As the we prepare to reignite the debate on the meaning and implications of the Privileges or Immunities clause of the 14th Amendment, we find ourselves reaching back to the 19th century for guidance and interpretation.
From the Georgia Supreme Court, we have two interesting pre-Civil War precendents. In Nunn v. State, Chief Justice Joseph H. Lumpkin nullified a state-level handgun ban by interpreting the 2nd Amendment as an injunction against all governments, as opposed to a limitation only on Federal powers. Nunn v. State has gained quite a bit of notoriety over the last few years, and is likely to be cited in the arguments for McDonald v. Chicago.
Lumpkin subsequently revisited the issue in Campbell v. The State of Georgia. James Campbell was convicted of voluntary manslaughter based in part on the deathbed testimony of one Alfred Mays. Campbell’s attorneys argued that Mays’ testimony was inadmissible as evidence as its use would have contravened the 6th Amendment right of Campbell to be confronted by witnesses against him.
Dead men may tell tales, but they cannot address a jury. Prosecutors argued that the right to confront witnesses did not bind the State courts since the Bill of Rights did not enjoin the States. Though affirming the judgement of Judge Starnes based on other evidence, Justice Lumpkin took ample opportunity to refute the exclusionary argument.
While the amendments to the Constitution of the United States were primarily intended to be restrictive upon the powers of the General Government, and not the Legislatures of the several States–yet they are “declaratory” of great principles of civil liberty, which neither the national nor the State governments can infringe. (…) The right of a party accused of a crime, to meet the witnesses against him, face to face, is no new principle. It is coeval with the Common Law. Its recognition in the Constitution was intended for the two-fold purposes of giving it prominence and permanence.
Lumpkin was an avowed Christian who at once chaired bible societies for the Union and the Confederacy simultaneously, a good friend to Governor Troup (for which we have a county named), and a reluctant Secessionist who lost two sons in the Civil War. He was, however, a man of his time and place, and as such, came from Southern nobility, was a slave owner and seemed to have little respect for people he deemed to be savages.
Nonetheless, he could be a firebrand when civil rights were debated in the abstract. His writings illustrate a strong belief that the rights protected by the Constitution antecede any government, and that no matter how the Constitution were to be interpreted, its protections extended to citizens in relation to any government, at any time.
In regards to Barron v. Baltimore, which limited the scope of the Bill to interactions with the Federal government:
The question, I am aware, is still regarded as an unsettled one; but in this country, the weight of authority will be found in favor of the doctrine, that governments are not clothed with absolute and despotic power; but that independently of written constitutions, there are restrictions upon the legislative power, growing out of the nature of the civil compact and the natural rights of man. And that, when certain boundaries are overleaped and a law passed subversive of the great principles of republican liberty and natural justice–as for instance, taking away without cause, and for no offence, the liberty of the citizen–that it would become the imperative duty of the Courts, to pronounce such a Statute inoperative and void.
He was also a big fan of the complex-compound sentence.
When it can be demonstrated that an individual or a government has the right to do wrong, contrary to the old adage, that one person’s rights cannot be another person’s wrongs, then, and not before, will it be yielded that it is a part and parcel of the original jurisdiction of the State governments, reserved to them in the distribution of power under the Constitution, to enact laws, to deprive the citizen of the right to keep and bear arms (…) to enact laws requiring excessive bail, imposing oppressive and ruinous fines, and inflicting cruel and unusual punishments!
From such State rights, good Lord deliver us! I utterly repudiate them from the creed of my political faith!
He recites the entire Bill of Rights in the ellipsis, implying, as later scholars would, that the enumerated rights are absolute and not subject to venue or agency. By modern standards, Lumpkin’s views on the universality of natural rights might seem to be at odds with his acceptance of slavery, but at the time, they would not have been as disingenuous.
It’s highly unlikely that Lumpkin’s opinions in any way influenced the drafting of the 14th Amendment. Most of the input came from abolitionists (Curtis makes for good reading on the subject), and as Georgia was still completely unrepresented at the 39th Congressional Session, it’s unlikely his writings would have been considered.
As such, his work could be perceived as existing in a vacuum, but it provides an interesting window into the legal climate leading to incorporation.