Privileges or Immunities Clause

The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868.

Text of the clause

The clause states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....

Drafting and adoption

The primary author of the Privileges or Immunities Clause was Congressman John Bingham of Ohio. The common historical view is that Bingham's primary inspiration, at least for his initial prototype of this Clause, was the Privileges and Immunities Clause in Article Four of the United States Constitution,^[1][2] which provided that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States".

On February 3, 1866, the Joint Committee on Reconstruction (also known as the "Joint Committee of Fifteen") voted in favor of a draft constitutional amendment proposed by Bingham.^[3] The draft constitutional amendment provided:

The Congress shall have 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....

This language closely tracked the existing language in the Privileges and Immunities Clause. On February 28, 1866, Bingham expressed his opinion that this draft language would give Congress power to "secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States", and he added that, "The proposition pending before the House is simply a proposition to arm the Congress…with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more…If the State laws do not interfere, those immunities follow under the Constitution”.^[4]

Subsequently, on April 28, 1866, the Joint Committee of Fifteen voted in favor of a second draft proposed by Congressman Bingham, which would ultimately be adopted into the Constitution. The Joint Committee no longer tracked the existing language in Article Four as the Committee had previously done. On May 10, 1866, in the closing debate on the House floor, Bingham explained:

[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, cruel and unusual punishments have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.^[5]

The Fourteenth Amendment was approved by the House later that day. Michigan Senator Jacob M. Howard introduced the amendment in the Senate, and gave a speech in which he discussed the meaning of this clause.^[6] Howard noted that the U.S. Supreme Court had never squarely addressed the meaning of the Privileges and Immunities Clause in Article IV, which therefore made the effect of the new Privileges or Immunities Clause somewhat uncertain.^[7]

Congress gave final approval to the Privileges or Immunities Clause when the House proposed the Fourteenth Amendment to the states for ratification on June 13, 1866. There was much discussion of this proposed clause as the amendment awaited ratification by the states. For example, according to a November 15, 1866 pseudonymous letter published in the New York Times:^[8]

"[N]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States."

The clause, together with the rest of the Fourteenth Amendment, became part of the Constitution in July 1868.

Interpretation after adoption

Many judges and scholars have interpreted this clause, and the Slaughter-House Cases decided in 1873 have thus far been the most influential.

Pre-Slaughter-House

On January 30, 1871, the House Judiciary Committee, led by John Bingham, released a House Report No. 22, interpreting the Fourteenth’s privileges or immunities this way:^[9]

The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned', but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

Shortly thereafter, on March 31, 1871, Bingham elaborated:

I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.^[10]

One of the earliest judicial interpretations of the Privileges or Immunities Clause was Garnes v. McCann, Ohio Sup. Ct., in 1871. In it Judge John Day interpreted the clause to protect enumerated constitutional rights such as those listed in the Bill of Rights, but not unenumerated common-law civil rights. He wrote:

This [case] involves the equity as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has been as yet judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment.^[11]

Slaughter-House

The Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution is unique among constitutional provisions in that some scholars believe it was substantially read out of the Constitution in a 5–4 decision of the Supreme Court in the Slaughter-House Cases of 1873.^[12] The Clause has remained virtually dormant since, but in 2010 this clause was the basis for the fifth and deciding vote in the case of McDonald v. Chicago, regarding application of the Second Amendment of the United States Constitution to the states.

In the Slaughter-House Cases the court recognized two types of citizenship. The rights citizens have by being citizens of the United States are covered under the Privileges or Immunities Clause of the 14th Amendment, while the rights citizens have by being citizens of a state fall under the Privileges and Immunities Clause of Article Four.

The Supreme Court did not prevent application of the Bill of Rights to the states via the Privileges or Immunities Clause in Slaughter-House, but rather addressed whether a state monopoly statute violated the natural right of a person to do business and engage in his trade or vocation. In other words, no provision of the Bill of Rights was at issue in that case, nor any other right that followed under the U.S. Constitution.

In obiter dicta, Justice Miller's opinion in Slaughter-House went so far as to acknowledge that the privileges or immunities of a citizen of the United States include at least some rights listed in the first eight amendments: "The right to peaceably assemble and petition for redress of grievances...are rights of the citizen guaranteed by the Federal Constitution". The Privileges or Immunities Clause was perhaps originally intended to incorporate the first eight amendments of the Bill of Rights against the state governments, while also incorporating other constitutional rights against the state governments such as the privilege of the writ of habeas corpus. However, that incorporation has instead been achieved mostly by means of the Due Process Clause of the Fourteenth Amendment.

Post-Slaughter-House

In the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers intended the Privileges or Immunities Clause to apply the Bill of Rights against the states. Black argued that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from John Bingham's congressional statements.^[13] However, Black's position on the Privileges or Immunities Clause fell one vote short of a majority in the Adamson case.

