Privileges or Immunities
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....
Although there is no agreement concerning a single original meaning of the Privileges or Immunities Clause, it is possible to identify three distinct, plausible, and credible original understandings. This essay first describes in general terms the nature of the disagreement, and then discusses in more detail the contending interpretations.
The initial division of opinion is whether the Privileges or Immunities Clause was intended simply to require the states to make their laws apply equally to all their citizens or to mandate a certain substantive content to state law. The equality argument reads the clause to say nothing about the content of a state’s law; rather, it simply says that whatever the content of a state’s law, it must be the same for all citizens. The substantive argument reads the clause to mandate certain content in state law—to prescribe a substantive package of entitlements under state law known as the privileges or immunities attaching to federal citizenship.
The substantive view is subdivided into two versions of the substance of the privileges and immunities of federal citizenship. The first view holds that these privileges or immunities consist of all of the rights and liberties contained in the Constitution, a category that includes such enumerated rights as habeas corpus and the protection against ex post facto legislation or bills of attainder, but, more importantly, the Bill of Rights, that is to say, the first eight amendments. Under this view, the principal, but not exclusive, function of the Privileges or Immunities Clause was to make the entire Bill of Rights binding on the states. This view is influenced by John Locke’s view of natural rights and holds that the privileges and immunities of national citizenship are the natural rights of property and liberty possessed by free persons upon creation of government but never ceded to government. A variant of this view is the contention that the clause was intended to do nothing more than to make the Bill of Rights, and only the Bill of Rights, applicable to the states. The reason that it is so difficult to determine with confidence the original meaning of the Privileges or Immunities Clause is that the statements of proponents of the clause in the Thirty-ninth Congress, particularly Representative John A. Bingham of Ohio, were vague and sometimes inconsistent regarding the intended effect of the clause. Historical evidence outside the congressional debates is also inconclusive. Although each of the three plausible original understandings will be discussed, it is useful to begin with some common historical background.
A central focus of the Thirty-ninth Congress, the body that drafted and proposed the Fourteenth Amendment, was to protect newly emancipated slaves from discriminatory state laws, especially the “Black Codes,” which severely limited the civil and political rights of African-Americans. The first effort in that direction was the Civil Rights Act of 1866, Section 1, which declared “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed,” to be United States citizens and provided that all
citizens, of every race and color, with-out regard to previous condition of slavery . . . shall have the same right, in every State or Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws . . . for the security of persons and property, as is enjoyed by white citizens . . .
Because some supporters of the Civil Rights Act were concerned that Congress lacked constitutional authority to enact the law, Representative Bingham proposed a constitutional amendment that was a precursor to the Fourteenth Amendment. Bingham’s proposed amendment gave Congress “power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States.” Bingham’s proposal was tabled because it did not go far enough. All it purported to do was to give Congress the power to provide by federal law “that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another,” but it failed to bar the states directly (without such federal legislation) from excluding “any class of citizens in any State from the privileges which other classes enjoy.” In its stead, the Fourteenth Amendment was proposed, but the Fourteenth Amendment addressed a number of important practical problems associated with Reconstruction, only one of which was the absence of authority for the 1866 Civil Rights Act.
Even though the text of the clause suggests substantive content to the privileges or immunities of national citizenship, the historical context credibly suggests that the clause may have been intended to require the states to make their laws, whatever their content, apply equally to all their citizens, rather than to proscribe or prescribe state law in any particular substantive manner.
The argument for the equality view is partly historical and partly textual and makes the following contentions. First, the Citizenship Clause of Section 1, which immediately precedes the Privileges or Immunities Clause, defines both national and state citizenship. Because a citizen of the nation is a citizen of a state (unless he resides abroad), the privileges or immunities of national citizenship necessarily include the privileges or immunities of state citizen-ship. Second, because both the Equal Protection and Due Process Clauses extend protection to all persons within a state’s jurisdiction (rather than just citizens), the reference to “citizens” in the Privileges or Immunities Clause is best understood as a reference to a particular group of individuals rather than a reference to a particular set of rights. Third, although the debate in the Thirty-ninth Congress is not a model of clarity, it contains ample suggestions that many members of Congress thought abridgement of a citizen’s privileges or immunities consisted of state “legislation discriminating against classes of citizens” or that gave “one man . . . more rights upon the face of the laws than another man.” Fourth, as a result of prior interpretation of the Privileges and Immunities Clause of Article IV, Section 2, the drafters of the Fourteenth Amendment understood that the privileges and immunities of state citizenship were rights derived from state law, and understood that the function of the Privileges and Immunities Clause of Article IV was to ensure that states treated citizens of other states equally with their own citizens with respect to the privileges and immunities of state citizen-ship. Finally, when Congress debated adoption of what ultimately became the Civil Rights Act of 1875, which forbade private racial discrimination by persons already subject to a legal duty to serve the public indiscriminately, members of Congress grounded that proposed legislation in the Privileges or Immunities Clause of the Fourteenth Amendment.
