The “Judicial Holy Grail”: Why the Supreme Court Should Not Revisit the Privileges or Immunities Clause


The “Judicial Holy Grail”: Why the Supreme Court Should Not Revisit the Privileges or Immunities Clause

May 31, 2016 25 min read Download Report
The Honorable Stephen Markman

Should the Privileges or Immunities Clause of the Fourteenth Amendment now be revisited 147 years after the amendment was ratified, followed five years afterwards by a Supreme Court decision whose interpretation of the clause has persisted since then?[1] Just as the Slaughterhouse Cases decision has persisted, so has the controversy surrounding it. The growing level of attention focused on the clause in recent years, for example, and the burgeoning legal literature seeking to revitalize it prompted Justice Antonin Scalia to characterize it as the “darling of the professoriate.”[2]

Why, among thousands of decisions of the Court, many of which also continue to generate strong disagreement yet are acknowledged as having been settled by the passage of time, has Slaughterhouse become the central focus of so much academic effort to secure revisiting and reconsideration? It is not, I would suggest, in order to perfect a Constitution that is marred only by a singularly wayward judicial decision.

I would not revisit the Privileges or Immunities Clause at this time. I would not do so because to this day, it is not clear what the clause was intended to accomplish; because what I believe was most likely intended has long since been accomplished by other clauses of the Fourteenth Amendment; and because the continuing debate over the meaning of the clause is largely between factions of the “professoriate,” many of whom seem bent on conferring meanings to the clause that were never even remotely contemplated by its framers and ratifiers. The common result of these interpretations would be to further centralize and strengthen governmental power—in particular, that of the federal government at the expense of state governments and that of the judiciary at the expense of more accountable and representative branches of government.

In the words of constitutional historian David Currie, the present debate reflects the “incessant quest for the judicial holy grail…the discovery of a clause that lets [judges] strike down any law [they] do not like.”[3] This at a time when there is already within our judicial culture far too much “holy grail”–like decision-making in which the personal preferences of judges and justices have come increasingly to displace the policy determinations of “we the people” acting through the democratic institutions of government.

“Privileges or Immunities” Defined

The Privileges or Immunities Clause of the Fourteenth Amendment provides that:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Slaughterhouse almost certainly erred in concluding that the Privileges or Immunities Clause, generally understood as describing the rights belonging equally to citizens of the national and state governments, pertained only to the privileges or immunities of national citizenship. The Court’s interpretation was hardly frivolous, comparing the two categories of citizenship set forth in the first sentence with the single category of privileges or immunities set forth in the second sentence. Nonetheless, it was almost certainly the purpose of the latter, by its reference to “citizens of the United States,” not to define and limit the scope of rights protected to those that attached to national citizenship, all of which were already protected against state abridgement by the Supremacy Clause of the Constitution,[4] but rather to define the scope of persons protected.

In short, the purpose of the first sentence was to overturn the Supreme Court’s Dred Scott decision,[5] holding that blacks could not be citizens of the United States, and to provide that all persons, including free and emancipated blacks, who met the citizenship requirements of this sentence were both national and state citizens and thereby entitled under the second sentence to the privileges or immunities of both of these citizenships. “Citizens of the United States” were concurrently citizens of the United States and citizens of their state.

Thus, while Slaughterhouse recognized the division of privileges or immunities into those belonging to national and state citizenships, the Court, by its construction of the clause, had no need to define the nature or substance of state privileges or immunities,[6] since these were not the subject of the clause’s protections. Possibly also, the Court itself was unclear as to what privileges or immunities encompassed, and perhaps understandably so, since over the ensuing century and a half, lawyers, judges, and the professoriate have still reached no consensus in their understanding of the term.

Judge Robert Bork has contended that the clause remains an “inkblot,” a “Rorschach test,” and “inscrutable,” while others who have looked closely at both its text and its historical record have variously concluded that it is “confused,” “utterly uncertain,” “virtually boundless,” “shadowy,” “a blank check,” “standardless,” “mysterious and cabalistic,” “vague and variegated,” “inconsistent,” and “murky.” Senator Reverdy Johnson of Maryland, a former Attorney General of the United States, was perhaps the most perceptive observer during the congressional debates on the clause when he remarked, “I do not understand what will be its effect.”[7]

Although I believe the Slaughterhouse majority (four of the five justices of which had been appointed by Presidents Lincoln or Grant) erred in a critical aspect of its interpretation of the clause and thereby stunted the proper development of both the clause and the amendment, I also believe the decision was correct in its recognition that the three clauses of the first section of the new amendment (Privileges or Immunities, Equal Protection, and Due Process) showed a “unity of purpose when taken in connection with a history of the times…the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”[8]

Furthermore, I believe the decision was correct in its understanding that although the three post–Civil War amendments “thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation…we do not see in those amendments any purpose to destroy the main features of the general system.” In particular, the Court did not see any purpose to “constitute this court a perpetual censor upon all legislation of the States” or “to radically change the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”[9]

Finally, I believe the ultimate holding in Slaughterhouse, a case having nothing to do with the “unity of purpose” of the Fourteenth Amendment in upholding black civil rights, was correct in rejecting a challenge to a Louisiana law consolidating for health and sanitary purposes the venue of the slaughtering trade in New Orleans.[10] In refusing to strike down what it viewed as an ordinary exercise of the state’s traditional “police power” to promote “health, good order, morals, peace and safety,” the Court majority rejected the dissenters’ assertions of substantive due process[11] and their comparison of the conditions of the butchers disadvantaged by Louisiana’s law with the “servitude” from which blacks had just been freed by the Thirteenth Amendment.[12]

Interpreting the Clause

Two principal questions must be addressed by anyone choosing to revisit the Privileges or Immunities Clause:

  • Does the clause establish a minimum or substantive level of protection of privileges or immunities or simply require non-discrimination as to such rights?
  • Which rights comprise the protected privileges or immunities?

