealing racial-endogamy laws in a number of southern states.  And some, like Horace Greeley, advocated such repeal on the grounds that these statutes were void under the Civil Rights Act, notwithstanding the reassurances of that Act’s drafters.

Finally, the silence was especially deafening because some Republicans were not silent During the 1866 campaign, Indiana’s Governor Oliver Morton openly acknowledged the threat posed to racial-endogamy laws.  And at the Arkansas constitutional convention, Republican delegates successfully opposed an effort to include a ban on interracial marriage, partly on the grounds that such a measure would violate the Privileges or Immunities Clause of the pending Amendment.

Second, it is alleged that during Reconstruction, judges generally upheld racial-endogamy laws.  Here too, the Loving Court rightly noted that this evidence proved little.  The judges—none of whom had been antebellum friends of black citizenship, and most of whom had been disloyal during the War—“were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect.”  Even the judges of Indiana’s Supreme Court, the sole midwestern court to endorse these laws, were members of Indiana’s avowedly racist Democratic Party.  The judges included John Pettit, who, as Senator, had (in)famously called “all men are created equal” a “self-evident lie,” and had said, in defending Indiana’s black-exclusion law, “we choose to judge of the breed of dogs we want with us.”

These judges’ antagonism to Reconstruction was frequently obvious on the very face of their opinions.  As attorneys for the Lovings indicated at oral argument, the judges often distinguished the white “southern people” or even “our people” from other “peoples” like northerners and black southerners.  This distinction was diametrically opposed to the spirit and letter of the Reconstruction Amendments.

Moreover, these reported cases were not representative of national judicial opinion.  During Reconstruction, Republican judges had little opportunity to formally register their sentiments because of the absence of enforced racial endogamy in strongly Republican states.  But where Republican judges did speak, they concluded, with virtual unanimity, that these laws had been abrogated by the Fourteenth Amendment, the Civil Rights Act, or both.  These jurists included trial judges in North Carolina, Indiana, Louisiana, and Texas, and the justices of the supreme courts of Texas and Alabama.

In Ohio, rare enforcement prompted Republican jurists to assert the statute’s unconstitutionality.  Representing his mixed-race client in an 1869 case for breach of promise to marry, former Lieutenant Governor Andrew McBurney, who had overseen and certified Ohio’s ratification, successfully made this argument.  In 1877, Republican judges in Cleveland and Cadiz (John Bingham’s adopted hometown) likewise invoked the Fourteenth Amendment to dismiss the first post-1868 prosecutions.

Third, some jurists, like the Court in Casey, have alleged that interracial marriage remained illegal in a majority of the states, even after 1868.  To the contrary, within five years after ratification, racial-endogamy laws were not in force in 23 of the 37 states—mainly Republican-leaning states—largely because Republican officials had generally repealed these laws, or refused to adopt or enforce them.  The widespread validity of interracial marriage was confirmed by a multistate survey conducted by a Nebraska judge in 1873, the recent scholarship of historian Peter Wallenstein, and my own research.

If the historical evidence does not support this “assumed fact,” why has this assumption been so dominant?  Partly the responsibility rests with our political ancestors.  The Supreme Court’s 1873 decision in the Slaughter-House Cases all but destroyed the constitutional basis for challenging racial-endogamy laws.  The Court there held that the “privileges and immunities” protected by the Amendment were not the fundamental rights of American citizenship, but rights created by federal law.  Plainly, the right of intermarriage did not satisfy this new definition.

More importantly, after Reconstruction, the racist zeitgeist was as strong as it was wrong.  The dominant forces politically marginalized African-Americans and those advocating fidelity to the Reconstruction Amendments.  The zeitgeist partly nullified these amendments, most notoriously through the suppression of black suffrage, but also by the revival of racial-endogamy laws across the South, the adoption of these laws in the new western states, and renewed prosecutions even in Michigan and Ohio.  Despite repeal in these latter two states, “anti-miscegenation” was on the march.  By the twentieth century, a solid majority of states once again banned interracial marriage.

Most perniciously for scholarship, this zeitgeist was dominant precisely at the birth and infancy of the modern law school and political science department.  The zeitgeist was so comprehensively triumphant that it even concealed the evidence of its own triumph.

Partly the fault lies with the prejudices of contemporary progressives: viz., that the American political tradition is essentially racist, that even after abolition and Reconstruction, racism was (and still is?) as American as apple pie, and that consequently, progress in race relations has resulted from radical rejection of tradition, and not from its renewal and recovery.  But in truth, History has not proved a reliable friend to interracial justice.  The zeitgeist has frequently been strong and wrong.

