A Lockean analysis of section one of the Fourteenth Amendment.(Privileges or Immunities Clause)

Despite--or perhaps because of--the great attention that scholars have devoted to it, the original meaning of Section One of the Fourteenth Amendment still remains a subject of intense debate. (1) While the Supreme Court has focused most closely on the Due Process and Equal Protection Clauses of the Amendment, a number of commentators recently have examined the much-neglected Privileges or Immunities Clause to gain insights into the intent of the drafters of Section One. (2) Despite these efforts, few have come up with a theory of Section One comprehensive enough to account for all three of these clauses and to delineate carefully the intended purpose of each. Often the roles ascribed to the clauses seem to overlap. For example, a substantive guarantee of fundamental rights is often attributed to both the Due Process and Privileges or Immunities Clauses and an anti-discrimination norm attributed to both the Privileges or Immunities and Equal Protection Clauses. Despite much effort, there remains a lack of agreement concerning the intended effects of these three clauses and their relation to one another.

One point of agreement, however, among many commentators studying the Amendment is that those responsible for its drafting and ratification were influenced strongly by natural law theories and that they aimed through the Amendment to guarantee citizens' freedom to exercise certain natural law rights. (3) Some have reached this conclusion after examining the influence of the antebellum writings of antislavery authors and their incorporation of natural law concepts. (4) Others point to the arguably more relevant evidence contained in the congressional debates on the proposed Amendment and its precursor, the Civil Rights Act of 1866. Whatever the source, however, it is fairly clear that natural law theory played some role in the framing of the Amendment.

As I have argued elsewhere, (5) a study of the natural law theories that were central to legal thought during the nineteenth century may lead to a greater understanding of the original meaning of the Fourteenth Amendment. In particular, this Article attempts to explain the three parts of Section One as an outgrowth of these theories, particularly those of John Locke. In studying Locke's Second Treatise on Civil Government, we see a strikingly similar partition contained in Locke's theory of the state as based on a compact among citizens. Locke's theory may be mapped onto the text of Section One of the Amendment in order to get some idea concerning the drafters' intent in utilizing the structure they chose. Although many commentators have puzzled over Section One's design, concluding that it was the result of poor or inartful drafting or that it was crafted in a haphazard way, analysis of the text in light of Locke's theories reveals a coherent structure that may have been apparent to those responsible for Section One's drafting and ratification. If this analysis is correct, it would explain the relatively sparse debate concerning the particular formulation that was enacted into law.

Following this line of reasoning, Part I first offers an overview of the history of the drafting of Section One. Notably, there was a lack of debate concerning that particular section when compared with the more controversial sections of the Amendment. The remainder of the Article examines the structure of Section One in light of the theory of the state as described by Locke. Part II briefly surveys Locke's influential theory of the state, including his model of government as based upon a compact among individuals emerging from a state of nature. Part III applies Locke's model to Section One of the Fourteenth Amendment, addressing each of the three clauses in turn. This Part first examines the Privileges or Immunities Clause of the Amendment, arguing that it was intended to provide a guarantee for certain fundamental capacities of citizenship thought to exist anterior to the formation of government--capacities flowing from either the absolute rights of individuals or the relative rights that arose as a result of their entering into a compact among themselves. Part III then considers the Due Process Clause of the Amendment, concluding that it most likely was intended to provide solely what today we might term a "procedural" guarantee, leaving the "substantive" work to the other two clauses. Finally, Part III considers the Equal Protection Clause, which the drafters and ratifiers most likely intended to provide a guarantee that the States would protect all citizens equally through the exercise of their police powers.

I. THE ORIGINS OF SECTION ONE

The historical materials concerning the drafting of Section One of the Fourteenth Amendment are somewhat sparse. The records of the Joint Committee on Reconstruction, responsible for drafting the Amendment, are not particularly detailed, (6) and although there was extensive debate concerning civil rights and the rights of the newly-freed slaves, there was little debate in Congress concerning the meaning of Section One. (7) Nonetheless, a number of commentators have attempted to discern what they can from the limited historical documentation in an attempt to better understand the drafters' intent.