These are both difficult questions because both the constitutional language and the intentions of the framers and ratifiers are considerably less clear than they might have been. As Professor Donald Dripps has written, “to say that the clause is consistent with one’s own theory of its meaning is uninteresting because the clause is consistent with almost anything.”[13]

Nonetheless, because it is relevant to my conclusion concerning the wisdom of now revisiting the clause, I will briefly offer my own perspectives as to its most plausible, if not necessarily impregnable, meaning.[14] This analysis is largely in accord with one I prepared nearly 30 years ago as Assistant Attorney General for Legal Policy in the Reagan Administration for Attorney General Edwin Meese in anticipation of litigation.[15] Its conclusions are perhaps best captured by Professor John Harrison, who, in summarizing his own more recent and thoughtful analysis of the clause, has concluded that “the words do say something; indeed they say exactly what their historical context would lead us to expect them to mean.”[16]

In short, the clause comprised a central part of a constitutional amendment proposed and ratified within three years of the Confederacy’s surrender at Appomattox bringing an end to the Civil War. During those three years, so-called Black Codes were enacted throughout much of the South seeking to deprive blacks of the fruits of their emancipation. Both the text and legislative history, as well as the obvious historical context, of the Privileges or Immunities Clause suggest, although there is hardly consensus, that the Constitution was thereby amended to ensure that all rights of citizenship would be enjoyed equally by white and black citizens. While an even more expansive and momentous constitutional reform can doubtless be imagined—and while such imagining is precisely what appears to unite most contemporary scholarship on the subject—full legal equality between the races, with expanded federal enforcement powers, was hardly a minor accomplishment and in conjunction with the other Reconstruction Amendments[17] represented an altogether appropriate and plenary response to both the Civil War and the Black Codes that ensued in its wake.

By this understanding, the Privileges or Immunities Clause of the Fourteenth Amendment provided an intrastate guarantee of non-discrimination between white and black citizens just as the similarly worded Privileges and Immunities Clause of Article IV of the original Constitution (the Comity Clause) had earlier provided an interstate guarantee of non-discrimination between citizens of one state while in another state.[18]

What unites these provisions, in addition to their identity of language, is their purpose and non-discrimination focus. Each extends certain rights of state citizenship to a class of persons who had not previously enjoyed these rights: Article IV extending these rights to the citizens of other states and the Fourteenth Amendment extending these rights to black citizens. And just as Article IV judged the non-resident citizen’s rights by comparing these to the rights enjoyed by resident citizens,[19] I believe the Fourteenth Amendment judged the black citizen’s rights by comparing these to the rights enjoyed by white citizens.

The rights described are rights of non-discrimination, and as state citizenship rights, these are defined by the states themselves and not by the Bill of Rights, “natural rights,” or any other external standard.[20] If state privileges or immunities were defined in the latter manner as a guarantee of minimum or substantive rights, such rights would then be identical in every state and thus be tantamount to national privileges or immunities, applicable as a function of national and not state citizenship.

Thus, the Privileges or Immunities Clause of the Fourteenth Amendment was to be understood, as had been the Privileges and Immunities Clause of Article IV for the previous 80 years, by reference to the privileges or immunities actually enacted by each state for its own citizens.[21] Whatever these were, so too were the privileges or immunities that would have to be extended equally to white and black citizens within that state. As Professor Harold Hyman has written:

Instead of formulating positively national civil-rights minima, as some Republican Radicals preferred to do, the Amendment forbade unequal deprivations of the broad, uncodified, vague mass of civil-rights practices which a state professed to afford equally to the generality of its citizens. Thus, the Amendment assumed the familiar cast of the 1787 Constitution’s Bill of Rights without specifying bills of wrongs for every state. The states would do that job. At a given moment a state’s laws, constitutions, procedures and customs would be the catalogue of what a state must not selectively deny to its free Americans. As in the [Civil Rights Act of 1866], states could turn off a national presence by equalizing official intrastate life styles.[22]

Concerning the second question laid out in this section—what rights constitute the privileges or immunities, or citizenship rights, that must be applied non-discriminatorily?—the congressional debates repeatedly invoked one of three possible meanings:

  • The rights set forth in the Civil Rights Act of 1866, a statute whose constitutionality the Fourteenth Amendment was designed to ensure;[23]
  • The rights set forth in Corfield v. Coryell, a federal circuit court Comity Clause decision in 1823;[24] or
  • A more contemporary understanding of Comity Clause rights.[25]

What is significant is that each of these sources of rights had been defined by reference to its equal application within the states, and determination by the states themselves, rather than by reference to some external assemblage of substantive rights determined by federal courts and the Congress.

