hans linde and privileges and immunities clause and fourteenth amendment and james byrnes

Hans Linde, the 81 year-old Distinguished Scholar in Residence at my law school, stopped by my office again the other day. Rather than taking a seat, he stood in the door for more than an hour and started me on a conversation that once again showed me how little I knew.

Getting Started

But first, Hans started with what I knew and he didn't. He had been reading the Robert Graves' book on Jesus and was interested in Graves' more mystical portrait of Jesus or at least Graves' depiction of the potentially shadowy and non-conventional religious life of Jesus and Mary Magdalene. Had I read the book?, he wanted to know. I confessed I had not, but I was able to "fit" Graves into the history of classical scholarship for him as well as explain the dual tuggings of the "Apollinian" and "Dionysian" longings in classical Greek culture which, when combined with the effloresence of Eastern religious cults in Rome and its environs beginning in the 1st century BCE, contributed to a melange of religious options that were available to a Mary Magdalene or others in the first century.

Then he asked me other questions of early Christian theology--did the early Christians fight against each other really for ideological reasons, or were other things at stake? His question gave me a chance to pull out the dusty mental files of 4th century knowledge regarding the Alexandrian impulse toward Arianism and the Antiochene desire for Orthodoxy. On and on we went. Finally, as if traversing the centuries in order was a prerequisite for our having the privilege of talking about the 19th and 20th centuries, Hans began to ask me questions I couldn't answer but he could. Here is how that worked.

Enter the Legal Questions

We switched into the "legal" part of the conversation when he posed the question to me of whether I knew if members the Senate Judiciary Committee, in questioning Judge John Roberts, not only asked him about the results of certain Supreme Court decisions but the grounds on which various cases were decided. I had happened to read some of the hearing transcripts, and told him that indeed Senator Kennedy had asked Roberts both about the decision in Brown v. Board of Education and the reasoning. But, I told Hans, Roberts had cleverly avoided commenting on the reasoning which, as I have argued elsewhere, would have possibly put him in a sort of bind.

Hans nodded and probed me with a question concerning the Court's legal reasoning whose precision took me quite aback: "Do you know, Bill, how the Court's unwillingness to abandon a Commerce Clause analysis actually hindered them from blowing fresh meaning into the 14th Amendment Privileges & Immunities clause?" I thought to myself what a wonderful question this was, and one that probably could only have been asked by a former professor of constitutional law who had clerked for Justice Douglas on the Supreme Court in the early 1950s. I told Hans I didn't know. In the remainder of this essay and the next, I would like to show why this is such a wonderful question, and how Hans helped me see the issue clearly.

What Hans Was Driving At

The problem Hans was getting at, and which he felt could have been usefully probed in the Roberts hearing, was what happened to the Privileges & Immunities clause of the 14th Amendment. Just for us amateurs, it provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." Hans began to speak,

"Of course everyone knows (!) that Justice Miller took away almost all meaning from this term in the Slaughterhouse Cases of the early 1870s. But what people don't know is the way that the Court not only could have reversed this but was also inclined to do so in 1941. In that year the Court had an actual majority to restore some of the meaning intended by Congress when they passed the 14th Amendment in 1868. But, Jimmy Byrnes [referring to James Byrnes of South Carolina, whom FDR appointed to the Court in 1941 only a few months before the case was heard and who left the Court within one year] wrote a pedestrian opinion in which he affirmed an action based on the Commerce Clause when he and everyone else ought to have done so on Privileges & Immunities ("P & I") Grounds. And, because of this, we have lost the P & I clause for 65 more years."

Just a reality check for you, the reader. Are you still with Hans? The next essay tries to bring you up to speed ever so briefly by looking at this case, Edwards v. California, and one other case from 1867, which can profitably be understood from the perspective of those wanting to restore meaning to the P & I clause.

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