The idea that the privileges or immunities of national citizenship included substantive rights secured by the Constitution, especially those contained in the Bill of Rights, was partly grounded in the text of the clause, and partly in the comments of certain proponents of the Privileges or Immunities Clause, particularly Bingham, who repeatedly declared that “the privileges and immunities of citizens of the United States . . . are chiefly defined in the first eight amendments to the Constitution.” To be sure, Bingham was, in the words of one modern commentator, a “gasbag” who frequently failed to articulate the constitutional analysis underlying his pronouncements, and that failing has led many subsequent commentators to deride Bingham as “befuddled,” “confused,” and “distinguished for elocution but not for hard thinking.”
This point of view was most notably expressed by historian Charles Fairman and by Justice Felix Frankfurter in his concurring opinion in Adamson v. California (1947). Fairman and Frankfurter argued that incorporation of the Bill of Rights would have immediately invalidated numerous practices of the states and that there was neither any indication that the framers of the clause expected this to happen nor any movement, after ratification of the Fourteenth Amendment, to alter such local practices to comply with the Bill of Rights.
Yet despite this dissonance and Bingham’s failings as an articulate analyst, later interpreters of the record have argued that it was, indeed, the intention of the framers of the clause to make the Bill of Rights, along with all other rights associated with national citizenship, binding on the states. These commentators argue that such an intention was entirely consistent with the antebellum antislavery view of the Constitution, comports with the clause’s textual suggestion of substantive content, and reflects the framers’ lack of concern with or ignorance of incipient conflict between local practices and the demands of the Bill of Rights. On the other hand, subsequent to ratification, Congress approved new state constitutions from the reconstructed states that contained provisions that conflicted with the federal Bill of Rights.
The other substantive conception of the Privileges or Immunities Clause is that it secures a bundle of natural rights of property and liberty, rights possessed by people in the abstract state of nature prior to their voluntary cession of some of these rights to secure the order and stability afforded by government. This reading is based primarily on the fact that, at the time the Privileges or Immunities Clause was pro-posed and ratified, the Privileges and Immunities Clause of Article IV, which requires states to afford the citizens of other states the same privileges and immunities they extend to their own citizens, had been read in a dictum by Justice Bushrod Washington as securing “those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states . . . from the time of their becoming free, independent, and sovereign.” Corfield v. Coryell (1823). Justice Washington had summarized those rights as “[p]rotection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” This reading of the Privileges or Immunities Clause is consistent with the framers’ concern, manifested in the 1866 Civil Rights Act, to secure important fundamental rights for all citizens on a racially nondiscriminatory basis, but this reading goes well beyond that immediate objective by suggesting that states lack the power to enact laws that offend the fundamental rights identified by Justice Washington. This view was echoed most forcefully by Justice Stephen J. Field in his dissent to The Slaughter-House Cases (1873), and, to a lesser extent, by Justice Joseph P. Bradley in his dissent to the same decision. For these two justices, the Privileges and Immunities Clause of Article IV contained substantive protections that were carried over into the Privileges or Immunities Clause of the Fourteenth Amendment. (See Article IV, Section 2, Clause 1.) Field also adopted the equality rationale of the clause as well, and Bradley an incorporationist view.