Those who seek to give meaning to the Privileges or Immunities Clause can reasonably disagree in many respects, but the following are several of the principal interpretive clues that have persuaded me that the clause is best understood as requiring the non-discriminatory treatment of black citizens and not the adoption of the Bill of Rights, “natural rights,” or some other aggregation of federally determined substantive rights: [26]

  • The identity between the language of the non-discrimination–only Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment and the common purpose of these provisions to confer fundamental rights of state citizenship upon those who had not previously been entitled to such rights.
  • The largely parallel and contemporaneous histories of the Civil Rights Act of 1866 and the Privileges or Immunities Bill of 1866, each of which was non-discrimination–only, with the Privileges or Immunities Clause and the fact that the latter was repeatedly described as ensuring the constitutional validity of the former.[27]
  • That the critical phrase at issue, although intended as a legal term of art, is nonetheless comprised of two terms, “privileges” and “immunities,” each of which seems more suggestive of a provision addressing unequal or disparate treatments and less suggestive of the conferral of a substantive or minimum legal entitlement.[28]
  • The contrast between the coverage of the Privileges or Immunities Clause to “citizens” and the coverage of subsequent clauses of the same Fourteenth Amendment to “persons.” If it had been the intention of the amendment to incorporate the Bill of Rights, why would this have been pursued through the one clause that excludes tourists, business visitors, non-citizens, and others lawfully within the country from such protections as the freedom of speech and the right to confront witnesses?[29]
  • The fundamental recognition that what had harmed free blacks prior to the Civil War and what promised to harm all blacks after the war was not the absence of incorporation-type privileges or immunities (substantive federal rights that had been the subject of little judicial application up to that time) but the absence of Comity Clause–type privileges or immunities (state citizenship rights).
  • The correlation between the non-discriminatory context in which the term “abridge” is employed in Section 2 of the amendment and its use in the clause: to wit, in each instance, to describe a matter subject to plenary state control (in Section 2 voter qualifications in state elections) yet to prohibit state actions in that realm undertaken in a discriminatory manner.
  • That an understanding of the clause as conferring a substantive rather than a non-discriminatory entitlement would largely nullify the distinctions between national and state privileges or immunities implied in the first sentence of the clause, since all states would then be obligated to recognize a uniform array of privileges or immunities defined by the federal courts and Congress.[30] Moreover, what would be the point of characterizing a body of citizenship rights defined by a different sovereign as comprising the privileges or immunities of that citizenship, particularly if one views as a threshold right of citizenship the right to participate in self-government?[31]

Finally, in my view, the legislative history of the Fourteenth Amendment is replete with statements explaining the Privileges or Immunities Clause in terms of its constitutionalization of the Civil Rights Act of 1866, its affinity with the language of the Comity Clause, and its responsiveness to the evils that had brought about the Civil War and prompted the adoption of Southern Black Codes, accompanied by expressions of intentions to maintain the constitutional structures of the country except as necessary to address these evils.[32] It is considerably more difficult, on the other hand, to find statements clearly asserting an intention to impose the Bill of Rights upon the states,[33] discussions explaining how state constitutions had proven deficient in not protecting these same rights, acknowledgments of the significance of the changes in the constitutional structure that would be wrought by incorporation, or explanations of the rationale for including the Northern states in the impending transformation,[34] all of which might have been expected had it genuinely been Congress’s intention to incorporate the Bill of Rights by the Privileges or Immunities clause. It is similarly difficult to find references in the debates to the works of Adam Smith, John Stuart Mill, John Locke, or any other intellectual light in examining the implications of establishing natural rights as the “supreme law of the land.”[35]

In the latter regard, one might also have thought that past judicial debates concerning the relevance of natural rights as a tool of constitutional interpretation might have been referenced, if only to emphasize which jurisprudential understandings were supposedly being affirmed and repudiated by the new clause. It may be especially useful to recall the remarks of Justice Iredell in his exchange with Justice Chase in one of the nation’s earliest Supreme Court opinions in reminding us today why there might have been at least one or two Members of the Congress moved to respond to the notion that a “higher law” provision was being incorporated into our Constitution:

The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.[36]

In the end perhaps, I find most telling and persuasive the negative legislative history of the Privileges or Immunities Clause, the “dog that did not bark,” during the debates. In the aftermath of the Civil War, and in the midst of a difficult and divisive Reconstruction, did the Congress truly intend to risk a further heightening of tensions by an amendment radically altering our constitutional system in ways having almost nothing to do with an equality of African–American civil rights, while transforming not only the relationship of the Southern states to the national government, but also that of the prevailing Northern states? As has more than once before been asked, were Northern armies marching under state flags in order to diminish their own states’ sovereignty?

Judge Bork has opined in this regard:

[It is not easy] to imagine that Northern states, victorious in a Civil War that led to the 14th Amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves.[37]

Legal historian Raoul Berger has similarly observed, “[Republican legislators] simply dare[d] not hold out to the Ratifiers that the North, which had not been guilty of the offensive practices of the South, would be deprived of control over its own civil and criminal administration.”[38] And he has further inquired, “Where is the clearly expressed intention…to curtail Northern control of its own destiny, and under cover of ‘equal protection’ and ‘privileges or immunities’ to extend federal intervention in local affairs to an undreamed-of extent?”[39] While Professor Charles Fairman has opined:

The freedom that the states traditionally have exercised to develop their own system for administering justice repels any thought that the federal provisions on grand jury, criminal jury, and civil jury were fastened upon them in 1868 [by incorporation]. Congress would not have attempted such a thing, the country would not have stood for it, the legislatures would not have ratified. The electoral campaign of 1868 was fought over the proposed amendment but the debates never took the turn of suggesting that ratification would involve major changes in the administration of justice in the Northern states.[40]

It is particularly unlikely that a Northern citizenry, having been inflamed just several years earlier by the Dred Scott decision,[41] discovering a new constitutional right to introduce slavery into the territories through what came to be known as substantive due process, would have consented to allow the same jurisprudential practice, and the same broad exercise of judicial discretion, to become a permanent part of the constitutional landscape by a clause conferring upon judges the power to facilitate the “pursuit of happiness,” the “common sentiments of the people,” “silent and unenumerated rights,” “natural and inalienable rights,” or even the ends of the great Wealth of Nations.[42]

