In a 7-2 decision, Justice Stevens held that the Privileges or Immunities Clause of the Fourteenth Amendment protected a right to travel that encompassed the ability of citizens to move freely between states, the right for visitors of a state to be treated equally with citizens of the state, and secured the right of new citizens of a state to be treated equally with long-time state residents. This holding nullified a California law that paid welfare benefits to new residents in need who had been in California for less than one year at the level paid by the citizen’s previous state of residence.
The majority’s decision is activist in that it invokes notions of living constitutionalism, assigning a meaning to the Privileges and Immunities Clause that never existed: a right to travel that encompasses a right equal access of government welfare benefits. Worse, the Court’s decision continues the activism of the Slaughterhouse cases by neglecting to discern the original meaning of the privileges or immunities clause.
As Justice Thomas notes in his dissent, the phrase “privileges or immunities” comes from colonial charters, and this understanding informed the Founders inclusion of the Privileges and Immunities Clause in Article IV, Section 2 of the U.S. Constitution. This understanding encompassed “privileges” and “immunities” as, to quote Justice Thomas, “only fundamental rights that belong to all citizens of the United States.” Fundamental rights are distinct from government benefits however, as Justice Washington made clear in the seminal case of Corfield v. Coryell. In analyzing the original meaning of the phrase in the Fourteenth Amendment, Thomas rightly concludes:
[A]t the time the Fourteenth Amendment was adopted, people understood that “privileges or immunities of citizens” were fundamental rights, rather than every public benefit established by positive law. Accordingly, the majority's conclusion-that a State violates the Privileges or Immunities Clause when it “discriminates” against citizens who have been domiciled in the State for less than a year in the distribution of welfare benefits-appears contrary to the original understanding and is dubious at best.
Thomas rightly chastises the Court for failing to even try to discern the original meaning of the Privileges or Immunities after allowing it to remain dormant since all-but-writing it out of the Constitution in the Slaughterhouse Cases. He warns that the majority’s failure to look to original meaning in divining what is or is not a privilege or immunity of citizenship “raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the ‘predilections of those who happen at the time to be Members of this Court.’”