Iowa Constitution's Article I, Section 6: Privileges and Immunities Clause, Lecture notes of Law

Download Iowa Constitution's Article I, Section 6: Privileges and Immunities Clause and more Lecture notes Law in PDF only on Docsity! 147 EXPLORING THE ORIGINAL MEANING OF ARTICLE I, SECTION 6 OF THE IOWA CONSTITUTION Edward M. Mansfield* & Conner L. Wasson** ABSTRACT Article I, section 6 of the Iowa constitution provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Through the last hundred years, the Iowa Supreme Court’s interpretation of this provision has evolved so that it now serves as a state counterpart to the federal Equal Protection Clause. This Article seeks to develop an original understanding of article I, section 6 by exploring the mid- nineteenth-century historical record, contemporary case law, and similar constitutional provisions enacted by other states in the same time period. TABLE OF CONTENTS I. Introduction ........................................................................................... 148 II. The Genesis of Article I, Section 6 ..................................................... 150 A. Origins of the Uniformity Clause ................................................. 152 B. Origins of the Privileges and Immunities Clause ....................... 155 C. The Uniformity Provision in Article III ...................................... 158 D. The Exclusive Privilege Clause in Article VIII .......................... 160 E. The Kinds of Government Actions to Which Article I, Section 6 Applies ........................................................... 162 III. Initial Interpretations of Article I, Section 6 by Iowa Courts .......... 163 A. Early Interpretations of the Uniformity Clause ......................... 163 B. The Privileges and Immunities Clause ........................................ 173 IV. Similar Language in Other State Constitutions ................................. 177 * Justice, Iowa Supreme Court; J.D., Yale University, 1982; B.A., Harvard University, 1978. ** Associate Attorney, Ahlers & Cooney, P.C.; J.D., Drake University Law School, 2014; B.S., Northern Illinois University, 2010. The Authors would like to thank Drake University Law School’s Supreme Court Scholar program, which gave them the opportunity to work together on the project that led to this Article. 148 Drake Law Review [Vol. 66 A. Other States with Similar Uniformity Clauses ........................... 178 B. Other States with Similar Privileges and Immunities Clauses ............................................................................................ 183 V. Iowa’s Landmark Civil Rights Decisions ........................................... 187 VI. The Subsequent Incorporation of Federal Equal Protection Clause Analysis into Article I, Section 6 Interpretation ............................... 191 A. Parallelism, 1885–1906 ................................................................... 191 B. Convergence, 1906–1979 ............................................................... 195 C. Federal Equal Protection Analysis as the Starting Point, 1980–Present ................................................................................... 197 VII. Conclusion ............................................................................................. 201 I. INTRODUCTION “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”1 So reads article I, section 6 of the Iowa constitution. The Iowa Supreme Court has characterized this provision as a state counterpart to the federal Equal Protection Clause.2 Article I, section 6, however, predates the Equal Protection Clause. It was enacted as part of Iowa’s 1857 constitution, and remains in that constitution today.3 Article I, section 6 is an amalgam. The first clause of article I, section 6—“[a]ll laws of a general nature shall have a uniform operation”—speaks 1. IOWA CONST. art. I, § 6. 2. See, e.g., Nguyen v. State, 878 N.W.2d 744, 758 (Iowa 2016) (discussing “the equal protection clause of the Iowa Constitution” and “the clause’s federal counterpart”); Qwest Corp. v. Iowa State Bd. of Tax Review, 829 N.W.2d 550, 557 n.4, 558 (Iowa 2013) (referring to article I, section 6 as “our equal protection clause” and to the Equal Protection clause of the Fourteenth Amendment as “its federal counterpart”); NextEra Energy Res. v. Iowa Utils. Bd., 815 N.W.2d 30, 45 (Iowa 2012) (describing article I, section 6 as “[t]he Iowa Constitution’s counterpart to the federal [Equal Protection] clause”); Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998) (referring to article I, section 6 as “the counterpart to the federal Equal Protection Clause”). 3. IOWA CONST. art. I, § 6. Iowa is currently governed by an 1857 constitution and subsequent amendments thereto. That constitution was preceded by an 1844 constitution that did not achieve ratification, and an 1846 constitution that was in effect for 11 years. See infra Part II. 2018] Article I, Section 6 of Iowa’s Constitution 151 shall be entitled to all the rights, privileges and immunities heretofore granted and secured to the Territory of Wisconsin and to its inhabitants.”15 Notably, this language conferred on Iowa residents not only “privileges and immunities”—a topic later encompassed within article I, section 6—but certain “rights” as well.16 We will explore in this Article whether Iowa’s inhabitants believed there to be a difference between the two. Elsewhere in the Act, Iowans were given “all . . . the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States northwest of the river Ohio” by the 1787 Northwest Ordinance, while remaining “subject to all the conditions and restrictions and prohibitions in said articles of compact imposed upon the people of the said Territory.”17 Thus, territorial Iowans received from the beginning certain local rights and privileges, particularly those guaranteed in the 1787 Northwest Ordinance.18 Territorial status was understood to be temporary, and with a steady growth in population and prosperity, the gears of statehood began to grind in Iowa.19 The first version of an Iowa constitution was drafted within 26 days in 1844.20 This proposed constitution would never be ratified because of disputes relating to the boundaries of the new state.21 However, it serves as 15. § 12, 5 Stat. at 239. 16. See id.; IOWA CONST. art. I, § 6. 17. An Act Establishing the Territorial Government of Wisconsin, ch. 54, § 12, 5 Stat. 10, 15 (1836). 18. See An Ordinance for the Government of the Territory of the United States North-west of the River Ohio, art. 2, 1 Stat. 51 (1787), reenacted as Act of Aug. 7, 1789, ch. 8, 1 Stat. 50 (including rights of habeas corpus, judicial proceedings according to the common law, and the right not to be deprived of liberty or property without the judgment of one’s peers). 19. SHAMBAUGH, HISTORY OF THE CONSTITUTIONS, supra note 12, at 145–47. 20. Id. at 227. 21. Id. at 235. Every set of proposed boundaries for Iowa included the Mississippi River on the east and the Missouri border on the south. Id. at 236–41. The open question was what the northern and western boundaries would be. Id. The original 1844 constitution contained what are commonly known as the Lucas boundaries (named after Iowa’s Territorial Governor Robert Lucas). Id. at 235. These would have excluded some of present-day northwest Iowa but included much of present-day southeast Minnesota. Id. at 236. Congress rejected these boundaries in favor of the so-called Nicollet boundaries. Id. at 255. The Nicollet boundaries would have made Iowa longer but narrower than it is today, with a straight-line northern boundary extending well into present-day Minnesota perpendicular to a straight-line western boundary excluding approximately 32 of Iowa’s present-day western counties. See id. at 246–47. Many Iowans believed the Nicollet boundaries would fragment the natural economic boundaries of the state. Id. at 257. For this reason, Iowans voted down the 1844 constitution (as revised 152 Drake Law Review [Vol. 66 a starting point for tracing the development of present day article I, section 6. A. Origins of the Uniformity Clause We tend not to read the uniformity clause and the privileges and immunities clause separately today. But they may have had distinct meanings at the time they were written into Iowa’s constitution. One piece of evidence supporting that conclusion is that the two clauses entered Iowa’s constitution at different times. The 1844 precursor to the present-day article I, section 6 of the Iowa constitution simply stated, “All laws of a general nature shall have a uniform operation.”22 Thus, it contained only the uniformity clause. The 1844 constitution had no equivalent to the second clause of article I, section 6 respecting privileges and immunities.23 Unfortunately, the framers of the 1844 constitution left behind few historical records to help explain what the uniformity clause meant to them.24 “Fragments” of the debates have survived, but they are more in the nature of a journal or minutes than a verbatim transcript.25 They reflect some discussion on the bill of rights,26 but none on what would become the uniformity clause.27 Furthermore, while several later constitutions in other states contained versions of the uniformity clause,28 the Authors of this Article have been unable to find any example of such a clause prior to the 1844 Iowa constitution.29 Parsing the uniformity clause today, it appears to be an enigma. A nonlawyer might even regard the clause as stating a tautology. If the law is by Congress to include the Nicollet boundaries). Id. at 265–67. 22. IOWA CONST. art. II, § 5 (1844). 23. Compare IOWA CONST. art. I, § 6, with IOWA CONST. art. II, § 5 (1844). 24. See BENJAMIN F. SHAMBAUGH, FRAGMENTS OF THE CONSTITUTIONAL DEBATES OF 1844 AND 1846, at iii (1900). 25. See id. passim. 26. See id. at 34–43, 159–62 (summarizing discussions at the 1844 convention concerning the bill of rights). 27. See id. passim (lacking discussion of the uniformity clause). 