That neither side in Slaughterhouse did a particularly good job of giving meaning to the Privileges or Immunities Clause is most likely due to the fact that it would have been difficult for anyone to have done this. As observed by Professor Fairman, in addition to the ambiguity of the constitutional text itself, the congressional debates were marked by “barren discussions,” without any “clear conceptions,” free of any explanations of “fundamental principles,” absent any “clear ideas as to its confines,” without “awareness of the want of their own understanding,” and with no declaration of what was to be the “basis of its measure.”[43]

Revisiting the Clause

What, then, are the present circumstances that might inform the wisdom of revisiting and reconsidering the Privileges or Immunities Clause?

Despite the constitutional tumult and transformation of the past 140 years, much of it centered upon the very Fourteenth Amendment of which the Privileges or Immunities Clause is a part, Slaughterhouse has remained intact as the law of the land. While it is only occasionally cited, the decision has never been repudiated or even limited.

Yet “the changes in the American federal system which Chief Justice Miller sought to prevent [in Slaughterhouse] have come about anyway, and the police power of the states, which he sought to uphold, has been continuously limited since at least the 1890s.”[44] The emergence and development of such labyrinthine constitutional concepts as substantive due process, incorporation, “suspect classifications,” rational basis review, and “fundamental rights” protections have altered the relationship between state and national governments in ways that could never have been anticipated by the majority justices in Slaughterhouse, but these concepts have taken root not within the Privileges or Immunities Clause, but within other clauses of the Fourteenth Amendment.

In particular, the broad racial non-discrimination focus of the clause has been alternatively achieved since shortly after Slaughterhouse through the Equal Protection Clause, while incorporation of the Bill of Rights has been achieved through the Due Process Clause. More generally, the jurisprudence of the dissenting justices in Slaughterhouse—the substantive approach to due process, the expansiveness of the legislative categories subjected to judicial scrutiny, the receptiveness to unenumerated rights, and the federalization of constitutional rights—have each to one degree or another come to prevail as the law of the land.[45]

What, then, is the point of revisiting the Privileges or Immunities Clause today? Why should what has been settled for 140 years now be unsettled? Have not compensating interpretations of other provisions of the Fourteenth Amendment largely rendered irrelevant the missteps of Slaughterhouse? If so, are current reform efforts merely intended to reconfigure the clauses of the Fourteenth Amendment so that each more precisely can be made to reflect the original intentions of the Framers?

The latter is not what is at stake. Few proponents of revisiting the Fourteenth Amendment speak of revisiting any provision other than the Privileges or Immunities Clause. Despite the close relationship of the three clauses in Section 1 in furthering the amendment’s “unity of purpose,” it is only the Privileges or Immunities Clause that remains unsettled, and it remains unsettled not because it has been defined imperfectly—although it has been—but because, unlike the other two clauses, each of which has also been defined imperfectly, as a consequence of Slaughterhouse, the Privileges or Immunities Clause offers an opportunity to provide new meaning to the Constitution—not, to be sure, the meaning originally intended by its framers, for that has already been achieved by different means, but a genuinely new meaning and all without the bother of a new constitutional amendment.

The purpose of revisiting the Privileges or Immunities Clause is to place something both “new” and “more” into the Constitution. It is to fill what is viewed as an empty vessel of a provision with something of consequence. It is to facilitate the attainment of the judicial “holy grail.” The clause is uniquely susceptible to an infusion of new and expanded meaning because it is seen as a “glittering generality” capable of accommodating almost any of the creative and innovative theories of its meaning that have been offered by one legal academician after another. There is no interest in merely affirming the constitutional status quo or in guaranteeing rights that are already guaranteed, but in transforming a dormant provision into something far more “meaningful.”

As a result, there will be no need to work for reforms or policies in the 50 state legislatures, or even in the Congress, and equally no need to organize national constitutional amendment efforts within those same bodies, and no need to secure any popular consensus or support among the American people for constitutional change. Rather, all that will be necessary will be to persuade a small number of judges that a provision that has lain unused for 140 years, with its enticingly obscure language guaranteeing to all certain “privileges” and “immunities,” provides an overlooked source of constitutional power, the intricacies of which have been expounded upon at length by a thousand scholars writing in a thousand law reviews of the land.

My first reason, then, for opposing the present revisiting of the clause is because I do not believe it will result in a more accurately interpreted Constitution. Most proposals for revisiting the Privileges or Immunities Clause have little to do with further alleviating the “badges or incidents” of slavery, redressing more subtle or camouflaged Black Code–like public policies, securing more comprehensively non-discriminatory laws, or otherwise securing the full and complete emancipation and equal citizenship of African Americans.