A. The Thirteenth Amendment

Ratification of the Fourteenth Amendment must be viewed in conjunction with other efforts by Congress to protect the rights of free blacks and others. Before consideration of the Fourteenth Amendment began, Congress had already passed the Thirteenth Amendment, which banned slavery and involuntary servitude in the United States and afforded Congress the power to enforce the prohibition through "appropriate legislation." Some evidently viewed this Amendment as granting to Congress the power to protect certain fundamental rights. Senator Sherman, for example, argued that the Amendment "secures to every man within the United States liberty in its broadest terms" and could form the basis for giving "the freedmen of the southern States ample protection in all their natural rights." (8) Sherman reasoned:

 
   [U]nless a man may be free without the right to sue and be sued, to plead 
   and be impleaded, to acquire and hold property, and to testify in a court 
   of justice, then Congress has the power, by the express terms of this 
   Amendment, to secure all these rights.... Therefore the power is expressly 
   given to Congress to secure all their rights of freedom by appropriate 
   legislation. (9) 

According to Sherman, Congress passed the Amendment to remedy a defect in the Privileges and Immunities Clause of Article IV that had "always been a part of [the] fundamental law"-i.e., the lack of a grant of power to Congress to "enforce" the guarantee under that provision:

 
   Although here was a guarantee that the citizen of one State should have the 
   rights of a citizen in all the States, yet there was no express power 
   conferred upon Congress to secure this right, and no law has ever yet been 
   framed that secured the right of a citizen to travel wherever he chose 
   within the limits of the United States. To avoid this very difficulty, that 
   of a guarantee without a power to enforce it, this second section of the 
   constitutional amendment was adopted, which does give to Congress in clear 
   and express terms the right to secure, by appropriate legislation, to every 
   person within the United States, liberty. (10) 

Senator Sherman was not alone in his interpretation of the Amendment, however. For example, Senator Trumbull later expressed similar views:

 
   With the destruction of slavery necessarily follows the destruction of the 
   incidents to slavery. When slavery was abolished, slave codes in its 
   support were abolished also. 
 
   Those laws that prevented the colored man from going from home, that did 
   not allow him to buy or to sell, or to make contracts; that did not allow 
   him to own property; that did not allow him to enforce rights; that did not 
   allow him to be educated, were all badges of servitude made in the interest 
   of slavery and as a part of slavery. They never would have been thought of 
   or enacted anywhere but for slavery, and when slavery falls they fall also. 
   (11) 

Trumbull had "no doubt" that under the Amendment, Congress could "destroy all these discriminations in civil rights against the black man." (12) And he later stated that, under the Amendment, a "law that does not allow a colored person to hold property, does not allow him to teach, does not allow him to preach, is certainly a law in violation of the rights of a freeman, and being so may properly be declared void." (13)

Other members of Congress, however, maintained that free blacks were already receiving equal civil rights in at least some of the States and that in these "appropriate legislation" was not necessary to further the purposes of the Thirteenth Amendment. For example, Senator Guthrie represented that in Kentucky, free blacks enjoyed the same civil rights as whites:

 
   They have all these rights-the right to sue and be sued, the right to 
   contract and be contracted with, the same right to purchase and hold 
   property and transmit it by will or descent, the same rights of marriage, 
   as white people. There is some little modification in the existing laws 
   which our friends in the Legislature are endeavoring to procure; but 
   generally the free negroes have the same rights of person and property as 
   white persons. (14) 

Senator Davis echoed this view: "My honorable colleague gave a picture of what has always been the policy of Kentucky, and the laws of Kentucky, toward free negroes. With a few exceptions, they have all the civil rights that any white man has." (15)

Despite the expression of such sentiments, Congress eventually agreed that further changes in the Constitution were necessary to guarantee citizens' rights. In part, Congress was responding to the counter-argument that emancipation of the slave did not automatically confer upon him the rights of citizenship. Several members of Congress expressed this view. Senator Saulsbury, for example, stated:

 
   The [thirteenth] amendment itself was an amendment to abolish slavery. What 
   is slavery? That is the subject-matter of the amendment. Slavery is a 
   status, a condition; it is a state or situation where one man belongs to 
   another and is subject to his absolute control. The slave can own no 
   property of his own; he cannot work for himself; but he is subject to the 
   command of his owner. Cannot that status or condition be abolished without 
   attempting to confer on all former slaves all the civil or political rights 
   that white people have? Certainly. (16) 

Similarly, Senator Hendricks argued:

 
   This constitutional amendment broke asunder this private relation between 
   the master and his slave, and the slave then, so far as the right of the 
   master was concerned, became free; but did the slave, under the amendment, 
   acquire any other right than to be free from the control of his master? The 
   law of the State which authorized this relation is abrogated and annulled 
   by this provision of the Federal Constitution, but no new rights are 
   conferred upon the freedman. (17) 

And Representative Thornton stated that "[t]here are persons who never enjoyed" all "the civil rights and immunities sought to be secured" by the Civil Rights Bill and "yet they have been regarded as freemen." (18)

As I have argued elsewhere, (19) there were legal authorities--particularly those that relied heavily upon Roman law--that opponents could cite in support of such views. These authorities indicated that emancipation did not automatically confer with it the fundamental rights of citizenship. There could, then, be an intermediate status between that of slave and that of citizen. The plausibility of such arguments necessitated further Amendment of the Constitution.