In some sense, Olson’s error belongs to the same genus as the “assumed historical fact” Lincoln found in the Dred Scott decision. Justice Taney had erroneously assumed that “the public estimate of the black man [was] more favorable [in 1857] than it was in the days of the Revolution,” so fidelity to the Constitution of 1787 involved rejection of black citizenship in 1857.  Likewise, progressive jurists assume that the public estimate of African Americans must have been “more favorable” in the twentieth century than in the old days of Reconstruction, so fidelity to the Constitution of 1868 would permit racial-endogamy laws.

But contrary to the progressive conceit, American constitutional history has involved both decline and advance; not just progress, but also sustained degeneration.  In truth, Loving represented not evolution, but recovery; not judicial creativity, but constitutional fidelity; not the birth of a new freedom, but a new birth of the old freedom: the full and equal citizenship promised by the Reconstruction Amendments.


[1] This post is based on research presented in detail in my article, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause.

[2] At oral argument in Hollingsworth, however, Justice Kennedy noted that statutory bans on interracial marriage were in derogation of the common law.

David Upham is assistant professor of politics at the University of Dallas.

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Comments

  1. Andrew says

    There is much silence in this blog post about the Equal Protection Clause, which I think fully supports the decision in Loving. In contrast, I don’t think the Privileges or Immunities Clause supports that decision.

    A right cannot plausibly be among the privileges or immunities of citizens of the United States if it is located nowhere else in the Constitution, and places no limit on Congress. This is not only plain from the text of the PI Clause, but was also the unanimous consensus in Dred Scott. Taney wrote: “The powers of the [federal] Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself.” Curtis wrote: “[T]he privileges and immunities of general citizenship, derived from and guaranteed by the Constitution, are to be enjoyed by….citizens of the United States.”

    Those who want to interpret the PI Clause as a guarantee of unenumerated rights can find some support in the historical record, but it is relatively meager. And not incidentally it hands to liberal judicial activists an extremely powerful tool for controlling public policy by manufacturing new rights.

    The Equal Protection Clause supports the Loving decision by its terms. A statute that was largely designed to place a mark of inferiority on mixed-race children was the essence of what the EP Clause was designed to prevent.

  2. David Upham says

    Andrew,

    Thanks very much for posting a reply! As you could probably guess, nothing I write here is new to you, as we’ve corresponded at length on this topic. But for the benefit of the three or so people who might read these comments, here goes:

    I have two main reasons for disagreeing with you.

    The main problem is that in all the commentary on racial-endogamy laws and the Amendment, no one, to my knowledge, before 1880 or so, ever said that the Equal Protection Clause might adversely affect these laws. When any particular clause was mentioned–as you know, frequently the reliance was on Section 1 in an undifferentiated sense–it was the Privileges or Immunities Clause.

    For that reason, the Slaughter-House Cases became a favorite authority of the “anti-miscegenationists.” If the privileges secured by that Clause are limited to those which “owe their existence” to the federal government and its Constitution, well plainly interracial marriage rights did not qualify, for Americans, with apparent uniformity, acknowledged that marriage was anterior to all political societies.

    Second, Slaughter-House does violence to the text of the P or I Clause, because the United States, and its citizenry, predate the existence of the Constitution and its Congress. See, e.g., the durational citizenship clauses of Article I, which presuppose that U.S. citizenship existed as early as 1778 (1787-9), three years before the Articles was ratified. Furthermore, the Preamble and other provisions indicate that the United States is not a creature of the Constitution, rather the Constitution and thus Congress are the creatures of the citizens of the United States.

    These “unenumerated” privileges are enumerated in multiple places–what were the those privileges that belonged, of right, to the citizens of all free governments, as enjoyed in the free, republican governments of the several states since independence? So said Corfield, the authority most frequently cited in 1866-1868 as explantory of the Privileges or immunities Clause. Where enumerated? See the state constitutions and the common law in particular.

    One of these immunities seems to have been the right to intermarry with other citizens–an ancient privilege of citizenship–or more precisely, an immunity from endogamy rules, like enforced racial endogamy.

  3. Andrew says

    Thanks for the interesting comment. You seem to be interpreting the phrase “privileges or immunities of citizens of the United States” to mean privileges and immunities that are as old as the United States. But such an interpretation seems wrong to me. Barack Obama is the President if the United States, but that does not suggest he’s as old as the United States. Not even the office of President of the United States is as old as the United States.