My second reason for opposing this revisiting is because, to quote Senator Johnson again, “I do not know what it will mean.” Scholars and academics looking to the identical language, history, and context of the clause have, for example, recently discovered in it the possibility of the following constitutional guarantees: “positive rights to public benefits,” “minimum welfare standards,” “welfare state rights,” the “obligation of equal treatment,” “educational equality,” “redistributive mutual aid policies,” “natural rights,” “overcom[ing] the limitations of the ‘state action’ requirement,” “common-law rights,” “sexual rights,” “health care rights,” “distinctly personal rights,” the ability to redress “economic disparities,” “natural and inalienable rights,” “fundamental rights,” “union rights,” “equal standing in the national political community,” the right to redress “violations of customary international law,” “opportunities to make the most of our lives,” “silent and unenumerated rights,” “privacy rights,” “economic rights,” “rights of felons,” “fundamental rights contained in the [Northwest] Ordinance,” “private law rights,” “the rights of citizens of free governments, “all of the rights in the Bill of Rights” including those that have not yet been incorporated, “unenumerated fundamental rights,” “international human rights,” “rights stemming from our obligations to our communities,” “social and economic entitlements necessary to make national citizenship meaningful and effective,” and “rights drawn from our affirmative entitlements”—to name a few. While there may be widespread agreement that the clause was wrongly construed in Slaughterhouse, there is no similar agreement as to how it might now be rightly construed.[46]

Thus, the revisiting of the Privileges or Immunities Clause is the judicial analog of the 1,032-page law that must be enacted before it can be read and understood. What this revisiting will produce is anyone’s guess, and only lawyers and judges will be engaged in the process of choosing among the meanings that might be given to the clause. The only meaning that seems beyond the pale is the meaning that was actually intended by its framers, for that meaning has since been achieved by alternative provisions of the Constitution. In short, we have no idea what the new law will mean after it has undergone revisiting.

These decisions will ultimately be made not by “we the people” or by their representatives, but by federal judges who, because the constitutional language to be interpreted has already remained unclear for a century and a half, will almost certainly be engaged less in parsing this language than in parsing their own consciences. Each new decision specifying what constitutes a “privilege” or an “immunity” will be less an interpretation of the Constitution than an amendment of that Constitution. The discovery of each new constitutional “right” will be balanced by a dilution and erosion of the Constitution’s legislative power, its federalist and separation-of-powers premises, its first principles of representative self-government, and its pervading proposition of the rule of law.[47]

It will be the equivalent of a continuing constitutional convention in which judges will be empowered to give meaning—a meaning almost certainly never even contemplated by its framers—to far-reaching and nebulous constitutional language. Rather than determining what is included as a privilege or immunity, the more apt question over time may become: What is not included?

The very strength of the Privileges or Immunities Clause for many advocates of its revisiting is its vagueness and open-endedness, under which an almost limitless assortment of new constitutional rights can be judicially divined, free from the limitations and encrustations of decisions and doctrines that have been built into other clauses of the Fourteenth Amendment over the past century and a half. The clause affords an entirely clean slate in a way that none of these other clauses can.[48]

Finally, it is worth noting with regard to the efforts of Justice Thomas to revisit and reconsider the clause[49] that not one of his colleagues has joined in this endeavor, including those in the closest philosophical accord such as Justices Rehnquist, Scalia, Alito, and Roberts. Indeed, the only justices who have ever appeared to share Justice Thomas’s interest in revisiting and reconsidering have been Justices Douglas, Murphy, Black, and Rutledge,[50] each of whom was arguably in the least philosophical accord. Furthermore, Justice Thomas himself has recognized the need to safeguard against “the specter that the [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.”[51] At least in my judgment, that specter has in no way yet been dispelled.

Judge J. Harvie Wilkinson has likened the Privileges or Immunities Clause to a “dormant volcano” whose “eruption would be both difficult to predict and to contain.”

Neither the language of the clause nor any judicial interpretations provide useful guidance in determining what rights would be fundamental…. For the very reason that it has so long remained a clean slate, a revitalized “privileges or immunities” clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution…. [T]here is much to be said for continuing the present predictability of [the clause’s] jurisprudence and not engaging in a disruptive roll of the dice.[52]

In considering whether the clause should be revisited and given new meaning, it is fair to take into consideration the evolution of our modern legal and judicial cultures. A revitalized clause has every likelihood of becoming a wellspring of new judicially determined rights, and it is a source that will not easily or soon run dry. Its language out of context means everything and it means nothing; its legislative history accurately reflects the confusion of its framers; and its original intentions have been made to seem trivial and inconsequential by the passage of time. Only its historical context—its placement within the timeline of our nation’s history—would seem to suggest its true meaning.

But even here, it is the negative context that is most compelling, the evidence that should have been there but was not if it had been the purpose of the clause to achieve something beyond equalizing the condition of those who had been accursed by our “peculiar institution.” That the purpose of the clause was so obvious does not mean that it was not so. To transform such a provision into a do-anything-or-everything grant of authority to an already over-empowered judiciary lacks any historical or jurisprudential basis.

The burden of proof for constitutional change is upon the proponents of that change, and proponents of conferring some uncertain new meaning upon the Privileges or Immunities Clause are nowhere close to having satisfied that burden. As Justice Scalia has warned, “by trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.”

—The Honorable Stephen J. Markman serves as a justice on the Michigan Supreme Court and teaches constitutional law at Hillsdale College. He previously served as Assistant Attorney General for the Office of Legal Policy in the United States Department of Justice, as Chief Counsel of the United States Senate Subcommittee on the Constitution, and as United States Attorney for the Eastern District of Michigan. This Legal Memorandum is adapted from a presentation made at a debate, “Resolved: The Supreme Court Should Revisit the Privileges or Immunities Clause,” between Justice Markman and Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, held on October 30, 2015, and sponsored by the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The presentations of both speakers can be viewed at

[1] Slaughterhouse Cases, 83 U.S. 36 (1873).

[2] Oral arguments, McDonald v. Chicago, 561 U.S. 742 (2010).

[3] David Currie, The Constitution in the Supreme Court: 1789–1888, at 346–347 (Univ. of Chicago Press 1985).

