Volume 101 - Issue 5 Georgetown Law Journal

The Origins of the Privileges or Immunities Clause, Part III: Andrew Johnson and the Constitutional Referendum of 1866

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public discussion of the Fourteenth Amendment during the summer of 1866. The broadly publicized speech of Jacob Howard that introduced the Amendment to the Senate and to the country confirmed what observers of the Thirty-ninth Congress had long suspected: Congress proposed to require the states to protect the constitutionally enumerated rights of American citizens (through the Privileges or Immunities Clause) and the natural rights of all persons (through the Due Process and Equal Protection Clauses). In particular, states must respect the enumerated rights of American citizenship, from the substantive rights listed in the first eight Amendments to the equal protection principles declared by the Comity Clause. In response to what he viewed as a radical intrusion on the reserved powers of the states, President Johnson challenged the right of the rump Congress to propose constitutional reform and called on the country to make its opinion on the matter known in the fall election.
The third Part examines the dramatic and tragic events of the summer of 1866 that sharply focused political debate in the fall and clarified to the electorate what was at stake in the upcoming election. The state-sanctioned attack on black delegates meeting in convention in New Orleans on July 30, 1866, shocked northern voters and became a Republican clarion call for ratification of the Fourteenth Amendment. When President Johnson had his administration declare the proposed amendment unnecessary due to the existing protections in state constitutions, Republicans pointed to the massacre in New Orleans as a stark example of why states must be required to protect the constitutionally enumerated rights of speech and assembly.
The fourth and final Part of the Article discusses the aftermath of the Republican landslide and Johnson’s final attempt to defeat the Fourteenth Amendment. Working with a group of conservative advisors, Johnson drafted an alternate “fourteenth amendment” that deleted the Privileges or Immunities Clause and replaced it with a passive restatement of the Comity Clause. After months of political debate, it was clear the Privileges or Immunities Clause would force the states to protect rights that under the original Constitution had been left to state control. By erasing that Clause and replacing it with a restatement of the Comity Clause, Johnson’s version would do nothing more than require states to provide sojourning citizens equal access to a limited set of state-conferred rights. Johnson’s effort failed, but the attempt reflects the commonly accepted distinction between the Comity Clause of Article IV and the proposed Privileges or Immunities Clause—a critical point that cuts against scholarly attempts to equate the rights covered by both clauses. The Article closes with a discussion of remaining questions about the meaning of the Privileges or Immunities Clause and the need for a comprehensive theory of Section I of the Fourteenth Amendment.

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