    As to whether the Equal Protection Clause was explicitly cited against interracial marriage prior to 1880, I haven’t scoured the record like you have, so I’m glad to take your word for it. But as you say, Section 1 as a whole was cited for that purpose. Moreover, the contracts clause of the Civil Rights Act of 1866 was cited for that purpose, and the Equal Protection Clause was cited as support for that contract clause.

    I agree with you that Slaughter-House misinterpreted the Privileges or Immunities Clause. But I think that Clause simply incorporates enumerated rights against the states. The only reason why people like Jacob Howard suspected it would do much more than that is because Howard et al. misunderstood the Comity Clause in Article IV (Howard thought the Comity Clause applied the Corfield rights against the federal government, but he also acknowledged that SCOTUS had not yet definitively decided that issue).

  4. David Upham says

    You’re right, neither this President, nor the Presidency is as old as the Republic. Nor, for that matter, is the Congress created by the Constitution, nor the Constitution. But American citizenship is as old as 1776, when the “good people” of these united colonies became the p.eople of the United States. Did the citizens of the United States have any privileges pertaining to that citizenship? Yes, said Corfield.

    The “mistake” you identify was a very widely held position before 1866, and is reflected in numerous statements during the drafting and ratification debates. See, inter alia, Philip Hamburger’s recent piece, my unpublished piece on the antebellum meanings of “privileges and immunities,” and the work of, among others, David Bogen, who noted that in the 39th Congress every person to speak of the relationship between Article IV and the Fourteenth Amendment treated the “privileges and immunities” as the same. Indeed, as Hamburger and I point out, the Privileges or Immunities Clause resulted from a long struggle to secure a federal enforcement of the absolute-rights of American citizenship secured by Article IV (according to their pre-Paul v. Virginia reading), including the freedom to travel and the freedom of speech. See, e.g., the 1860 platform of the Republican Party, which you and I both cite.

  5. Andrew says

    Thanks again for the comment. I don’t think that I mentioned any “mistake” in my two previous comments above, but I did say something similar: that Senator Jacob Howard “misunderstood” the Comity Clause. You’re correct that Howard was not alone in his view. The Supreme Court did not give its detailed position about the Comity Clause (in the case of Paul v. Virginia) until after the Fourteenth Amendment was adopted.

    It seems to me that you can take the view (1) that Paul v. Virginia was wrong, or instead the view (2) that we should pretend Paul v. Virginia was wrong only for purposes of interpreting the Fourteenth Amendment. I’m not sure which is your position. My own position is that people like Senator Howard specifically deferred to what SCOTUS would later say about the Comity Clause, and Paul v. Virginia was correctly decided.

    Regarding the age of U.S. citizenship, sure, it’s true that there have been U.S. citizens for almost a quarter of a millennium. But there’s nothing in the text of the Privileges or Immunities Clause, adopted in 1868, that explicitly distinguishes (1) then-existing privileges and immunities from (2) only the long-existing privileges and immunities that had been recognized by states since American independence, from (3) new 21st century privileges and immunities, from (4) privileges and immunities that were created (rather than preserved) by American independence. In the constitutional context in which the clause appears, and in view of the suggestive phrase “citizens of the United States” (instead of “citizens of each state” which was deliberately deleted), it’s very reasonable to construe the clause to mean “constitutional” privileges and immunities of national citizenship. And that is exactly what the lead opinion and the lead dissent in Dred Scott indicated.

  6. David Upham says

    Andrew and I posted some exchanges here: http://originalismblog.typepad.com/the-originalism-blog/

    In order not to burden the Originalism Blog with further post requests, I’ll respond here.

    Andrew’s last post was as follows. I’ll add numbers here in order to preserve the four topics we’ve discussed

    1. The contract provision of the 1866 Civil Rights Act was sometimes invoked in that era against laws banning interracial marriage, and the Equal Protection (EP) Clause was sometimes invoked to support that statutory provision. Thus, there was no need to invoke the EP Clause directly, as Professor Upham suggests.

    2. Moreover, I don’t see how it is suggested by the text of the Privileges or Immunities (P or I) Clause that the word “citizens” refers to anything more than the citizens subject to the clause, rather than citizens of previous generations as Professor Upham suggests.