[4] “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const., art. VI.

[5] Dred Scott v. Sandford, 60 U.S. 393 (1857).

[6] The Court did offer a short illustrative catalog of “privileges or immunities” that “owe[d] their existence to the Federal government, its national character, its Constitution, or its laws,” none of which, it concluded, were at issue in the dispute before the Court. Slaughterhouse, 83 U.S. at 79 (emphasis added).

[7] Cong. Globe, 39th Cong., 1st session (1866) at 3041. Senator Thomas Hendricks shared this confusion, remarking that “[w]hat citizenship is, what are its rights and duties, its obligations and liabilities, are not defined or attempted to be defined, but these vexed questions are left as unsettled as during all the course of our history….” Id. at 2939.

[8] “[N]otwithstanding the formal recognition by the [Southern] States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of [these] States in the legislative bodies which claimed to be in their normal relations with the Federal government were laws which imposed upon the colored race onerous disabilities and burdens and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value…. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced…. [Northern statesmen] accordingly passed through Congress the proposition for the fourteenth amendment….” Slaughterhouse, 83 U.S. at 70–71.

[9] “[If the minority had prevailed], it is easy to see how far the authority and independence of the states would have been diminished, by subjecting all their legislative and judicial acts to correction and review by the judicial branch of the national government.” Twining v. New Jersey, 211 U.S. 78, 96 (1908).

[10] Whatever the “privileges or immunities” of citizens of the United States were, “they did not extend to the rights claimed by the bickering butchers.” Ronald Labbe & Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (Univ. Press of Kansas 2003) at 12. “It can be argued that [the Court’s] goal…was to prevent the 14th Amendment from being diluted and diminished by its application to the issue of localized in-fighting among white butchers over which group would control the lucrative meat trade in New Orleans.” Id. at 11–12 (emphasis added). The slaughterhouse law had been enacted by Louisiana’s newly biracial legislature and was repealed several years later by the people of Louisiana and not by the federal judiciary. Butchers’ Union Co. v. Crescent City, 111 U.S. 746 (1884). To be clear, I am no particular admirer of the slaughterhouse law; I simply do not believe that every exercise in self-government with which I disagree, however vehemently, must thereby be unconstitutional.

[11] “Substantive due process” is the constitutional principle that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only the right of fair procedures, or process, when persons interact with government, but also unstated substantive rights to be judicially determined on a case-by-case basis, Dred Scott, 60 U.S. at 393; Lochner v. New York, 198 U.S. 45 (1905); and Roe v. Wade, 410 U.S. 113 (1973) are three particularly controversial illustrations of substantive due process.

[12] Just as the five majority justices were mistaken, in my view, so too were the four dissenting justices in their three dissents, each of which would have struck down the Louisiana law. To focus only on Justice Field’s dissent, which on its face may appear to be the most restrained of these, he variously defines “privileges or immunities” in terms of “rights belong[ing] to the citizens of all free governments,” the “enjoyment of life and liberty,” and the “right to pursue and obtain happiness.” He would have enforced his own conception of these rights, as in this case, by the creation of arbitrary classifications that would each be made free from “discrimination.” In Slaughterhouse, the relevant classification was butchers advantaged by, and butchers disadvantaged by, state law in terms of where they could carry out their trade. To paraphrase Professor Philip B. Kurland, this is “substantive due process turned into non-discrimination.” There is simply no end to such judicial classifications since most laws categorize people (who will receive a farm subsidy and who will not; who will be punished by the criminal justice system and who will not; who will receive a tax deduction and who will not). If every such classification implicating the “right to pursue and obtain happiness” triggers federal judicial review, the state legislative process becomes little more than a prelude to federal judicial decision-making. See Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 85–86 (1996) (Fields and the other dissenters “agreed that state police powers could limit economic rights, but reserved the right to judge the rationality of the statute for themselves…. [They] delegated questions of reasonableness of much economic legislation to the judiciary.”).

[13] Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down that Wrong Road Again,” 74 N.C. L. Rev. 1559, 1576 (1996). “There is some support in the legislative history for no fewer than four interpretations of the [Privileges or Immunities Clause],” and these pertain only to the first question. David Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008).

[14] Nothing in this exercise, however, gainsays that I remain highly sympathetic to Judge Bork’s “inkblot” analysis on the basis both of the extraordinarily broad range of meanings that have been attributed to the clause and the great weight that must be placed upon the clause’s legislative history in order even to speculate as to its meaning. “In no part of the congressional debates on the [Fourteenth] Amendment is there greater evidence of vagueness and inconsistencies than in the discussions of [the clause].” Gerald Gunther, Constitutional Law 417 (11th ed. 1985).

[15] U.S. Department of Justice, Office of Legal Policy, Report to the Attorney General, Wrong Turns on the Road to Judicial Activism: The Ninth Amendment and the Privileges or Immunities Clause (1987).

[16] John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1474 (1992). See also 4 Southern L. Rev. 575 (1878–79) (“When it is considered as everyone acquainted with the history of the times knows that the entire purpose of this Amendment was to put [blacks] upon a footing before the law of perfect equality with the whites, how can it be doubted that it was intended their words should have their natural meaning?”).

[17] The Thirteenth Amendment had abolished slavery three years earlier in 1865, and the Fifteenth Amendment would guarantee equal suffrage without regard to “race, color, or previous condition of servitude” two years later in 1870.

[18] The Comity Clause of Article IV, described by Alexander Hamilton in Federalist No. 80 as the “basis of the Union,” provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2. “It was undoubtedly the object of the clause to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned…. [I]t insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws.” Paul v. Virginia, 75 U.S. 168, 180 (1868).

