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The Constitutional Referendum Of 1866: Andrew Johnson And The Original Meaning Of The Privileges Or Immunities Clause, Kurt T. Lash

Kurt T. Lash

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 …

The Origins Of The Privileges Or Immunities Clause, Part Ii: Mr. Bingham's Epiphany, Kurt T. Lash

Kurt T. Lash

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

This article, the second in a three-part investigation of the origins of the …

Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash

Kurt T. Lash

Although most scholars and courts assume that the Eleventh Amendment emerged from a sudden “shocked” public reaction to the Supreme Court’s decision in Chisholm v. Georgia, this article contends that the modern emphasis on Chisholm as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of …

The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And "Expressly" Delegated Power, Kurt T. Lash

Kurt T. Lash

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to …