    3. Professor Upham says that Congress (not just the states) must be bound to respect the privileges protected by the P or I Clause, by virtue of the Comity Clause in Article IV. But that is not how the Supreme Court has interpreted the Comity Clause (which requires little more than that states treat visitors equally and that citizens be allowed to go and enjoy privileges and immunities in other states), and such a broad interpretation would render the P or I Clause superfluous.

    4. Regarding Dred Scott, Professor Upham notes that Chief Justice Taney mentioned that black citizens would be entitled to some rights that are not enumerated in the federal Constitution, but that was in Taney’s discussion of privileges and immunities of state citizenship under the Comity Clause when a person travels to another state and is thus entitled to equal rights. Therefore, I don’t think that Professor Upham has come to grips with the common ground in Dred Scott that I pointed to and quoted, regarding the privileges and immunities that are enforceable against the federal government.

  7. David Upham says

    On the four topics of disagreement, let me make first one global comment and several particular responses.

    Global comment: The evidence related to these questions is both voluminous and at the same time very complex, reflecting disagreements but even more so a lack of precise definition of terms. There is no particular court decision, no particular speech, that carefully expounded the scope of the four clauses of the Amendment, still less one that many (most) agreed was the best exposition.

    Furthermore, as I point out in my article on “privileges and immunities,” there were at least three different competing understandings of the Privileges and Immunities Clause on the eve of the Civil War. Insofar as the Privileges or Immunities Clause was designed partly to bolster the prior Privileges AND Immunities Clause, the Amendment was thus vulnerable to competing and confusing interpretations.

    1. As to the relationship between the EP Clause and the Civil Rights Act, the evidence is simply complex. While some of the enumerated rights, like right to sue, almost certainly relate to the protective functions of government, some others, like the right to acquire real property look alot more like a privilege of citizenship (and thus, I believe, secured under the Privileges or Immunities Clause). Still, whether the right “to make” as well as “to enforce” contracts could properly fall under the right of equal protection or as a privilege of citizenship or some combination thereof, is just a complex question.

    2. As to whether the privileges of U.S. citizenship must be in the Constitution, I think the problem with that interpretation is that it assumes that American citizenship must be a creature of the Constitution. Under that reading, from 1776 till 1781 (when the Articles was adopted) or until 1788 (when the ninth state ratified), there were citizens but no privileges thereof. Corfield suggests a different answer: the privileges of American citizenship existed at Independence.

    3. It is true that what I believe to have been the predominant Republican reading of Article IV in 1866 was inconsistent with Paul v. Virginia (1869). The strict interstate equality reading prevailed in the courts, but the Amendment was built on a different reading in Congress–and I suspect that this inconsistency proved fatal to the Privileges or Immunities Clause.

    Was the Privileges or Immunities Clause, then, a vain and idle enactment according to my reading of it? Well, at least some of Section 1–especially the Citizenship Clause–was merely declaratory or clarificatory. Still, the Privileges or Immunities Clause was clarificatory of at least two matters that were unclear: (1) insofar as Dred Scott said the Clause protected sojourners only, the Clause clarified that natives and residents of a state were secured in these rights; (2) insofar as the old Privileges AND Immunities Clause was arguably an interstate-equality guaranty only, the new Clause clarified otherwise, by using the formula that various antebellum authorities (including Ohio’s Supreme Court) had used to explain that the Clause secured certain absolute rights to citizens throughout the Union–not political rights, but certain general privileges. Moreover, Section 5 of the Amendment served to clarify a debate as to whether Congress had the authority to enforce the Privileges and Immunities Clause.

    So the Privileges or Immunities Clause was not a redundancy, but was clarificatory.

    4. You say that Taney identified the rights of travel, sojourn, real-property ownership, speech, arms, etc. as “privileges and immunities of state citizenship under the Comity Clause.” I don’t think those are his words–that’s the terminology of Justice Miller in Slaughter-House. Here are the terms he used, which suggests he was speaking of the privileges of national citizenship.

    (a) In discussing Legrand v. Darnall, which involved the validity of a real-estate transaction involving a freedman, Taney said the following: “For if the father of young Darnall had manumitted him in his lifetime, and sent him to reside in a State which recognised him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety.” That is “as a citizen of the United States,” he would be exempt from local racist laws that would prohibit his engaging in the transaction.

    (b) If citizens, the Constitution would “secure to [free blacks] rights, and privileges, and rank, in the new political body throughout the Union” an “exemption from the operation of the special laws” in order to enjoy “the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

    Note that both quotations refer to a right to exemption from local laws–not a right to be treated just as badly as local free blacks were treated.