28. See infra Part IV.A. 29. Notably, the U.S. Constitution conferred on Congress the power “[t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. CONST. art. I, § 8. The word “uniform” in this context seems to mean geographically uniform. See THE FEDERALIST NO. 42 (James Madison) (explaining that this clause was intended to eliminate state-by-state differences in naturalization and bankruptcy laws). 2018] Article I, Section 6 of Iowa’s Constitution 153 general, it must have a uniform operation. But if it is not general, it need not. Yet how does one define a general law? Isn’t it simply a law that has a uniform operation? After the 1844 constitution failed to achieve ratification despite submission (and even resubmission) to the voters, a second convention was held and a new constitution was born.30 The 1846 constitution delineated Iowa’s present-day boundaries while adhering to the same overall structure and content as the 1844 constitution.31 Once again, the uniformity clause found its home in the bill of rights, without any substantive alteration from 1844.32 As before, there was no privileges and immunities clause.33 Voters ratified the 1846 constitution, and Iowa became a state that year.34 Yet some citizens were dissatisfied with the 1846 constitution.35 The chief concern related to the constitution’s severe restrictions on banking.36 Another constitutional convention was held, from January through March 1857, and a third constitution emerged.37 The 1857 version of the Iowa constitution retained an organization similar to that of the 1844 and 1846 30. IOWA CONST. (1846); SHAMBAUGH, HISTORY OF THE CONSTITUTIONS, supra note 12, at 299. 31. Compare IOWA CONST. art. I (1846), with IOWA CONST. art. I (1844); see also SHAMBAUGH, HISTORY OF THE CONSTITUTIONS, supra note 12, at 299–300. 32. Compare IOWA CONST. art. II, § 6 (1846), with IOWA CONST. art. II, § 5 (1844). 33. Compare IOWA CONST. art. II, § 6 (1846), with IOWA CONST. art. II, § 5 (1844). 34. SHAMBAUGH, HISTORY OF THE CONSTITUTIONS, supra note 12, at 324–27. 35. Id. at 330. 36. Id. at 331–35. Article IX, section 1 of the 1846 Iowa constitution provided, “The General Assembly of this State shall prohibit, by law, any person or persons, association, company or corporation, from exercising the privileges of banking . . . .” Article IX, section 2 expressly prohibited the creation of “corporations with banking privileges.” IOWA CONST. art. IX, § 1 (1846). These provisions elicited a negative response from those who felt they impeded the growth of commerce. I cannot avoid a feeling of deep concern at the opinion expressed by some portion of our fellow citizens in favor of amending the Constitution of our State in such a manner as to authorize the establishment of Banks—of special acts of incorporation for pecuniary profit, and of contracting State debts without limitations of the General Assembly. Stephen Hempstead, First Biennial Message: December 7, 1852, in MESSAGES AND PROCLAMATIONS OF THE GOVERNORS OF IOWA 429, 444 (Benjamin F. Shambaugh ed., 1903). 37. SHAMBAUGH, HISTORY OF THE CONSTITUTIONS, supra note 12, at 335–36. 156 Drake Law Review [Vol. 66 class of citizens.51 At this point, the convention agreed to the amendment. 52 As legislative history goes, this is reasonably informative. The sponsor of the amendment was asked what its purpose was, he answered, and immediately thereafter the amendment was agreed to.53 The key words in Mr. Edwards’s explanation are, perhaps, the final ones: “[T]o prevent the Legislature from granting exclusive privileges to any class of citizens.”54 One other kernel of legislative history concerning the privileges and immunities clause surfaced earlier in the debates when a proposed amendment was reported by the Bill of Rights Committee.55 This amendment would have added to article I, section 2 (not article I, section 6) a prohibition on the granting of privileges and immunities that could not be subsequently removed by the General Assembly.56 It stated, “And no privileges or immunities shall ever be granted that may not be altered, revoked or repealed, by the General Assembly.”57 In support of this amendment, Mr. Ells, chairman of the committee, remarked, “These words, ‘privileges and immunities’ are very broad in their signification. I hold that they cover all subjects of legislation that confer power upon any man, or any set of men.”58 He went on to add, “Taking this view of the subject, it necessarily follows, that the General Assembly have the right to repeal all grants of power, (whether provided for in the Constitution or not) . . . .”59 Although Ells thus indicated that privileges and immunities by definition could be repealed, he continued, “Notwithstanding this, I desire to have the power of repeal distinctly expressed in the Constitution.”60 Helpfully, “[f]or the benefit of the members of the Convention,” Mr. Ells offered the following definition of “privilege” from a contemporary edition of Webster’s Dictionary: 51. Id. at 200–01. 52. Id. at 201. 53. Id. at 200–01. 54. Id. at 201. 55. Id. at 100–01. 56. Id. at 101. 57. Id. 58. Id. 59. Id. 60. Id. 2018] Article I, Section 6 of Iowa’s Constitution 157 A particular and peculiar benefit or advantage enjoyed by a person, company or society, beyond the common advantages of other citizens. A privilege may be a particular right granted by law or held by custom, or it may be an exemption from some burden to which others are subject. The nobles of Great Britain have the privilege of being triable by their peers only. Members of Parliament and of our Legislature have the privilege of exemption from arrests in certain cases. The powers of a banking company are privileges granted by the Legislature.61 The committee’s amendment did not pass.62 This may have been because of Mr. Ells’s lackluster salesmanship. At the same time Mr. Ells offered the amendment, he was also telling his fellow delegates it was, in effect, superfluous.63 In any event, these passages from the debates suggest Iowa’s constitutional framers may have understood “privileges and immunities” as referring to a special status given by the grace of the legislature (or perhaps by tradition) to a relatively small group of citizens, in contrast with “rights” that were part and parcel of citizenship itself.64 So viewed, the privileges and immunities clause of article I, section 6 would have served a majoritarian or populist end, rather than a goal of protecting minorities. The clause would have been intended to prevent the powerful from getting special treatment rather than to prevent the disfavored from being trampled on. A further clue to the original meaning of the privileges and immunities clause may be the simple fact it was offered as an amendment to the previous version of article I, section 6 that contained only the uniformity clause. One can logically infer the delegates thought they were adding something new to the Constitution; otherwise, Why bother?65 61. Id. at 104 (quoting Webster’s Dictionary). 62. Id. at 114. 63. See id. at 104. 64. See id. 65. See Shirt v. Hazeltine, 700 N.W.2d 746, 753 n.5 (S.D. 2005) (citation omitted) (noting a frequent presumption that a constitutional amendment changed the law, while acknowledging an amendment may simply clarify the law). Further, although it is hazardous to draw inferences from failed amendments, it may be significant that the Bill of Rights Committee (based on a motion by Mr. Clarke of Henry County) had been “requested” by the delegates to report language which would have stated the following, or its equivalent: “[N]o sect, class, or party of men, shall, as such sect, class, or party, be cut off, or debarred from the enjoyment of all the political and legal rights and privileges to which the citizens of the State are entitled.” 1 THE DEBATES, supra note 40, at 80. Clarke’s resolution was agreed to, which might allow the conclusion that the delegates— 158 Drake Law Review [Vol. 66 C. The Uniformity Provision in Article III In addition to appending the privileges and immunities clause to the prior uniformity clause, the delegates to the 1857 convention also wrote a separate uniformity provision into the third article of the constitution relating to the legislative department.66 As we have noted, article I, section 6 seemingly applies only to “general” laws.67 If a law is of a general nature, article I, section 6 requires it to apply uniformly. But if the law is of a special nature, article I, section 6 would not affect it. The delegates may have put some starch into the uniformity requirement through the addition of article III, section 30 to the 1857 constitution. This section was reported by the Committee on the Legislative Department on the 25th day68 and provides: The General Assembly shall not pass local or special laws in the following cases: For the assessment and collection of taxes for state, county, or road purposes; For laying out, opening, and working roads or highways; For changing the names of persons; For the incorporation of cities and towns; For vacating roads, town plats, streets, alleys, or public squares; For locating or changing county seats. In all the cases above enumerated, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state; and no law changing the boundary lines of any county shall have effect until upon being submitted to the people of the counties affected by the change, at a general election, it shall be approved by a majority of the votes in each county, cast for and against it.69 at least at that point—did not believe his language was duplicative. See id. As it turned out, the Committee did not subsequently report any such provision. See id. at 98–103. Conceivably, this could reflect a conscious decision not to incorporate the principle of equal political and legal rights in the bill of rights. Alternatively, it may simply mean that the committee after deliberation felt the principle was covered elsewhere in the constitution. 66. See IOWA CONST. art. III, § 30. 67. IOWA CONST. art. I, § 6; supra Part II.A. 68. 