[19] See Paul, 75 U.S. at 180.

[20] The Bill of Rights was understood until well into the 20th century to limit only the national government. Barron v. Baltimore, 32 U.S. 242 (1833). However, state constitutions typically encompassed many, if not most, of the same guarantees.

[21] Underlying both the Privileges or Immunities and Comity Clauses are the principles of equality and federalism, in which citizens within each state would be treated equally but each state would not be required to guarantee an identical body of rights. “Although a national principle of [intrastate] equality would impose a significant new limit on the states, it was still a far cry from centralization.” Harrison, supra note 16, at 1413.

[22] Harold Hyman, A More Perfect Union, 467–68 (Houghton-Mifflin 1973).

[23] “[All citizens] shall have the same right, in every State and 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 and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

[24] “[T]he 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. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state…to which it may be added the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.” Corfield v. Coryell, 6 F. Cas. 546, 551–552 (C.C.E.D. Pa 1823). After all of this definition, the court somewhat surprisingly concluded that the right to engage in oyster harvesting in another state on the same terms as the citizens of that state was not among these “privileges and immunities.”

[25] “There seems to be no reason to doubt…that the Framers [of the Fourteenth Amendment] meant to employ [privileges or immunities] as broadly as it had been construed in article IV.” Currie, supra note 3, at 348, n.135.

[26] Although little justification is needed for looking to the history and context of a broadly worded constitutional amendment in order to discern its original meaning, this seems particularly apt where a four-year Civil War involving the loss of 800,000 American lives led directly after its resolution to a legislative process culminating in an amendment whose purposes, according to the near-unanimous sentiment of the time, could be explained by the war and the events immediately following. Slaughterhouse, 83 U.S. at 67 (“The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.”) (emphasis added).

[27] Representative James A. Garfield, a future President, was one of many legislators who observed that the Privileges or Immunities Clause “proposes to hold over every American citizen without regard to color the protecting shield of law…. [T]he civil rights [act of 1866] is now part of the law of the land.” Cong. Globe, supra note 7, at 2462. Concerning the 1866 bill, see in particular Philip Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2011).

[28] Representative James Wilson, House Judiciary Committee Chairman, opined that “immunity” meant an exemption, so that under the Civil Rights Act of 1866, a “colored citizen shall not, because he is colored, be subjected to obligations, duties, pains, and penalties from which other citizens are exempted. Whatever exemptions there may be shall apply equally to all citizens alike.” Cong. Globe, supra note 7, at 1117. See also Representative Jonathan Bingham, “What does the word immunity in your Constitution mean? Exemption from unequal burdens.” Id. at 1089.

[29] Moreover, the express mention in the Fourteenth Amendment of a single one of the guarantees of the Bill of Rights (due process) suggests that the entirety of these guarantees was never intended to be incorporated by the clause.

[30] “[P]rivileges which pertain to citizenship under the general government are as different in their nature from those which belong to citizenship in a State as the functions of the one are different from those of the other.” 2 Joseph Story, Commentaries on the Constitution, § 1937 (Cooley rev. 1873).

[31] To be clear, it is not my point that the dichotomy between federal and state privileges or immunities, or even the matter of federalism itself, is as relevant to the constitutional order today as it might have been in 1868, but only to suggest that in discerning the original meaning of the clause, we must take into account the perspectives of the time. See Ware v. Hilton, 3 U.S. 199, 267 (1796) (“We are too apt in estimating a law passed at a remote period to combine in our consideration all the subsequent events which have had an influence upon it instead of confining ourselves…to the existing circumstances at the time of its passing.”). See, e.g., Hamburger, supra note 27, at 144–45 (“[Incorporationists] complain that, when [Slaughterhouse] rejected incorporation, [it] deprived the Privileges or Immunities Clause of its meaning. This clause, however, protected free blacks from interstate discrimination, and whatever incorporationists think, this once seemed meaningful.”) (emphasis added); contra, “[Slaughterhouse’s] view of society is outdated because it sharply separates state and national citizenship and their contents. People today look primarily to the federal constitution and the federal courts for the protection of their fundamental rights.” Normand Benoit, The Privileges or Immunities Clause of the Fourteenth Amendment: Can There Be Life After Death?, 11 Suffolk U.L. Rev. 61, 100 (1976).

[32] “[E]xcept for the ex-slave, the Union is as the Union was.” Labbe & Lurie, supra note 10, at 221. “Republicans remained committed both to completing the unfinished wartime work of emancipation and to retaining the ‘traditional values of federalism, including local self-rule.” Id. at 5, quoting William Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Harvard Univ. Press 1988) at 7–8. “It is absolutely true that Republicans were unwilling to destroy state governments or the federal system.” Curtis, supra note 12, at 56.

[33] One of the few reasonably straightforward statements in support of incorporation was offered by Senator Jacob Howard of Michigan. Cong. Globe, supra note 7, at 2765. However, if his statement had “really been accepted at the time, surely one would find it caught up and repeated in contemporary discussion—‘Section 1 incorporates the Bill of Rights’—an intricate subject would have been compressed into a capsule. So pat a phrase would have been passed about. The Democratic opposition, if they had understood that any such object was in view, would have sought to turn it to their advantage in states whose practices would be disturbed. And yet one does not find the thought expressed—neither in newspaper editorials or campaign speeches, so far as they have been examined, nor in messages of governors. Lawyers would have urged the contention in the courts and if need be carried their appeals to the Supreme Court. But this simply did not occur.” Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5, 137 (1949).