B. The Bingham Proposal

The dispute over the proper scope of the Thirteenth Amendment, however, was merely one part of a larger debate. Prior to ratification of the Amendment, there was much discussion in Congress concerning Reconstruction and the rights to be afforded free blacks. Indeed, even before the proposed Fourteenth Amendment was introduced in Congress, there had been proposals to safeguard the fundamental rights of citizens. One such proposal was made by Representative John Bingham of Ohio. (20)

Bingham expressed his view before the House that there already existed a guarantee of fundamental rights within the Constitution that had been "utterly disregarded:"

 
   "The citizens of each State (being ipso facto citizens of the United 
   States) shall be entitled to all the privileges and immunities of citizens 
   (supplying the ellipsis `of the United States') in the several States." 
   This guarantee is of the privileges and immunities of citizens of the 
   United States in, not of, the several States. This guarantee of your 
   Constitution applies to every citizen of every State of the Union; there is 
   not a guarantee more sacred, and none more vital in that great instrument. 
   (21) 

These remarks were consistent with Bingham's earlier statements that the "equal protection" and "due process" guarantees of the Constitution protected the fundamental rights of citizens, (22) as did the Privileges and Immunities Clause of Article IV. (23) Bingham's proposed solution was to add a mechanism for enforcement of the constitutional guarantee:

 
   I propose, with the help of this Congress and of the American people, that 
   hereafter there shall not be any disregard of that essential guarantee of 
   your Constitution in any State of the Union. And how? By simply adding an 
   amendment to the Constitution to operate on all the States of this Union 
   alike, giving to Congress the power to pass all laws necessary and proper 
   to secure to all persons--which includes every citizen of every 
   State--their equal personal rights; and if the tribunals of South Carolina 
   will not respect the rights of the citizens of Massachusetts under the 
   Constitution of their common country, I desire to see the Federal judiciary 
   clothed with the power to take cognizance of the question, and assert those 
   rights by solemn judgment, inflicting upon the offenders such penalties as 
   Will compel a decent respect for this guarantee to all the citizens of 
   every state. (24) 

Such views were not anomalous. Other members of Congress also had pointed to the Privileges and Immunities Clause as a potential source for such a constitutional guarantee. (25)

Bingham's proposal to the Joint Committee on Reconstruction would have given Congress "power to make all laws necessary and proper to secure to all persons in every State within this Union equal protection in their rights of life, liberty and property." (26) After being referred to a subcommittee, the Bingham proposal was re-crafted to read as follows: "Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property." (27) The Bingham proposal was reported out of the Joint Committee on Reconstruction in the following form:

 
   The Congress shall have power to make all laws which shall be necessary and 
   proper to secure to the citizens of each State all privileges and 
   immunities of citizens in the several States and to all persons in the 
   several States equal protection in the rights of life, liberty and 
   property. (28) 

This proposal met with opposition based on the perception that it would seriously erode the federal structure by authorizing Congress to pass legislation that was more properly within the province of the State legislatures. For example, Representative Rogers stated that the proposal was "dangerous to the liberties of the people and the foundations of this Government" because it was "the embodiment of centralization and the disfranchisement of the States of those sacred and immutable State rights which were reserved to them by the consent of our fathers in our organic law." (29) Representative Hale stated that it was "in effect a provision under which all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden, may be repealed or abolished, and the law of Congress established instead." (30) And Representative Nicholson stated that "[t]he line of demarkation [sic] between State and Federal power, which has been already too much obscured by the great latitude of construction given of late to the several grants of power, is now to be entirely obliterated." (31) Indeed, modern commentators have noted that the proposal would have "create[d] a revolution in federalism." (32)