1 THE DEBATES, supra note 40, at 531. 69. IOWA CONST. art. III, § 30. The language in article III, section 30 relating to 2018] Article I, Section 6 of Iowa’s Constitution 161 In a separate article on corporations, the delegates to the 1857 convention inserted the following provision: Subject to the provisions of this article, the general assembly shall have power to amend or repeal all laws for the organization or creation of corporations, or granting of special or exclusive privileges or immunities, by a vote of two thirds of each branch of the general assembly; and no exclusive privileges, except as in this article provided, shall ever be granted.90 Taken literally, the foregoing language seems to indicate that the legislature can grant special or exclusive privileges or immunities, since it provides a mechanism for repealing them.91 Nonetheless, it does limit exclusive privileges to those “in this article provided.”92 What does this language mean, and how does it dovetail with the privileges and immunities clause? Article VIII, section 12 is part of the article on corporations, and was reported by the Committee on Incorporations.93 The debates strongly suggest that privileges and immunities in this context meant commercial privileges and immunities conferred by the legislature, such as the right to “form a partnership to do business under a common name.”94 Still, this leaves open the question of how one should reconcile the privileges and immunities clause—which requires privileges and immunities to belong equally to all citizens—with article VIII, section 12—which seemingly allows for special privileges and immunities (although also enabling them to be revoked).95 One possible way to harmonize the two clauses is to read the privileges and immunities clause as permitting the legislature to authorize franchises that are insulated from competition, so long as all qualified comers can vie for the opportunity.96 Alternatively, one might read article VIII, section 12 as devoted to privileges and immunities in the fields of banking and corporations, and article I, section 6 as relating to privileges and immunities more generally.97 90. IOWA CONST. art. VIII, § 12. 91. See id. 92. Id. 93. 1 THE DEBATES, supra note 40, at 289, 407. 94. Id. at 408. 95. Compare IOWA CONST. art. I, § 6, with IOWA CONST. art VIII, § 12. 96. See IOWA CONST. art. I, § 6. 97. See IOWA CONST. art. VIII, § 12. In Des Moines Street Railway Co. v. Des 162 Drake Law Review [Vol. 66 E. The Kinds of Government Actions to Which Article I, Section 6 Applies One other point should be made about the text and origins of article I, section 6. The uniformity clause, by its terms, applies to “all laws,” while the privileges and immunities clause applies to “the General Assembly.”98 This raises the question whether article I, section 6 would have any bearing on local ordinances or administrative actions.99 Article III, section 30 likewise refers only to “laws” and to “the General Assembly.”100 So, too, does article VIII, section 12.101 To the extent the uniformity clause was viewed at the time as a bulwark against geographic discrimination, it may have made sense that its terms applied only to the legislature. Usually, it takes an entity with statewide authority to discriminate among parts of a state.102 Likewise, the legislature Moines Broad-Gauge Street Railway Co., the court later said that article VIII, section 12 did not apply to an exclusive street-railway franchise obtained by an individual and later assigned to a corporation. 33 N.W. 610, 615 (Iowa 1887). The court said, “The article limits, to some extent, the powers and rights which a body of men might claim as a corporation. We do not think that it was intended to limit the powers and rights of individuals, except in their relation to a corporation.” Id. at 615. Then, in Iowa Telephone Co. v. City of Keokuk, a federal district court clarified this somewhat vague statement to mean that article VIII, section 12 only applies to exclusive privileges in a corporate charter, not those otherwise granted to a corporation. 226 F. 82, 92–94 (S.D. Iowa 1915). The Iowa Supreme Court accepted this clarification in Northwestern Bell Telephone Co. v. Iowa Utilities Bd., 477 N.W.2d 678, 686 (Iowa 1991). 98. Compare IOWA CONST. art. I, § 6, with IOWA CONST. art VIII, § 12. 99. See IOWA CONST. art. I, § 6. 100. IOWA CONST. art. III, § 30. 101. IOWA CONST. art. VIII, § 12. 102. An early case may have implicitly recognized this point. Phul v. Hammer, 29 Iowa 222, 223–24 (1870). In Phul v. Hammer, the Iowa Supreme Court considered a challenge under article III, section 30 to legislation that allowed cities to amend their charters, thus resulting in a divergence of those charters from city to city. Id. at 223. The challenger’s argument was “a stream cannot rise higher than its source,” and if the legislature could not pass a special law for the incorporation of a given city, nor could it give that city the authority to customize its charter. Id. The court rejected this contention: The legislature does possess the power to amend the charters, but it can only exercise it by the enactment of general laws equally applicable to all cities. It is quite true, however, that by the enactment of that section, which is a general law of uniform operation, there may result a consequence, to wit, a want of uniformity of city charters, which was one of the evils that the particular clause of the constitution under consideration was designed to remedy. But the 2018] Article I, Section 6 of Iowa’s Constitution 163 would probably have been in the best position to grant special privileges, as defined to the delegates by Mr. Ells.103 The 1857 constitution was narrowly approved in a popular vote, 40,311 to 38,681, in August of that year.104 It has governed Iowa for over 150 years since. Amendments have occurred periodically, but the text of article I, section 6—and for that matter, the texts of article III, section 3 and article VIII, section 12—remain today in their 1857 form.105 III. INITIAL INTERPRETATIONS OF ARTICLE I, SECTION 6 BY IOWA COURTS Early judicial interpretations provide another window into the original understanding of article I, section 6. To discern what the section meant to most people in 1857, we can examine what contemporary courts thought of it.106 A. Early Interpretations of the Uniformity Clause Although the uniformity clause has always been part of Iowa’s constitution, dating back to the grant of statehood in 1846,107 the clause was discussed only once in a reported opinion before 1857.108 The case in question, Trimble v. State (1850), arose out of Iowa’s longstanding practice clause itself is not, nor can it by any fair construction be made to be, so farreaching as to prevent such consequences. Id. at 223–24; but see Town of Pacific Junction v. Dyar, 19 N.W. 862, 863 (Iowa 1884) (“A law of Iowa discriminating in favor of resident merchants of Pacific Junction, and against other resident merchants of Iowa, would be in conflict with article 1, § 6, of the constitution of Iowa, which provides that laws of a general nature shall have a uniform operation. The town council of Pacific Junction derives power from the legislature of the state, and cannot do what the legislature could not do.”); Grant v. City of Davenport, 36 Iowa 396, 404 (1873), discussed in infra Part III. 103. See 1 THE DEBATES, supra note 40, at 104. 104. HISTORICAL TABLES OF THE IOWA LEGISLATURE: 1857 IOWA CONSTITUTIONAL CONVENTION MEMBERS 1 (1857), https://www.legis.iowa.gov/ docs/publications/BHT/860936.pdf. 105. See IOWA CONST. art. I, § 6; id. art. III, § 3; id. art. VIII, § 12. 106. See King v. State, 818 N.W.2d 1, 14 (Iowa 2012) (using as an interpretive tool High Sch. of Clayton v. Cty. of Clayton, 9 Iowa 175, 177 (1859), a case decided “at a time when the 1857 constitution was quite fresh in people’s minds”). 107. IOWA CONST. art. II, § 6 (1846). 108. See Trimble v. State, 2 Greene 404, 419–20 (Iowa 1850) (Kinney, J., dissenting). 166 Drake Law Review [Vol. 66 indicated that one should only look at the “four corners” of a statute to determine if its operation was non-uniform.121 As long as the legislation placed every county under the same ground rules, it was constitutional.122 After all, even if county judges were authorized to issue licenses in every county, there might be differences in their exercise of discretion as to whether or not to issue a license.123 Moreover, under the majority’s approach, one would not know whether the practical effect of the law was uniform until the people of the various counties voted.124 Just five months later, the Iowa Supreme Court ruled in McMillen v. Lee County Judge (1858) that a statute legalizing the issuance of bonds in two counties, but not the remaining Iowa counties, did not violate article I, section 6.125 As the court put it rather pithily, “It will not be claimed, certainly that this law is of a general nature.”126 Notably, this decision was authored by the same jurist, Chief Justice Wright, who had dissented in Geebrick.127 Later the same month, in Ex Parte Pritz (1858), the Iowa Supreme Court considered the constitutionality of legislation that abolished the office of police magistrate in Davenport by amending a previous act incorporating that city.128 The court, through Chief Justice Wright, found a clear violation of article III, section 30’s prohibition on special laws regarding the incorporation of cities and towns.129 It also found a separate violation of article III, section 30’s bar on special laws “where a general law can be made applicable.”130 In doing so, the court rejected the contention “that the legislature is the sole judge whether a general law can be made applicable,” since this would mean the last clause of section 30 “has no vitality.”131 The Pritz court also raised the possibility (without deciding the issue) six-year term in the U.S. Senate. Id. He was also one of the founders of the Iowa Law School at Des Moines. Id. (modernly known as the University of Iowa Law School). 