Nonetheless, the clause was effectively stripped of any meaningful substance by the Supreme Court’s decision in The Slaughter-House Cases. The majority, in an opinion writ-ten by Justice Samuel F. Miller, concluded that the privileges or immunities of national citizenship were, indeed, substantive, but that they consisted of rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” The Court offered examples of these rights: the right “to come to the seat of government . . . the right of free access to its seaports . . . to the subtreasuries, land offices, and courts of justice in the several States . . . to demand the care and protection of the Federal government . . . when on the high seas or within the jurisdiction of a foreign government . . . to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus . . . [t]he right to use the navigable waters, [and the right to] become a Citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.”
Notably absent from these distinctively national rights were the fundamental natural rights identified by Justice Washington in Corfield v. Coryell and the rights secured by the Bill of Rights. Because each state has its own bill of rights in its state constitution, the Court found it unthinkable that the Privileges or Immunities Clause could have been intended “to transfer the security and protection of . . . civil rights . . . from the States to the Federal government,” or “to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States.” Such a change, said the Court, “would constitute this court a perpetual censor upon all legislation of the States,” and “[w]e are convinced that no such results were intended.”
It should be noted that whatever might have been the true original meaning of the clause, no scholar has accepted Justice Miller’s crabbed notion of privileges or immunities as reflecting its original understanding.
After Slaughter-House, the Privileges or Immunities Clause became a virtual dead letter. The equality function of the clause, much altered in character, was assumed by the Equal Protection Clause, and the substantive functions, again altered, were assumed by the Due Process Clause. Both of these clauses of the Fourteenth Amendment applies to “persons,” whereas the Privileges or Immunities Clause is limited to “citizens.” Indeed, except for Colgate v. Harvey (1935), over-ruled five years later in Madden v. Commonwealth of Kentucky (1940), the Supreme Court did not rely on that clause as the basis for any decision until 1999, when it decided Saenz v. Roe (1999). In Saenz, the Court struck down a California law that set welfare benefits for new residents and citizens of California at the level provided by their former state for the first year of their California residency. The Court concluded that one aspect of the right of travel, the right of new state citizens “to be treated like other citizens of that State,” is one of the privileges or immunities of national citizenship.
In 2010, four justices of the Supreme Court ruled, in McDonald v. City of Chicago, that the Second Amendment right to possess a firearm for purposes of self-defense was so fundamental and deeply rooted in our national history and tradition that it was incorporated into the Fourteenth Amendment’s due process clause, thus making the right applicable to the states. Justice Clarence Thomas provided the crucial fifth vote by his concurrence in the judgment, but his rationale was that the privileges and immunities of American citizens included the rights identified in the Bill of Rights. Justice Thomas marshaled historical evidence to conclude that “the most likely public understanding” of the Fourteenth Amendment’s Privileges or Immunities Clause “at the time it was adopted” was that it protected “constitutionally enumerated rights, including the right to keep and bear arms.” Justice Thomas has thus endorsed the more limited substantive view of the clause—that it protects the rights guaranteed by the Bill of Rights and other explicitly enumerated constitutional rights. As yet, he is the only justice to embrace this view.
Akhil Amar, The Bill of Rights: Creation and Reconstruction (1998)
Raoul Berger, Government by Judiciary: The Transformation of the Bill of Rights (1978)
James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (1997)
Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Texas L. Rev. 7 (2008)
2 William Crosskey, Politics and the Constitution in the History of the United States (1953)
David Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985)
Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986)
Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949)
John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992)
Kurt T. Lash, The Fourteenth Amendment and the Bill of Rights: Beyond Incorporation, 18 J. Contemp. Legal Issues 447 (2009)
Kurt T. Lash, The Origins of the Privileges or Immuni-ties Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L.J. 1241 (2010)
Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment, 99 Geo. L. J. 329 (2011)
Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part III: Andrew Johnson and the Constitutional Referendum of 1866, 101 Geo. L.J. 1275 (2013)
EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863–1869 (1990)
BERNARD H. SIEGAN, THE SUPREME COURT’S CONSTITUTION: AN INQUIRY INTO JUDICIAL REVIEW AND ITS IMPACT ON SOCIETY (1987)
Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230)
The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
Colgate v. Harvey, 296 U.S. 404 (1935)
Madden v. Commonwealth of Kentucky, 309 U.S. 83 (1940)
Adamson v. California, 332 U.S. 46 (1947)
Saenz v. Roe, 526 U.S. 489 (1999)
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)