Nonetheless, Bingham defended his proposal, stating that it did not in reality alter any of the relations between the States and the federal government. He first observed that the language of the proposed Amendment was based on the Privileges and Immunities Clause of Article IV and the Due Process Clause of the Fifth Amendment. Accordingly, he argued that "the proposed Amendment does not impose upon any State of the Union, or any citizen of any State of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution." (33) Bingham referred to these guarantees as an "immortal bill of rights embodied in the Constitution." (34) Moreover, he made clear that the Amendment did not change the fact that the care of the property, life, and liberty of the citizen lay with the State governments. (35) Other members of Congress made similar arguments in support of the proposed Amendment. (36)

Nonetheless, members of Congress continued to object that the wording allowed for the potential exercise by Congress of the power to establish uniform legislation concerning the rights of person and property. Representative Hotchkiss, for example, expressed the general displeasure with such a provision:

 
   I understand the amendment as now proposed by its terms to authorize 
   Congress to establish uniform laws throughout the United States upon the 
   subject named, the protection of life, liberty, and property. I am 
   unwilling that Congress shall have any such power. Congress already has the 
   power to establish a uniform rule of naturalization and uniform laws upon 
   the subject of bankruptcy. That is as far as I am willing that Congress 
   shall go. The object of a Constitution is not only to confer power upon the 
   majority, but to restrict the power of the majority and to protect the 
   rights of the minority. It is not indulging in imagination to any great 
   stretch to suppose that we may have a Congress here who would establish 
   such rules in my State as I should be unwilling to be governed by. (37) 

Although Hotchkiss was prepared "to provide against a discrimination to the injury or exclusion of any class of citizens in any State from the privileges which other classes enjoy," (38) he was not willing to adopt language that could be construed to give Congress such general legislative powers. In particular, Hotchkiss raised the specter of some future Congress in effect overriding the Amendment through mere legislation. (39)

C. The Civil Rights Act

Despite these concerns, Congress again took up the issue of guaranteeing the fundamental rights of citizens-this time through legislation in the form of the Civil Rights Act of 1866. (40) That Act provided:

 
   That all persons born in the United States and not subject to any foreign 
   power, excluding Indians not taxed, are hereby declared to be citizens of 
   the United States; and such citizens, of every race and color, without 
   regard to any pervious condition of slavery or involuntary servitude, 
   except as a punishment for crime whereof the party shall have been duly 
   convicted, shall have the same right to make and enforce contracts, to sue, 
   be parties, and give evidence, to inherit, purchase, lease, sell, hold, and 
   convey real and personal property, and to full and equal benefit of all 
   laws and proceedings for the security of person and property, and shall be 
   subject to like punishment, pains, and penalties, and to none other, any 
   law, statute, ordinance, regulation, or custom, to the contrary 
   notwithstanding. (41) 

During debates on the bill, members of Congress identified the protected rights as "absolute rights" of citizens and as rights derivative from them. Representative Lawrence, for example, stated:

 
   Every citizen ... has the absolute right to live, the right of personal 
   security, personal liberty, and the right to acquire and enjoy property. 
   These are rights of citizenship. As necessary incidents of these absolute 
   rights, there are others, as the right to make and enforce contracts, to 
   purchase, hold, and enjoy property, and to share the benefit of laws for 
   the security of person and property. (42) 

According to Representative Lawrence, all citizens were entitled to exercise certain "privileges and immunities"--namely, "fundamental civil rights" (in contradistinction to "political rights" and "those dependent on local law"). (43) Similarly, Representative Thayer noted that the bill was designed to protect "the fundamental rights of citizenship; those rights which constitute the essence of freedom." (44) And Senator Trumbull stated that the "civil rights" referenced in the bill were the "fundamental rights belonging to every man as a free man, and which under the Constitution as it now exists we have a right to protect every man in." (45)

Finally, Representative Wilson gave a particularly thoughtful and lengthy exposition concerning the nature of the rights guaranteed under the bill. He stated that he understood "civil rights to be simply the absolute rights of individuals." (46) He quoted the following definition from Bouvier's Law Dictionary: "[c]ivil rights are those which have no relation to the establishment, support, or management of government." (47) This definition is consistent with an intention to guarantee those fundamental rights that were conceived of as existing anterior to the establishment of government, and Representative Wilson came to much the same conclusion: "[f]rom this it is easy to gather an understanding that civil rights are the natural rights of man; and these are the rights which this bill proposes to protect every citizen in the enjoyment of throughout the entire dominion of the Republic." (48) In fact, Wilson was even more explicit in identifying the nature of these fundamental rights:

 
   Before our Constitution was formed, the great fundamental rights which I 
   have mentioned, belonged to every person who became a member of our great 
   national family. No one surrendered a jot or title of these rights by 
   consenting to the formation of the Government.... And these several 
   departments of Government possess the power to enact, administer, and 
   enforce the laws "necessary and proper" to secure these rights which 
   existed anterior to the ordination of the Constitution. (49) 

Wilson argued that the bill in fact "establish[ed] no new right" but rather "merely afffirm[ed] existing law":

 
   We are following the Constitution. We are reducing to statute form the 
   spirit of the Constitution. We are establishing no new right, declaring no 
   new principle. It is not the object of this bill to establish new rights, 
   but to protect and enforce those which already belong to every citizen. 
   (50) 

Wilson pointed in particular to the Privileges and Immunities Clause of Article IV and its interpretation by Justice Bushrod Washington in Corfield v. Coryell (51) as the grounds for these rights, (52) concluding that if "the States would all practice the constitutional declaration" in that provision, "we might very well refrain from the enactment of this bill into a law." (53)

Nonetheless, members of Congress made clear that they did not intend to "mak[e] a general criminal code for the States" (54) and that the bill would "in no manner interfere[] with the municipal regulations of any State which protects all alike in their rights of person and property." (55) For example, Senator Trumbull, while recognizing the objection that the bill drew to the federal government powers that "properly belong" to the States, maintained that the bill would "have no operation in any State where the laws are equal, where all persons have the same civil rights without regard to color or race." (56)

Indeed, such statements were necessary in light of the objections of those who believed that through the bill Congress was attempting to "invade the States of this Union, and undertake to regulate the law applicable to their own citizens" (57) and that the bill "deprive[d] the State of its police power of government." (58) Senator Davis stated, for example, that the bill's design entailed "centralizing with a vengeance and by wholesale." (59) Representative Delano expressed his concern that the bill conferred new legislative powers upon Congress in derogation of the States:

 
   In my opinion, if we adopt the principle of this bill we declare in effect 
   that Congress has authority to go into the States and manage and legislate 
   with regard to all the personal rights of the citizen--rights of life, 
   liberty, and property. You render this Government no longer a Government of 
   limited powers; you concentrate and consolidate here an extent of authority 
   which will swallow up all or nearly all of the rights of the States with 
   respect to the property, the liberties, and the lives of its citizens. (60) 

Representative Kerr echoed the similar concern that "[t]he right of the State to regulate its own internal and domestic affairs, to select its own local policy, and make and administer its own laws for the protection and welfare of its own citizens, is denied." (61) Representative Latham argued that the constitutional structure barred such legislation "as the right to define and regulate the `civil rights or immunities' of the inhabitants in the several States is not among `the powers delegated to the United States by the Constitution nor prohibited by it to the States,' it is by the Tenth Amendment `reserved to the States respectively or to the people.'" (62) Thus, he concluded that Congress had "no right under the Constitution to interfere with the internal policy of the several States so as to define and regulate the `civil rights or immunities among the inhabitants' therein." (63) Senator Davis charged that "Congress by this bill [is] assuming precisely the power" to "establish a civil and penal code for all the States of the union" (64) and that the bill was "a greater stride toward the consolidation of all power by Congress than has ever before been taken or conceived." (65) He warned:

 
   Grant to Congress the principles and the amount of power embodied in this 
   bill and it cannot be successfully denied that it does possess all that 
   would be required to force upon the States their entire civil and criminal 
   bodies of law. 
 
   But the Constitution created no such a hydra-headed monster as a Congress 
   with such enormous power would be. (66) 

Finally, Senator Johnson concluded that the bill "strikes at all the reserved rights of the States." (67)

Further, members of Congress made clear that the bill, which guaranteed protection for "civil rights" by its very terms, did not extend protection to "political rights." As Senator Trumbull noted, the "bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man." (68) Indeed, there was an attempt to amend the bill to make even clearer that it was not intended to guarantee political rights, such as the right to vote, by adding after "civil rights" the caveat "except the right to vote in the States." (69) In response to this proposal, Senator Trumbull yet again stated: "I will only say in reference to that matter, that that is a political privilege, not a civil right. This bill relates to civil rights only, and I do not want to bring up the question of negro suffrage in the bill." (70) Senator Fessenden reiterated this position, observing that voting was not "such a very natural right that it must necessarily be conferred upon every free man," (71) as did Senator Wilson, who noted that "[p]articipation in the Government is one thing; the right to be protected in life, liberty, and estate is another thing." (72) Representative Wilson repeated these points in the House, (73) as did Representative Thayer, who observed that "nobody can successfully contend that a bill guarantying simply civil rights and immunities is a bill under which you could extend the right of suffrage, which is a political privilege and not a civil right." (74) Finally, Representative Lawrence similarly argued that the bill did not "affect any political right, as that of suffrage, the right to sit on juries, hold office, &c. This it leaves to the States, to be determined by each for itself." (75)