121. Geebrick, 5 Iowa at 500. 122. Id. at 500–01. 123. Id. at 502. 124. Id. at 501. 125. McMillen v. Lee Cty. Judge, 6 Iowa 391, 392–93 (1858). 126. Id. at 394. 127. See id. at 392; Geebrick, 5 Iowa at 499–503. 128. Ex parte Pritz, 9 Iowa 30, 38 (1858). 129. Id. at 32–33. 130. Id. at 35–36. 131. Id. at 36. 2018] Article I, Section 6 of Iowa’s Constitution 167 that the law might violate article I, section 6.132 Interestingly, this part of the court’s discussion cited the second clause of article I, Section 6—the privileges and immunities clause.133 As the court put it, “[W]e suggest the query, whether, if this species of legislation may be tolerated, then may not the legislature grant to the citizens of one city or town, privileges and immunities, which, upon the same terms, do not belong to all the citizens of other cities or towns.”134 The court also reasoned the legislature could have achieved its objective of eliminating the office of police magistrate in Davenport—without violating the Iowa constitution—by giving all cities the authority to amend their own charters.135 The Pritz court went on to elaborate that article VIII, section 12 could not justify the legislation in question because: [T]he power to amend given by sec. 12, relates to laws for the creation of the corporations therein contemplated, and not to municipal corporations or those for other purposes than pecuniary profit. This article was intended to prescribe and limit the power of the General Assembly in relation to banking institutions and other corporations for pecuniary profit, and the whole subject of special or local legislation as to municipal corporations is withdrawn from the law-making power, by the other provisions of the constitution.136 The court’s textual analysis of this section focused on the introductory phrase “subject to the provisions of this article” and emphasized that article VIII related to banks and other for-profit corporations.137 In Whiting v. City of Mt. Pleasant, the court indicated that a law authorizing residents to petition to have their property severed from the city limits would violate the uniformity clause if it exempted previously incorporated cities.138 The court noted that under such an interpretation, “The inhabitants of fifty cities incorporated under acts of the legislature prior to this, might be denied the same remedy in our courts of justice that is granted to the inhabitants of fifty cities organized under this act.”139 The 132. Id. at 35. 133. Id. 134. Id. 135. Id. at 34–35. 136. Id. at 37–38. 137. Id. 138. Whiting v. City of Mt. Pleasant, 11 Iowa 482, 485 (1861). 139. Id. 168 Drake Law Review [Vol. 66 court believed that outcome would be unconstitutional.140 Therefore, in finding that the statute did not grandfather previously incorporated cities from having to comply with its requirements, the court relied on the familiar rule that statutes are construed to avoid unconstitutional results where possible.141 Then, a year later, in Dalby v. Wolf, the court concluded that a law giving counties the option of prohibiting swine and sheep from running at large did not violate the uniformity clause.142 The court justified its ruling on the ground that “[t]he same rule—the same law—was given to all the people of the State, to all parts of it.”143 Seemingly, Dalby conflicted with Geebrick.144 The author of the court’s opinion, then-Justice Wright, while noting he had dissented in Geebrick, reconciled the two cases by urging that the Geebrick majority’s views on the uniformity clause were not necessary to the decision.145 Of course, the mere fact that the earliest uniformity clause cases dealt with claims of geographic disparity does not necessarily mean this was the entire scope of the clause. During the Civil War, the Iowa Supreme Court decided its first case under the uniformity clause that did not involve discrimination based on location—McCormick v. Rusch (1863).146 Once again, Justice Wright wrote the majority opinion.147 The law at issue allowed any defendant to obtain a court continuance who was serving on active duty in the military (i.e., fighting for the North in the Civil War).148 The plaintiff argued that the law violated the uniformity clause.149 Therefore, the plaintiff insisted, the defendant–soldier’s motion for continuance should not have been granted, and the plaintiff should have been granted a default judgment due to defendant’s failure to answer.150 Needless to say, the defendant had a compelling case on the equities, and the court gave “but little weight” to the 140. Id. 141. Id. at 485–86. 142. Dalby v. Wolf, 14 Iowa 228, 230 (1862). 143. Id. at 231. 144. Compare id. at 230, with Geebrick v. State, 5 Iowa 491, 497–98 (1858). 145. Dalby, 14 Iowa at 231. 146. See McCormick v. Rusch, 15 Iowa 127, 129 (1863). 147. Id. at 128. 148. Id. at 128–29. 149. Id. 150. Id. 2018] Article I, Section 6 of Iowa’s Constitution 171 clause because it applied equally to any railroad.166 The court elaborated: Very many laws, the constitutionality of which are not doubted, do not operate alike upon all citizens of the State. . . . These laws are general and uniform, not because they operate upon every person in the State, for they do not, but because every person who is brought within the relations and circumstances provided for, is affected by the law. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation.167 Under this now-increasingly-familiar standard, a law seemingly would not violate the uniformity clause so long as it affected everyone that it was designed to affect.168 A number of later Iowa cases quoted with approval some of the foregoing language from McAunich.169 To the same effect is U.S. Express Co. v. Ellyson (1869).170 The law in that case established a separate formula for assessing tax on telegraph and express companies: 60 percent of the gross receipts were presumed to be expenses, and the rest would be taxed.171 The court upheld the statute, deciding it was a general law of uniform operation.172 The court explained that the law was simply “an amendment to our general . . . law” that prescribed how the taxable estate of telegraph and express companies was 166. Id. at 343. 167. Id. at 343–44. 168. See id. 169. See, e.g., Midwest Mut. Ins. Ass’n v. De Hoet, 222 N.W. 548, 550–51 (Iowa 1928) (quoting McAunich, 20 Iowa at 343–44); Huston v. City of Des Moines, 156 N.W. 883, 889 (Iowa 1916) (quoting McAunich, 20 Iowa at 344–45); State v. Fairmont Creamery Co. of Neb., 133 N.W. 895, 899 (Iowa 1911) (quoting McAunich, 20 Iowa at 343–44) (“Turning to our own previous cases great liberality has always been indulged in the matter of classification.”); Eckerson v. City of Des Moines, 115 N.W. 177, 184 (Iowa 1908) (quoting McAunich, 20 Iowa at 344); McGuire v. Chi., B. & Q. R. Co., 108 N.W. 902, 906 (Iowa 1906) (quoting McAunich, 20 Iowa at 343–44), aff’d Chi., Burlington, & Quincy R.R. Co. v. McGuire, 219 U.S. 549 (1911); Morris v. Stout, 78 N.W. 843, 844 (Iowa 1899) (quoting McAunich, 20 Iowa at 343–44); Iowa Eclectic Med. Coll. Ass’n. v. Schrader, 55 N.W. 24, 27 (Iowa 1893) (quoting McAunich, 20 Iowa at 343–44); Iowa R.R. Land Co. v. Soper, 39 Iowa 112, 116 (1874) (quoting McAunich, 20 Iowa at 343–44). 170. See U.S. Express Co. v. Ellyson, 28 Iowa 370, 375–76 (1869). 171. Id. at 376. 172. Id. at 375–76. 172 Drake Law Review [Vol. 66 to be determined, and if this law were called into question, so would all laws prescribing different rules for the assessment of different businesses.173 In Haskel v. City of Burlington (1870), the court considered a constitutional challenge to a law that empowered cities incorporated under special charters to sell property for delinquent taxes.174 The plaintiff’s attack was based upon article III, section 30, and the court found the law was general and uniform even though it only applied to certain cities—namely, those previously incorporated under special charters.175 Explaining what was meant by a uniform operation, the court observed: The true construction seems to be, that the act in question operates upon a particular condition, and attaches to it certain consequences, and that whenever that condition exists the consequences follow. So that wherever cities are found, in whatever portion of the State, be they few or many, which were incorporated under special charters, to them the law applies. And it applies to all cities in the State falling within the class specified, and, hence, is not local nor special, but of uniform operation.176 The court distinguished Pritz because there the law had singled out one city (Davenport) instead of defining a class to which it applied.177 Thus, in Haskel, the court took a lenient view of the uniformity requirement even though the case involved geographic discrimination.178 In City of Dubuque v. Illinois Central Railroad Co., the court briefly touched upon the uniformity clause.179 There the city challenged a state law that exempted railroad property from municipal taxation.180 A majority of the court found this law violated article VIII, section 2 of the Iowa constitution, which provides, “The property of all corporation for pecuniary profit, shall be subject to taxation, the same as that of individuals.”181 Although article I, section 6 was not the basis for the court’s ruling, in passing, the court added, “This uniformity in taxation is within the purview 173. Id. at 376–77. 174. Haskel v. City of Burlington, 30 Iowa 232, 233–34 (1870). 175. Id. at 236–37. 176. Id. at 237. 177. Id. (distinguishing Ex parte Pritz, 9 Iowa 30, 32–33 (1858)). 178. See id. 179. City of Dubuque v. Ill. Cent. R.R. Co., 39 Iowa 56, 59–60 (1874). 180. Id. at 59–60 (quoting H.F. 279, 14th Gen. Assemb., Reg. Sess. (Iowa 1872)). 181. Id. at 68 (quoting IOWA CONST. art. VIII, § 2). 