[34] Moreover, “one would expect such a change to have arisen from an underlying national controversy over incorporation…. [Yet] there is no evidence of either a contemporary congressional debate or an underlying national controversy about incorporation.” Hamburger, supra note 27, at 132. Indeed, in the immediate aftermath of ratification of the Fourteenth Amendment, the Supreme Court issued a decision reaffirming its opinion in Barron v. Baltimore that the Bill of Rights limited only the national government. Twitchell v. Commonwealth, 74 U.S. 321 (1868) (“[W]e entirely concur with Barron.”).

[35] While there are “frequent references…to ‘inalienable,’ ‘inherent,’ or ‘fundamental’ rights of citizenship…[m]ost of these statements were made in the context of criticizing slavery or the black codes, making those statements as consistent with a non-discrimination construction of the clause, as with a fundamental rights interpretation.” Office of Legal Policy, supra note 15, at 97.

[36] Calder v. Bull, 3 U.S. 386, 399 (Iredell, J., concurring). Whether a legislator properly takes “natural law” into account in the exercise of the “legislative power” is a question that is considerably different from the question of whether this constitutes a proper exercise of the judicial power.”

[37] Robert Bork, The Tempting of America (Free Press 1990) at 181.

[38] Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Univ. of Oklahoma Press 1989) at 28. See also Alexander Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 61–62 (1955).

[39] Berger, supra note 38, at 46.

[40] Fairman, supra note 33, at 137–38 (emphasis added).

[41] Paul Carrington, The Constitutional Scholarship of Thomas McIntyre Cooley, 41 Amer. J. Leg. Hist. 396–97 (1997) (“Had the 14th Amendment been presented to the generation who so reviled Dred Scott as a new commission to the Court to impose on suspect legislatures its doubtful wisdom on a wide range of social and economic issues, it would not merely have failed of ratification, but would have been repudiated on almost every side.”).

[42] “[I]t is much harder to read the law of nature than that, of say, Georgia.” Harrison, supra note 16, at 1395.

[43] Fairman, supra note 33, at 138.

[44] Loren Beth, The Slaughterhouse Cases—Revisited, 23 La. L. Rev. 487, 496 (1963).

[45] Except that doctrines such as substantive due process that first came to prevail in the early years of the 20th century in the broad judicial review of state economic policies came to be refocused during the New Deal exclusively on state civil rights and civil liberties policies. United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938). Some present-day libertarians favor restoring the same breadth of judicial review to state economic policies. While I am inclined toward the view that the present limited scope of application of substantive due process involves as arbitrary an exercise of judicial power as does the doctrine of substantive due process itself, I do not share the view that individual freedoms and constitutional liberties are likely to be enhanced by increased resort to contemporary judicial decision-making.

[46] “[L]egal scholars agree on little beyond the conclusion that the clause does not mean what the Court said it meant in 1873.” Saenz v. Roe, 526 U.S. 489, 522 n.1 (1999) (Thomas, J., dissenting).

[47] Although I share many of my debate colleague’s (Professor Randy Barnett’s) first principles concerning the requisites of a free society, see his magisterial Restoring the Lost Constitution (Princeton Univ. Press 2004), one aspect as to which I respectfully take issue is that the constitutional path toward such a society can be built upon the foundation of a weakened system of self-government in which the decisions of “we the people” are increasingly displaced by the decision-making of judges, in particular decision-making in which judges are no longer exercising the traditional Marbury v. Madison judicial power—saying what the law “is”—but rather a quasi-legislative power—saying what the law “ought” to be. See Steven Calabrese, 2005 Survey of Books, 103 Mich. L. Rev. 1081, 1091–92, 1093 (“[Professor] Barnett is right that the Framers meant to give judges the power of judicial review, but that does not mean that federal judges were to second-guess…the reasonableness of state legislation under [the Privileges or Immunities Clause] with no presumption of constitutionality attached to those legislative actions…. [T]he 14th Amendment is [not] a large blank check to judges to sit in judgment on the reasonableness of state laws.”).

[48] “[O]ne should not rule out the possibility that courts and lawyers, growing weary of the heavily encumbered and often sputtering vehicles of due process and equal protection, might yet turn to the still shadowy privileges or immunities clause…for a fresh source of distinctly personal rights. Attracted by its crisp, non-balancing cadence, drawing solace from its availability only to natural persons [and not corporations] and deeming appropriate for an era of affirmative government its aggressively positive rather than negative cast, students of the Constitution and advocates of constitutional progress may find themselves in good company if they treat the clause as alive and potentially robust.” Laurence Tribe, American Constitutional Law (2nd ed. 1988) at 558–559.

[49] McDonald v. Chicago, 561 U.S. 742, 805 (2010) (Thomas, J., concurring). For critiques of Justice Thomas’s analysis, one of the few of his masterly constitutional analyses with which I respectfully disagree, see Hamburger, supra note 27, at 145 n.305; Nelson Lund, Two Faces of Judicial Restraint, 63 Fla. L. Rev. 487, 511–521 (2011). See also McDonald, 561 U.S. at 859–60 (Stevens, J., dissenting) (“[O]riginal meaning of the clause is not as clear as [plaintiffs] suggest—and not nearly as clear as it would need to be to dislodge 137 years of precedent…. For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.”).

[50] See Adamson v. California, 332 U.S. 46 (1947).

[51] Saenz, 526 U.S. at 528.

[52] J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J.L. & Pub. Pol’y 43, 51–52 (1989).


The Honorable Stephen Markman