The bill passed Congress, but President Johnson vetoed it partly on the ground that Congress lacked authority to enact such legislation. (76) Many members of Congress, who believed that the Thirteenth Amendment did not provide Congress with the power to pass the bill, expressed this view as well. For example, Senator Saulsbury stated that "when the constitutional Amendment was under consideration in this Chamber, there was no friend of the measure who claimed or avowed that such a power as this existed in Congress under it." (77) Saulsbury reasoned as follows:

 
   A man may be a free man and not possess the same civil rights as other 
   men.... If you intended to bestow upon the freed slave all the rights of a 
   free citizen, you ought to have gone further in your constitutional 
   amendment, and provided that not only the status and condition of slavery 
   should not exist, but that there should be no inequality in civil rights. 
   (78) 

Senator Cowan similarly stated that the Amendment "was not intended to overturn this Government and to revolutionize all the laws of the various States everywhere." (79) Representative Kerr outlined the limited objective of the Amendment:

 
   Slavery was a domestic relation, not a public relation.... The severance of 
   that relation puts an end to slavery, and was the beneficent object of this 
   amendment. But the regulation of the ordinary civil relations of the negro 
   to the society in which he lives, by the enactment of laws of a local and 
   merely municipal character to control his contracts, and bestow upon him 
   civil privileges having no necessary connection with his personal freedom, 
   are wholly unauthorized by any warrant in any part of the Constitution. 
   (80) 

Representative Thornton observed that "[t]he sole object of that Amendment was to change the status of the slave to that of a freeman; and the only power conferred upon Congress by the second section of that Amendment is the power to enforce the freedom of those who have been thus emancipated." (81) Representative Latham similarly stated that in his opinion the bill went "far beyond anything contemplated or justified by [the Thirteenth] Amendment." (82) And Senator Davis reiterated his view that "Congress has no power whatever to pass this bill." (83)

Members of Congress also objected specifically that Congress had no power to make freed slaves citizens absent constitutional Amendment. Senator Johnson, for example, pointed to the Supreme Court's decision in the Dred Scott case (84) in support of this contention:

 
   If the Supreme Court decision [in Dred Scott] is a binding one and will be 
   followed in the future, this law which we are now about to pass will be 
   held of course to be of no avail, as far as it professes to define what 
   citizenship is, because it gives the rights of citizenship to all persons 
   without distinction of color, and of course embraces Africans or 
   descendants of Africans. 
 
   My own opinion, therefore, is that the object can only be safely and surely 
   attained by an amendment of the Constitution, and I have tried in vain to 
   form such a provision as would be free from objection. (85) 

Representative Rogers, too, pointed to the Supreme Court's decision:

 
   I affirm, without the fear of successful contradiction, that by the 
   decision of the highest court of the United States ... that negroes in this 
   country, whether free or slave, are not citizens or people of the United 
   States within the meaning of the words of the Constitution, and that 
   therefore no law of Congress or any State can extend to the negro race, in 
   the full sense of the term, the status of citizenship. (86) 

Representative Latham contended that many courts--not just the Supreme Court--had come to the same conclusion:

 
   The courts have uniformly decided that negroes are not citizens under the 
   Constitution. I know that gentlemen profess no respect for these decisions; 
   appeal to the tribunal of party politics, and tell us the people have 
   reversed them. I most respectfully submit, however, that while a legitimate 
   appeal lies from Congress to the people upon questions of governmental 
   policy, no such appeal lies from the Supreme Court upon questions of law. 
   If we are dissatisfied with one decision of the court, and the matter is 
   beyond the reach of ordinary legislation, our only legitimate remedy is to 
   go back into court and reverse the decision there.... Believing, as I do, 
   that the Constitution confers upon Congress no power to confer citizenship 
   except upon naturalized foreigners, I believe such rights conferred by this 
   act to be in violation of the Constitution, which is "the supreme law of 
   the land." (87) 

Finally, Representative Kerr observed that the citizenship question involved issues relating to the allocation of governmental powers between the federal and the State governments: "[i]t will hardly be claimed that this [the Privileges and Immunities Clause …