2018] Article I, Section 6 of Iowa’s Constitution 173 of Art. I, § 6 of the Constitution, which secures uniform operation of all laws and forbids the General Assembly to grant to any citizen or class of citizens special privileges or immunities.”182 While observing that the term “taxation” in article VIII, section 2 was “general and comprehensive,” the court noted somewhat cryptically that it did not mean “to convey the thought that taxes upon all property must be levied in the same manner, but that all property must be subjected to taxation for the same purpose.”183 The following year, Federal Circuit Judge John Dillon, a former Iowa Supreme Court Justice,184 rejected a challenge based on article I, section 6’s uniformity clause to a complicated railway tariff that was tied to the railroad’s earnings per mile (the more the railway earned per mile, the less it could charge the customer).185 In this case, entitled Chicago, B. & Q. R. Co. v. Attorney General (1875), Judge Dillon commented that there “may be good reasons” for the differential, and the law “is uniform in its operation upon all roads in each class.”186 He added that similar acts “are not uncommon in our legislation, and their validity has been sustained by the courts.”187 State v. Shreoder (1879) involved a law that authorized municipalities to regulate the sale of liquors both within the city limits and less than two miles outside those limits.188 The challenger urged that the law violated the uniformity clause because cities might exercise their regulatory authority in different ways—some banning and others allowing the sale of liquor.189 The court resolved the challenge with a conclusory statement that “[t]he constitutionality of this provision cannot be doubted.”190 B. The Privileges and Immunities Clause Early Iowa case law did not devote nearly as much attention to the privileges and immunities clause. In McAunich (1866), which, as noted, 182. Id. at 68–69. 183. Id. at 69–71. 184. Dillon, John Forrest (December 25, 1831–May 6, 1914), U. IOWA, http://uipress.lib.uiowa.edu/bdi/DetailsPage.aspx?id=95 (last visited Nov. 11, 2017). 185. Chi., B. & Q. R. Co. v. Att’y Gen., 5 F. Cas. 594, 598 (D. Iowa 1875), aff’d sub nom. Chi., B. & Q. R. Co. v. Iowa, 94 U.S. 155 (1876). 186. Id. 187. Id. 188. State v. Shreoder, 1 N.W. 431, 431–32 (Iowa 1879). 189. Id. at 432. 190. Id. 176 Drake Law Review [Vol. 66 equality is destroyed. This uniformity in taxation is within the purview of Art. 1, § 6, of the Constitution, which secures uniform operation of all laws and forbids the General Assembly to grant to any citizen or class of citizens special privileges or immunities. The history of corporations for pecuniary profit in this country shows that there long has been a disposition on the part of these artificial persons to seek, and on the part of legislatures to grant, immunities and exemptions from taxation. It has often occurred that their charters provided for total exemptions from taxes or for rules of taxation applicable to them, different from those affecting other property holders. Legislation in other forms has been often sought and granted, securing the same end. The law before us, as well as others enacted in this State, bear evidence of the correctness of this statement. Against such legislation, the evils of which existed and were felt when the Constitution of 1857 was adopted, the provision above quoted was aimed.214 From these early interpretations of article I, section 6 out of the 1850s, 1860s, and 1870s, some tentative lessons can be drawn. Geebrick and Whiting illustrate that in the earliest days, the uniformity clause had some teeth as applied to geographic disparities.215 It soon became apparent, though, that the legislature could defang these teeth simply by giving local governments an option, so long as each government received the same option.216 At the same time, the uniformity clause had little force when other types of disparities were challenged. In McCormick, Jones, McAunich, U.S. Express, and Chicago, B. & Q. R. Co., the courts gave short shrift to claims that laws violated the uniformity clause because similarly situated persons had been treated differently.217 Rather, the courts’ reasoning was basically circular: if the law defined a category to which it would apply, and it applied to everyone in that self-defined category, then the law was uniform.218 214. City of Dubuque, 39 Iowa at 68–69. 215. See Whiting v. City of Mt. Pleasant, 11 Iowa 482, 485 (1861); Geebrick v. State, 5 Iowa 491, 497 (1858). 216. See Dalby v. Wolf, 14 Iowa 228, 231–32 (1862). 217. McGuire v. Chi., B & Q. R. Co., 108 N.W. 902, 906 (Iowa 1906), aff’d Chi., Burlington, & Quincy R.R. Co. v. McGuire, 219 U.S. 549 (1911); U.S. Express Co. v. Ellyson, 28 Iowa 370, 375–76 (1869); McAunich v. Miss. & Mo. R.R. Co., 20 Iowa 338, 343–44 (1866); Jones v. Galena & Chi. Union R.R. Co., 16 Iowa 6, 9–10 (1864); McCormick v. Rusch, 15 Iowa 127, 129 (1863). 218. Chi., B & Q. R. Co. v. Att’y Gen., 5 F. Cas. 594, 598 (D. Iowa 1875) aff’d sub nom. Chi., B. & Q. R. Co. v. Iowa, 94 U.S. 155 (1876); U.S. Express Co., 28 Iowa at 375– 76; McAunich, 20 Iowa at 343–44; Jones, 16 Iowa at 9–10; McCormick, 15 Iowa at 129. 2018] Article I, Section 6 of Iowa’s Constitution 177 Meanwhile, the privileges and immunities clause was seen as targeting a different problem: grants of special economic status. To be sustained, such a grant had to have some specific justification, such as the need to weed out unfit purveyors of alcoholic beverages219 or the inefficiency of having multiple water companies in one city.220 Early on, the court voiced doubt that the privileges and immunities clause would apply to a law that resulted in worse treatment, rather than better treatment, for a specific line of business.221 Thus, in early case law, the two clauses appeared to serve independent, if related, goals. One clause addressed differences in treatment based on geography; the other concerned special economic privileges granted to a few. Also, for the most part, these mid-nineteenth-century court decisions focused on one clause rather than the other. But some blending of the two clauses was already starting to occur; for example, in Pritz.222 The 1866 decision in McAunich stands out because the court effectively merged discussion of the two clauses.223 Notably, McAunich is the case from this era most cited in later case law.224 IV. SIMILAR LANGUAGE IN OTHER STATE CONSTITUTIONS As we have already discussed, article I, section 6 consists of two clauses forged together.225 Both clauses have parallels in other state constitutions.226 It is, therefore, worth considering how other states interpreted these analogous provisions during the mid-nineteenth century. Iowa was unique, though, in combining the uniformity clause and the privileges and immunities clause within a single constitutional provision.227 219. In re Ruth, 32 Iowa 250, 251 (1871). 220. Grant v. City of Davenport, 36 Iowa 396, 406 (1873). 221. McAunich, 20 Iowa at 343. 222. See Ex parte Pritz, 9 Iowa 30, 35 (1858). 223. See McAunich, 20 Iowa at 343. 224. See Graham v. Worthington, 146 N.W.2d 626, 639 (Iowa 1966); Midwest Mut. Ins. Ass’n v. De Hoet, 222 N.W. 548, 550–51 (Iowa 1928); Huston v. City of Des Moines, 156 N.W. 883, 889 (Iowa 1916). 225. Supra Part II. 226. See infra Part IV.A. 227. See IOWA CONST. art. I, § 6. North Dakota’s 1889 constitution included counterparts to both provisions, but in separate sections. Compare IOWA CONST. art. I, § 6, with N.D. CONST. art. I, §§ 21–22. 178 Drake Law Review [Vol. 66 A. Other States with Similar Uniformity Clauses The state constitutions of California, Georgia, Kansas, North Dakota, Ohio, Oklahoma, Utah, and Wyoming contain uniformity clauses similar to Iowa’s.228 Of these states, California, Kansas, and Ohio deserve the closest look because they adopted their provisions at approximately the same time as Iowa. Ohio’s 1851 constitution contained the following text: “All laws, of a general nature, shall have a uniform operation throughout the State . . . .”229 The job soon fell to the Supreme Court of Ohio to interpret this language. In 1853, that court upheld a law authorizing a particular county to subscribe to the stock of a railroad, citing the necessity of a local or special law in this area.230 The court observed, The origin of this section is perfectly well known. The legislature had often made it a crime to do in one county, or even township, what it was perfectly lawful to do elsewhere; and had provided that acts, even for the punishment of offenses, should be in force, or not, in certain localities as the electors thereof respectively might decide. It was to remedy this evil and prevent its recurrence that this section was framed.231 Just three years later, the Supreme Court of Ohio struck down a law that varied the jurisdiction of trial courts depending on the county.232 The court reasoned, “A partial operation, confined to ‘certain counties,’ thus attempted to be given to a law general in its nature; and a majority of the court think that this act is therefore in direct conflict with the constitutional provision on that subject.”233 Then, in an 1863 opinion, the Supreme Court of Ohio distilled its basic geographic understanding of the uniformity provision into a single, lengthy paragraph, stating, 228. Compare IOWA CONST. art. I, § 6, with CAL. CONST. art. IV, § 16, and GA. CONST. art. III, § 6, para. IV, and KAN. CONST. art. II, § 17, and N.D. CONST. art. I, § 22, and OHIO CONST. art. II, § 26, and OKLA. CONST. art. 5, § 59, and UTAH CONST. art. I, § 24, and WYO. CONST. art. I, § 34. 229. OHIO CONST. art. II, § 26. Note the additional phrase “throughout the State.” Id. 230. Cass v. Dillon, 2 Ohio St. 607, 609 (1853). 231. Id. at 617. 232. Kelley v. State, 6 Ohio St. 269, 273–74 (1856). 233. Id. at 274. 