    Taney did not refer to the “rights of state citizenship.” If anything, he sharply distinguished such rights from the privileges of national citizenship: “In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.”

    (d) Another use of this term, in Dred Scott, is in Nelson’s concurring opinion, which raised, but left unanswered, the question whether slaveholders enjoyed a right to travel with their slaves in the free states: “A question has been alluded to, on the argument, namely: the right of the master with his slave of transit into or through a free State, on business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common citizen of the republic under the Constitution of the United States. When that question arises, we shall be prepared to decide it.”

    As I point out in my article, before the Civil War, many prominent pro-slavery jurists argued that Article IV secured the privileges of U.S. citizenship, which included a right of sojourning citizens to exemption from local anti-slavery laws. I think this is the understanding to which Justice Nelson referred.

  8. Andrew Hyman says

    Thanks David. I’ll follow your numbering system.

    1. Like Professors Harrison, Green, and Currie, you raise the question whether the rights to make and to enforce contracts fall within the “protective” functions of government, and thus whether the Equal Protection Clause was (or is) applicable to those rights. That’s an interesting issue (I tend to view the word “protection” broadly rather than narrowly), but it seems somewhat beside the point here. You had argued that the EP Clause was not cited in the 1870s against state laws banning interracial marriage, and my point was that, actually, the EP Clause was indeed cited for that purpose, albeit indirectly rather than directly. See Justice White’s dissent in Runyon v. McCrary for examples of instances where the EP Clause was cited in support of the contracts provision of the 1866 CRA. And see the book “What comes naturally: miscegenation law and the making of race in America” by Peggy Pascoe, for examples of court decisions where the contracts provision of the 1866 CRA was cited against laws banning interracial marriage.

    2. Regarding whether the privileges of U.S. citizenship must be in the Constitution, I don’t think that notion assumes that American citizenship must be a creature of the Constitution. In Dred Scott, Taney wrote: “The powers of the [federal] Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself.” Curtis wrote: “[T]he privileges and immunities of general citizenship, derived from and guaranteed by the Constitution, are to be enjoyed by….citizens of the United States.” Whatever their assumptions may have been, they shared this common ground, and that is a good reason for thinking that the authors and ratifiers of the 14th Amendment shared this ground too (there are other good reasons which I won’t get into here).

    3. Sen. Howard introduced the 14th Anendment in the Senate, and he specifically said he wasn’t sure how SCOTUS would interpret the Comity Clause (which is a much more distinctive and thus less confusing name for the Privileges and Immunitues Clause). Howard wagered a guess, but deferred to SCOTUS on the issue. So let’s assume that Paul v. Virginia was correctly decided (I think it was), and construe the P or I Clause in that context. Accordingly, the P or I Clause is not merely a vain or idle enactment in my view, because (despite Slaughter-House) it incorporates enumerated rights against the states. That makes it a hugely important enactment.

    You say the Privileges or Immunities Clause also “clarified” that citizens of a state were secured in certain absolute rights beyond the rights in the Constitution. To the extent that “clarified” means “made clear”, I emphatically disagree. The P or I Clause very certainly does not refer to such other rights “clearly”. I agree with you, though, that Section 5 of the Amendment served to clarify a debate as to whether Congress had the authority to enforce the Privileges and Immunities Clause, but to me that simply means authority to enforce equal rights for sojourners plus authirity to enforce the right to sojourn. And I entirely agree with you that the Privileges or Immunities Clause was not a redundancy.

    4. I said Taney identified the rights of travel, sojourn, real-property ownership, speech, arms, etc. as “privileges and immunities of state citizenship under the Comity Clause.” Those are not his words, but rather are mine (I didn’t use quote marks). And my characterization seems to be confirmed by the extended quotes that you provide; Taney was referring to a black citizen of one state who travels to another state. But please note: I regard common ground between Taney and Curtis as being FAR more important and persuasive than anything said by Taney alone. Anyway, Taney said (emphasis added):

    “For if the father of young Darnall had manumitted him in his lifetime, and SENT HIM to reside in a State which recognised him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety.”

    If citizens, the Constitution would “secure to [free blacks] rights, and privileges, and rank, in the new political body throughout the Union” an “exemption from the operation of the special laws” in order to enjoy “the right to ENTER EVERY OTHER STATE whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

    Thus, both quotations refer to the same exemption from local laws for visiting citizens that was enjoyed by local citizens.

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