John Payton on Your Constitutional Rights: “The only reason you have any of those rights is there’s a Fourteenth Amendment.”

Earlier this month Constitutional Accountability Center (CAC) partnered with the NAACP Legal Defense Fund (LDF), American Constitution Society (ACS), and the Mexican American Legal and Education Defense Fund (MALDEF) in hosting the event, The Road from Lincoln to Obama: the Constitution and the New Birth of Freedom. This midday panel at the National Press Club discussed the importance of reviving the Reconstruction Amendments under the new Obama Administration, and also highlighted the release of CAC’s report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, which explains (among other things) how the Privileges or Immunities Clause was incorrectly written out of the Constitution by the Supreme Court in the 19th-century Slaughterhouse cases.

During the question and answer portion of the panel discussion, John Payton, the President of NAACP LDF and one of the country’s most accomplished civil rights lawyers, discussed The Gem, the reasons for restoring the Privileges or Immunities Clause, and, more generally, the vital importance of the Fourteenth Amendment. His remarks succinctly and powerfully capture the thrust of the work of CAC’s Human and Civil Rights program, and we wanted to share them with you here:

Most of the people in the country would agree with the list of things that Doug [Kendall, CAC’s President] read off, thinking “Gee, we have the following rights…”

The only reason you have any of those rights is there’s a Fourteenth Amendment. You can’t find them in the Constitution as drafted. You just can’t find them. You can see that, “Gee, the federal government can’t do these things…” but that’s not the question. The question is whether any government can do those things.

And the only way we have those things we now see as national rights is that the Fourteenth Amendment has “incorporated” (that’s the phrasing that all the lawyers now use) those rights.

The question that Doug raises is: Was that a cramped way of getting to incorporation — through the due process clause, and substantive due process? Wasn’t it drafted with a much more open door, which is Privileges or Immunities?

If you read the history, these rights were supposed to come in as Privileges or Immunities of being a citizen of the United States. The reason we are stuck in this funny hole, is [because cases like Slaughterhouse did] what was required if you want to destroy Reconstruction.

We’re way past that. We’re way past that. The historians have actually figured it out. They write the right history now. But we’re stuck with these ridiculous cases, where we have a parade of cases that say things that, when you read them, and you read the context, you want to start laughing. But they’re still precedent.

Payton was referring to recent and widely-acclaimed scholarship regarding the drafting and ratification history of the Fourteenth Amendment, which demonstrates that the Amendment’s framers intended for the Privileges or Immunities Clause to be the Constitution’s main guarantor of fundamental rights and liberties. For more on the Privileges or Immunities Clause, download our report here. To watch the entire Road from Lincoln to Obama event click here.

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