2018] Article I, Section 6 of Iowa’s Constitution 181 enactments “exempting cities, counties and individuals from the operation of general laws,” the Supreme Court of California upheld the statute: The language must be carefully noted. It is not that all laws shall be universal or general in their application to the same subjects, nor is it even that all “laws of a general nature” shall be universal or general in their application to such subjects; but the expression is, that these laws “of a general nature” shall be “uniform in their operation”—that is, that such laws shall bear equally, in their burdens and benefits, upon persons standing in the same category. But this category depends upon the facts which characterize the offense. Every defendant is not entitled to the same privileges, or subject to the same burdens, as every other; for instance, some are entitled to bail, others are not, and this depends upon the particular facts characterizing the imputed crime. When we speak of uniformity in the operation of a law, we speak of that operation which is equal under the same facts; for what justice or uniformity would there be in applying the same rigor of remedy or the same measure of punishment to all conditions of fact or degrees of criminality, merely because there existed a similarity or identity in the general charge? The effect of laws of a general nature shall be the same to and upon all; but who are “the all” who are the subjects of this operation? Obviously, the answer is, all who stand in the same relations to the law; all, in other words, the facts of whose cases are in substance the same.242 In a subsequent case involving the constitutionality of absentee voting by soldiers, which the majority resolved without reaching the uniformity clause, a dissenting justice commented rather acerbically on that clause: The language of this section, like the laws of which it speaks, is of a general nature. So general as to leave in doubt, when by itself considered, the nature and extent of the rule it was designed to establish. The more one turns it over in his mind with a view to extract therefrom some intelligible rule for legislative guidance, the more strongly he will become impressed with the idea that this clause in our Constitution, by itself considered, does not rise much above the level of nonsense. The meaning of the predicate, however, is clear, for by a “uniform operation,” I understand as was said in [an earlier case], an operation which is equal in its effect upon all persons or things upon which the law 242. Id. at 552, 554–55. A later commentator called this an example of “reductionist reasoning” that “rendered article I, section 11 virtually meaningless.” Joseph R. Grodin, The California Supreme Court and State Constitutional Rights: The Early Years, 31 HASTINGS CONST. L.Q. 141, 158–59 (2004). 182 Drake Law Review [Vol. 66 is designed to operate at all.243 In the views of this dissenter, once a law established a classification, California courts simply would not second-guess it.244 To put it another way, in mid-nineteenth-century California, identically situated persons needed to be treated the same, but merely similarly situated persons did not.245 Laws had to apply equally when the facts were identical.246 This way of thinking departs from a modern equal protection analysis that requires differences in treatment to be justified by differences in circumstances. The early California approach thus resembles that taken by the Iowa Supreme Court in early cases involving claims of nongeographic disparity, such as McCormick, McAunich, U.S. Express, Co. and Chicago, B. & Q. R. Co.247 The Supreme Court of California summarized this narrower approach with the following maxim: “Every general law . . . must operate equally on all persons and upon all things upon which it acts at all.”248 Kansas’s 1859 constitution contained the following Ohio-like provision: “All laws of a general nature shall have a uniform operation throughout the state . . . .”249 In 1863, the Kansas Supreme Court posited that a law would be “nugatory as not being of uniform operation” if it allowed redemption by warrants of lots sold for unpaid taxes within cities—but only cash redemption of lots outside the city limits.250 The following year, the 243. Bourland v. Hildreth, 26 Cal. 161, 256 (1864) (Sanderson, C.J., dissenting) (citation omitted). 244. See id. 245. See People ex rel. Smith, 17 Cal. at 552; Coleman, 4 Cal. at 55–56. 246. See People ex rel. Smith, 17 Cal. at 552; Coleman, 4 Cal. at 55–56. 247. Compare People ex rel. Smith, 17 Cal. at 552, and Coleman, 4 Cal. at 55–56, with Chi., B & Q. R. Co. v. Att’y Gen., 5 F. Cas. 594, 598 (D. Iowa 1875), aff’d sub nom. Chi., B. & Q. R. Co. v. Iowa, 94 U.S. 155 (1876), and U.S. Express Co. v. Ellyson, 28 Iowa 370, 375–76 (1869), and McAunich v. Miss. & Mo. R.R. Co., 20 Iowa 338, 343–44 (1866), and McCormick v. Rusch, 15 Iowa 127, 129 (1863). 248. French v. Teschemaker, 24 Cal. 518, 544 (1864). For example, in Corwin v. Ward, the Supreme Court of California saw “no constitutional objection” to an act that authorized 5 percent damages to be taxed as costs against the losing party only in San Francisco County. 35 Cal. 195, 198–99 (1868) (citations omitted). The court noted, “It operates equally and uniformly upon all parties in the same category—upon all upon whom it acts at all—that is to say, upon parties in the City and County of San Francisco, where the cause was litigated.” Id. 249. Compare KAN. CONST. art. II, § 17, with OHIO CONST. art. II, § 26. 250. Judd v. Driver, 1 Kan. 455, 464 (1863). 2018] Article I, Section 6 of Iowa’s Constitution 183 same court stated that a law “not being in force in certain parts of the State” lacked a “uniform operation.”251 The year after that, the court found a law giving judges discretion whether to summon a grand jury complied with the Kansas constitution.252 The court reasoned that “wherever a grand jury shall be summoned within the State it must be done according to that act.”253 Geography seems to have been the major concern,254 although as with Ohio, the language of the clause was slightly different from article I, section 6.255 B. Other States with Similar Privileges and Immunities Clauses Presently, Arizona, Arkansas, Indiana, North Dakota, Oregon, South Dakota, and Washington have state constitutional provisions that resemble Iowa’s privileges and immunities clause.256 Of these other jurisdictions, Indiana and Oregon are potentially the most relevant. Their constitutions were adopted in 1851 and 1857, respectively, making them quite close in time to Iowa’s 1857 constitution.257 Indiana’s constitution, like that of Iowa, provides, “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”258 Helpfully, the provision was fiercely debated by the Indiana delegates.259 One supporter of the provision stated, “Sir, the proposition is a plain one, that there shall be no exclusive monopolies—no privileges granted to one man which shall not, under the same circumstances, belong to all men.”260 The sponsor of the language concurred, saying, “This [clause] 251. State v. Thompson, 2 Kan. 432, 437 (1864). 252. Rice v. State, 3 Kan. 141, 169 (1865). 253. Id. 254. See id. 255. Compare KAN. CONST. art. II, § 17 (1859), and OHIO CONST. art. II, § 26, with IOWA CONST. art. I, § 6. 256. Compare ARIZ. CONST. art. II, § 13, and ARK. CONST. art. II, § 18, and IND. CONST. art. I, § 23, and OR. CONST. art. I, § 20, and S.D. CONST. art. 6, § 18, and WASH. CONST. art. I, § 12, with IOWA CONST. art. I, § 6. 257. Compare IND. CONST. art. I, § 23, and OR. CONST. art, XVIII, § 1, with IOWA CONST. art. I, § 6. 258. Compare IND. CONST. art. I, § 23, with IOWA CONST. art. I, § 6. 259. See 2 REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE STATE OF INDIANA 1393–94 (1850) [hereinafter 2 REPORT OF THE DEBATES]. 260. Id. at 1394. 186 Drake Law Review [Vol. 66 licenses to men only, stating simply, “[W]e do not think that the right to engage in the business of retailing intoxicating liquors is one of the rights contemplated by the section in the bill of rights which we have copied.”277 Two years later, the court upheld segregated schools in Indiana, finding the privileges and immunities clause did not apply because at the time of the 1851 constitution, “[African Americans] were neither citizens of the United States nor of this State.”278 Thereafter, another conclusory decision held that a law banning the brokerage of common-carrier tickets did not violate the clause, either, because “[t]he provisions of the statute in this regard are manifestly police regulations.”279 Yet, as we have already discussed, there are solid grounds in the constitutional debates for attributing an antimonopoly original purpose to Indiana’s privileges and immunities clause.280 Article I, section 20 of the Oregon constitution likewise states: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”281 Oregon borrowed this language from the 1851 Indiana constitution.282 However, there was no recorded debate on this provision at the Oregon Constitutional Convention of 1857.283 And we have been unable to find any Oregon case law applying article I, section 20 during the 1850s through 1870s.284 277. Blair, 40 Ind. at 315. 278. Cory, 48 Ind. at 341. 279. Fry, 63 Ind. at 560–61. 280. See 2 REPORT OF THE DEBATES, supra note 259, at 1394. 281. OR. CONST. art. I, § 20. 282. W. C. Palmer, The Sources of the Oregon Constitution, 5 OR. L. REV. 200, 201, 214–15 (1926). 283. Burton & Grade, supra note 41, at 533. 284. For an article arguing that the privileges and immunities clause was part of a Jacksonian movement against government-conferred monopoly, see Steven G. Calabresi & Larissa C. Leibowitz, Monopolies and the Constitution: A History of Crony Capitalism, 36 HARV. J.L. & PUB. POL’Y 983, 1077–78 (2013) (characterizing the Iowa, Indiana, and Oregon provisions as “prohibitions on granting exclusive privileges, which arguably provide even broader protection against government favoritism than is provided by a monopoly ban”). See also Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 TEX. L. REV. 1195, 1207 (1985) (stating that such provisions “reflect the Jacksonian opposition to favoritism and special treatment for the powerful”). 2018] Article I, Section 6 of Iowa’s Constitution 187 V. IOWA’S LANDMARK CIVIL RIGHTS DECISIONS Iowa is justly known for three landmark civil rights decisions.285 Yet, it is worth noting that none of these decisions were based upon article I, section 6.286 In re Ralph (1839) presented essentially the same issue as the Dred Scott case 18 years later—namely, what happens when an owner in a slave state allows one of his slaves to take up residence in a free state.287 Ralph was originally a slave in Missouri, which was then a slave state.288 In 1834, Ralph’s owner agreed to let him move to the Iowa Territory and buy his freedom for $500 plus interest.289 The arrangement was memorialized in a written contract.290 Ralph settled in Dubuque and went to work in the lead mines, but did not earn enough to pay off the contract.291 The former owner therefore tried to have Ralph seized and returned to Missouri as a slave once again.292 Ralph was captured by bounty hunters and taken into the sheriff’s custody in Dubuque County.293 A concerned citizen stepped in and filed for habeas corpus on Ralph’s behalf.294 The district judge ordered Ralph to be released.295 The case was then transferred to the newly established Iowa Supreme Court.296 Reaching the opposite conclusion from the subsequent Dred Scott decision, the Iowa Supreme Court held that Ralph was a free man and ordered his discharge.297 The court reasoned that Congress banned slavery 285. See Coger v. Nw. Union Packet Co., 37 Iowa 145, 152–53 (1873); Clark v. Bd. of Dirs., 24 Iowa 266, 269 (1868); In re Ralph, Morris 1, 4–5 (Iowa 1839); see generally Cady, supra note 14 (discussing In re Ralph, Clark v. Bd. of Dirs., and Coger v. Nw. Union Packet Co.). 286. IOWA CONST. art. 1, § 6. 287. Compare In re Ralph, Morris at 4–5, with Dred Scott v. Sandford, 60 U.S. 393, 459–60 (1857), superseded by constitutional amendment, U.S. CONST. amend. XIV. 288. In re Ralph, Morris at 5. 289. Id. 290. Id. 291. Id.; Elaine Croyle Bezanson, People in the News: Ralph Montgomery, GOLDFINCH, Summer 1995, at 1, 6. 292. In re Ralph, Morris at 5. 293. Bezanson, supra note 291, at 6. 294. Id. 295. Id. 296. Id. 297. In re Ralph, Morris at 7. 188 Drake Law Review [Vol. 66 in the Iowa Territory, and allowing Ralph’s former owner to reclaim him would in effect recognize slavery within the territory.298 As the court put it, “The master who . . . permits his slave to become a resident here, cannot afterward exercise any acts of ownership over him within this territory.”299 Otherwise stated, Ralph’s owner forfeited any property right when he allowed Ralph to move to a free territory.300 Ralph’s debt to his former owner, the court reasoned, was like any other contract debt and could not reduce a free man to the status of slave in the free Iowa Territory.301 Although the court ended its opinion with the noble sentiment that “the laws . . . should extend equal protection to men of all colors and conditions,” it based its decision on the Missouri Compromise of 1820, not article I, section 6, which was not then in existence.302 The next two landmark Iowa civil rights cases were decided after the 1857 constitution had been ratified.303 Therefore, the court potentially could have invoked article I, section 6 if it had been viewed at that time as an equal rights guarantee. The first case, Clark v. Board of Directors (1868), was brought on behalf of twelve-year-old Susan Clark, who had been refused admission to her neighborhood public school in Muscatine because of her African American ancestry.304 The essential question for the court was whether local school boards had discretion to establish segregated schools.305 Relying on article IX, section 12 of the Iowa constitution and subsequent legislation, the Iowa Supreme Court held to the contrary: Now, under our Constitution, which declares that provision shall be made “for the education of all the youths of the State through a system of common schools,” which constitutional declaration has been effectuated by enactments providing for the “instruction of youth between the ages of five and twenty-one years,” without regard to color or nationality, is it not equally clear that all discretion is denied to the board of school directors as to what youths shall be admitted? It seems 298. Id. at 6. 299. Id. at 7. 300. Id. at 6–7. 301. Id. 302. See id. 303. Coger v. Nw. Union Packet Co., 37 Iowa 145, 153–55 (1873); Clark v. Bd. of Dirs., 24 Iowa 266, 274 (1868). 304. Clark, 24 Iowa at 274. 305. Id. at 269–70. 2018] Article I, Section 6 of Iowa’s Constitution 191 VI. THE SUBSEQUENT INCORPORATION OF FEDERAL EQUAL PROTECTION CLAUSE ANALYSIS INTO ARTICLE I, SECTION 6 INTERPRETATION Congress passed the Fourteenth Amendment, including the Equal Protection Clause, on June 13, 1866, and a sufficient number of states ratified the Amendment on July 9, 1868.319 As we discuss herein, the Iowa Supreme Court’s view of the relationship between the Equal Protection Clause and article I, section 6 has evolved over the years. Initially, whenever a party raised both provisions in an appeal, the court often applied the same analysis to both, but never actually said that the two provisions served the same or even similar functions.320 Then, beginning around the start of the twentieth century, article I, section 6 came to be treated as a direct counterpart to the Equal Protection Clause.321 The court would occasionally characterize it as the “equal protection clause” of the Iowa constitution and say that a violation of either provision was a violation of the other.322 In more recent times, article I, section 6 and the Equal Protection Clause have not necessarily received the same interpretation, but importantly, article I, section 6 continues to be viewed as an equal protection clause, serving the same purpose as the federal version in the Fourteenth Amendment.323 A. Parallelism, 1885–1906 It was probably inevitable that a party to a lawsuit in Iowa would raise both article I, section 6 and the Fourteenth Amendment in the same case. But it took a while, which possibly implies that most mid-nineteenth-century Whatever might have been the exigencies which would seem to require an act to settle the different conflicting titles to the half-breed lands, still the legislature had no right, under the organic law and ordinance, to pass a special and limited act confined to a particular class of individuals, by which they were to be deprived of their property. In common with all other persons of the territory, the owners of these lands could only be divested of them by judicial proceedings according to the course of the common law. Id. at 27–28. Nonetheless, the court did not cite to the uniformity clause, then located in article II, section 5 of the 1846 constitution. See id. 319. The Constitution: Amendments 11-27, NAT’L ARCHIVES, https://www.archives.gov/founding-docs/amendments-11-27 (last visited Nov. 18, 2017). 320. Infra Part VI.A. 321. Infra Part VI.B. 322. Infra Part VI.B. 323. Infra Part VI.C. 192 Drake Law Review [Vol. 66 Iowans did not believe the two provisions were congruent.324 In 1885, the Iowa Supreme Court saw the first such two-pronged challenge.325 The railroad plaintiff in that case argued that a state law unconstitutionally authorized railroad property to be assessed for property-tax purposes every year, whereas other property could be assessed only every other year.326 In sustaining this law, the court explained that a classification violated neither the Fourteenth Amendment nor article I, section 6 so long as “property belonging to all corporations of the same character, and which possess the same rights and privileges, [was] assessed in the same manner.”327 The court did not separate its Fourteenth Amendment analysis from its article I, section 6 analysis, but to be fair, the court’s abbreviated opinion did not really contain much in the way of analysis at all.328 The next reported decision to refer to both article I, section 6 and the Fourteenth Amendment surfaced almost a decade later.329 Owen v. Sioux City (1894) presented a challenge to a state law authorizing “cities of the first class, that have been or may be organized since Jan. 1st, 1881” to assess property owners for costs of streets and sidewalks.330 The court found that the law had a uniform operation: although it ostensibly divided up cities based on their date of incorporation, in reality all cities of similar population were being treated similarly.331 At the tail end of its opinion, the court also stated that the law did not violate the Equal Protection Clause.332 Next came a lawsuit in 1899 that objected to a state law taxing the premiums of foreign (and out-of-state) insurance companies at a higher rate than Iowa-based companies.333 There the Iowa Supreme Court found no violation of the uniformity clause, based on the McAunich maxim that “every person or corporation brought within the relations and circumstances provided for is affected by the law,” and the court also found no violation of 324. See Cent. Iowa Ry. Co. v. Bd. of Supervisors, 25 N.W. 128, 128–29 (Iowa 1885). 325. Id. 326. Id. at 128. 327. Id. at 129. 328. See id. 329. Owen v. City of Sioux City, 59 N.W. 3, 3 (Iowa 1894). 330. Id. at 3 (quoting Acts 20th Gen. Assem. C. 20). 331. Id. at 4. 332. Id. at 5 (citing U.S. CONST. amend. XIV, § 1). 333. Scottish Union & Nat’l Ins. Co. of Edinburgh v. Herriott, 80 N.W. 665, 666 (Iowa 1899), overruled in part by Yoerg v. Iowa Dairy Indus. Comm’n, 60 N.W.2d 566 (Iowa 1953). 2018] Article I, Section 6 of Iowa’s Constitution 193 the privileges and immunities clause, because that clause only “has reference to citizens or classes of citizens residing in the state.”334 The court acknowledged that the foreign-insurance-company plaintiff had also raised the Fourteenth Amendment, but it brushed past this claim with the observation: “There is no requirement of either the federal or state constitution that a tax on business or on privileges shall be uniform.”335 In the foregoing two cases, the Iowa Supreme Court reached the same result under article I, section 6 and the Fourteenth Amendment, but it didn’t analyze the two provisions together.336 That changed in State v. Santee (1900).337 There the court held unconstitutional a statute that forbid the use of certain petroleum products for lighting purposes, except when used in a particular brand of lamp.338 In light of the parties’ agreement that other lamps were just as safe, the court determined that the law violated article I, section 6 and the Fourteenth Amendment, stating, “[A] law that required [the defendant] to use a particular lamp, when others equally safe were in the market, would be a violation of his constitutional rights and would also give to the manufacturer special privileges over others producing equally meritorious lamps.”339 Then, a month later, in State v. Garbroski (1900), the court consciously borrowed from federal Equal Protection law standards in invalidating a law that exempted Civil War veterans from an itinerant peddler’s tax under article I, section 6.340 The court observed, The classification attempted by this statute is based on no apparent necessity, or difference in conditions or circumstances that have any relation whatever to the employment in which the veteran of the Civil War is authorized to engage without paying license. It savors more of philanthropy (worthy of the highest commendation, in its proper sphere) than of reasonable discrimination, based on real or apparent fitness for the work of peddling.341 Thus, Santee and Garbroski both struck down laws that granted favored economic status—in one case an effective monopoly for a certain 334. Id. at 667 (citing McAunich v. Miss. & Mo. R.R. Co., 20 Iowa 338 (1866)). 335. Id. at 667–68. 336. See id. at 666–68; Owen, 59 N.W. at 4–5. 337. State v. Santee, 82 N.W. 445, 446 (Iowa 1900). 338. Id. 339. Id. 340. State v. Garbroski, 82 N.W. 959, 959–61 (Iowa 1900). 341. Id. at 961. 196 Drake Law Review [Vol. 66 McGuire.358 A generation later, a federal district court cited McGuire and concluded, “The Supreme Court of Iowa has in effect interpreted the provision of section 6 of article 1 of its State Constitution as imposing substantially the same restrictions upon the power of the Legislature as are imposed on the states by the Fourteenth Amendment to the Constitution of the United States.”359 The court used this justification to give article I, section 6 “no separate consideration” when it upheld the constitutionality of a Depression-era escalating tax on chain stores.360 Meanwhile, Iowa Supreme Court decisions through the early part of the twentieth century reflected converging standards, but generally without repeating McGuire’s maxim that the Fourteenth Amendment and article I, section 6 “do not differ materially” in their effects.361 In Berg v. Berg (1936), the Iowa Supreme Court said the federal and state “attacks may be considered together because the two provisions invoked so far as applicable here, both seek to insure equality before the law and aim at the same evil, namely, class legislation.”362 The Iowa Supreme Court took a firmer step toward formally merging its analysis of the two provisions in 1948 in Dickinson v. Porter.363 There the court upheld a state tax credit that was available only for agricultural lands of ten acres or more located within a school district where the property tax rate was above a certain level.364 The court stated, “The effect of section 1, Fourteenth Amendment to the federal constitutional as applied to this case is substantially the same as these uniformity provisions of our own constitution. In general, if a law does not offend against one constitution it 358. Id. at 899 (quoting McGuire, 108 N.W. at 906; McAunich v. Miss. & Mo. R.R. Co., 20 Iowa 338, 343–44 (1866)). 359. Great Atl. & Pac. Tea Co. v. Valentine, 12 F. Supp. 760, 764 (S.D. Iowa 1935) aff’d, 299 U.S. 32 (1936) (citing McGuire, 108 N.W. at 915). 360. Id. 361. See, e.g., Iowa Nat’l Bank v. Stewart, 232 N.W. 445, 450 (Iowa 1930), rev’d sub nom. Iowa-Des Moines Nat’l Bank v. Bennet, 284 U.S. 239 (1931) (referring to article I, section 6 as “the corresponding guaranty” to the Equal Protection Clause); Chi. & Nw. Ry. Co. v. Bd. of Supervisors of Clinton Cty., 198 N.W. 640, 643 (Iowa 1924) (referring for the first time to the “equal protection clauses of both the state and federal Constitutions”). 362. Berg v. Berg, 264 N.W. 821, 824 (Iowa 1936). 363. Dickinson v. Porter, 35 N.W.2d 66, 72 (Iowa 1949). 364. Id. at 70. 2018] Article I, Section 6 of Iowa’s Constitution 197 is inoffensive to the other.”365 It took 17 more years, but the court eventually began using Dickinson as its decisional template. In Becker v. Board of Education of Benton County (1965), while citing both Dickinson and Berg, the court said, We need not consider the two constitutional provisions separately since the effect of Article I, section 6, of our state constitution is substantially the same as the equal protection clause of Amendment 14 and if a statute does not offend against one of these provisions it is inoffensive to the other. 366 The court essentially made the same point again in Graham v. Worthington (1966), when it sustained certain classifications established by the Iowa Tort Claims Act.367 Of course, one effect of convergence (and, for that matter, parallelism) was that the two separate clauses within article I, section 6 no longer had independent significance.368 The uniformity clause did not mean anything different from the privileges and immunities clause, and vice versa. As the Iowa Supreme Court later said, “When a classification survives an equal protection challenge under article I, section 6, it will also survive a privileges and immunities challenge under the same provision . . . .”369 C. Federal Equal Protection Analysis as the Starting Point, 1980–Present Since 1980, the Iowa Supreme Court has generally used federal Equal Protection Clause jurisprudence as its starting point when considering claims under article I, section 6.370 Often, it has also used that jurisprudence as its endpoint—reaching the same result as the federal courts.371 Sometimes 365. Id. at 72. 366. Becker v. Bd. of Educ., 138 N.W.2d 909, 912 (Iowa 1965) (citation omitted). 367. Graham v. Worthington, 146 N.W.2d 626, 638 (Iowa 1966); see also Hawkins v. Preisser, 264 N.W.2d 726, 730 (Iowa 1978); City of Waterloo v. Selden, 251 N.W.2d 506, 509 (Iowa 1977); State v. Books, 225 N.W.2d 322, 323 (Iowa 1975). 368. See In re Chi., Milwaukee, St. Paul & Pac. R.R. Co., 334 N.W.2d 290, 294 (Iowa 1983). 369. Id. 370. See, e.g., Bierkamp v. Rogers, 293 N.W.2d 577, 579 (Iowa 1980) (stating that, although not binding, the U.S. Supreme Court’s construction of the Federal Constitution “is persuasive[]. . . upon this court in construing analogous provisions in our state constitution”). 371. See, e.g., Bowers v. Polk Cty. Bd. of Supervisors, 638 N.W.2d 682, 689 (Iowa 198 Drake Law Review [Vol. 66 not.372 But a key point is that even when the state interpretation of article I, section 6 differs from the federal interpretation of the Equal Protection Clause, the latter interpretation has become the frame of reference. Thus, convergence is no longer the automatic rule, but it has not been replaced by an adherence to the original understanding of article I, section 6—or to any other Iowa-based standard. Instead, recent analysis has worked off of federal precedent, with the end product a derivative of that precedent. In Bierkamp v. Rogers (1980), the Iowa Supreme Court overturned Iowa’s guest statute, which barred nonpaying passengers from suing negligent drivers.373 The court began its discussion with U.S. Supreme Court precedent upholding guest statutes under the Fourteenth Amendment, and then acknowledged that it had long found a similar standard “to flow from Article I, section 6.”374 Yet it then proceeded to find the guest statute unconstitutional under the same standard that the U.S. Supreme Court had employed to find it constitutional.375 Bierkamp did not stop the court from continuing to proclaim that it interpreted the Equal Protection Clause and article I, section 6 “to be substantially similar.”376 In Miller v. Boone County 2002) (“We usually deem the federal and state equal protection clauses to be identical in scope, import, and purpose.” (citing Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 792–93 (Iowa 1994))). 372. See, e.g., Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 3 (Iowa 2004). 373. Bierkamp, 293 N.W.2d at 578. 374. Id. at 579–80. 375. Id. at 582–85. 376. Stracke v. City of Council Bluffs, 341 N.W.2d 731, 733 (Iowa 1983); accord Bowers, 638 N.W.2d at 689 (“We usually deem the federal and state equal protection clauses to be identical in scope, import, and purpose.”); In re Morrow, 616 N.W.2d 544, 547 (Iowa 2000); State v. Cronkhite, 613 N.W.2d 664, 666 (Iowa 2000) (“Generally, as here, we deem the federal and state Due Process and Equal Protection Clauses to be identical in scope, import, and purpose”); State v. Mann, 602 N.W.2d 785, 792 (Iowa 1999) (alterations in original) (quoting State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998), overruled by State v. Bruegger, 773 N.W.2d 862 (Iowa 2009)) (“We apply the same analysis in considering [a] state equal protection claim as we do in considering [a] federal equal protection claim.”); Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998) (“We . . . apply the same analysis under the equal protection provisions of both constitutions.”); Ceaser, 585 N.W.2d at 192 (“We apply the same analysis in considering the state equal protection claim as we do in considering the federal equal protection claim.”); Ex rel. C.P., 569 N.W.2d 810, 811 (Iowa 1997) (“Typically, we deem the federal and state due process and equal protection clauses to be identical in scope, import, and purpose.”); Krull v. Thermogas Co. of Northwood, Iowa, Div. of Mapco Gas Prods., Inc., 522 N.W.2d 607, 614 (Iowa 1994) (“In equal protection challenges based on the federal and Iowa Constitutions, we usually interpret both federal and state equal protection