Legal scholars disagree about the precise meaning of the Privileges or Immunities Clause, although there are some aspects that are less controversial than others. William Van Alstyne has characterized the coverage of the Privileges or Immunities Clause this way:^[14]

Each [citizen] was given the same constitutional immunity from abridging acts of state government as each was already recognized to possess from abridgment by Congress. What was previously forbidden only to Congress to do was, by the passage of the Fourteenth Amendment, made equally forbidden to any state.

Roger Pilon of the Cato Institute has said that the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment depends upon the meaning of its counterpart in Article IV: the Privileges and Immunities Clause. Pilon further urges that the Article IV Clause should be reinterpreted as protecting a wide variety of natural rights, despite "its more recent history of interpretation or enforcement".^[15]

On the other hand, Kurt Lash of the University of Illinois College of Law has argued that, at the time of the adoption of the Fourteenth Amendment, the privileges and immunities of "citizens of the United States" as referred to in the Fourteenth Amendment were understood as a class distinct from the privileges and immunities of "Citizens in the several States" as referred to in Article IV. Under this interpretation of the Privileges or Immunities Clause as an "antebellum term of art", Slaughter-House is consistent with the original meaning of the Fourteenth Amendment.^[16]

Like Roger Pilon, some of the framers of the Privileges or Immunities Clause anticipated that it could protect (from state infringement) a broad range of rights far exceeding what had been enumerated in the Bill of Rights. However, as Pilon notes, that was often because of their interpretation of the Privileges and Immunities Clause in the original unamended Constitution. Regarding that interpretation of the older clause, Justice Clarence Thomas has noted that the framers of the Fourteenth Amendment realized the Supreme Court had not yet "undertaken to define either the nature or extent of the privileges and immunities" in the original unamended Constitution.^[17] The framers of the Fourteenth Amendment left that matter of interpretation in the hands of the judiciary.

In the 2010 case of McDonald v. Chicago, Justice Thomas, while concurring with the majority in declaring the Second Amendment applicable to state and local governments, declared that he had reached the same conclusion only through the Privileges or Immunities Clause. Since no other justice, either in majority or dissent, attempted to question his rationale, this is considered by Randy Barnett as a revival of the Privileges or Immunities Clause.^[18]

Redundancy issues

One of the arguments against interpreting the Privileges or Immunities Clause as a requirement that the states comply with the Bill of Rights has been that such an interpretation would render the Due Process Clause of the Fourteenth Amendment redundant, due to the Fifth Amendment's Due Process Clause. Although constitutional scholars such as Raoul Berger have raised this question, Akhil Amar argues that the framers of the Fourteenth Amendment wanted to extend the due process right not only to citizens, but to all other persons as well, which required a separate Due Process Clause.^[19] The Fifth Amendment refers to "persons" and not "citizens" within its text, but it would only be incorporated by the Privileges or Immunities Clause as to citizens. An alternative or additional rationale for explicitly including the Due Process Clause in the Fourteenth Amendment is that the Privileges or Immunities Clause only forbids states from making or enforcing laws, and therefore does not bar states from harming people outside the legal process.

Another redundancy issue is posed by an interpretation of the Privileges or Immunities Clause that views it as simply a guarantee of equality. Proponents of that interpretation acknowledge that, "the natural response to this approach is to say that...any equality-based reading of the clause is redundant because the Equal Protection Clause provides the necessary ground and more".^[20]

Right to travel

The right of citizens to travel from one state to another was already protected by the Privileges and Immunities Clause of the original, unamended Constitution;^[21] even in Scott v. Sandford, the Supreme Court had already ruled that the Clause protected "the right to enter any other State whenever they [citizens] pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at any hour of the day or night without molestation," but no African-American could have this right.^[22] Moreover, the right to travel has additional components, such as the right to take up residence and become a citizen of a different state. The Fourteenth Amendment's Citizenship Clause addresses residency: "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".

In the 1999 case of Saenz v. Roe, Justice John Paul Stevens, writing for the majority, said that the "right to travel" also has a component protected by the Privileges or Immunities Clause of the Fourteenth Amendment:^[17]

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, 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."

Justice Samuel Freeman Miller had written in the Slaughter-House Cases that the right to become a citizen of a state by residing in the state "is conferred by the very article under consideration".^[12]

See also

• Oyama v. California, 332 U.S. 633 (1948).
• McDonald v. Chicago, 561 U.S. 742 (2010) [Justice Thomas' concurrence]

References

1. Lash, Kurt T. (2011). "The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment". Georgetown Law Journal 99: 329. SSRN 1561183.
2. Berger, Raoul (1997) [First published 1977]. "Chapter 3: The "privileges Or Immunities of a Citizen of the United States"". Government by Judiciary: The Transformation of the Fourteenth Amendment (2nd ed.). Liberty Fund. Preliminarily it will be useful to pull together a few strands that tie the privileges or immunities of §1 to the specific enumeration of the Civil Rights Act of 1866. There is first the correspondence to the Civil Rights Bill's "civil rights and immunities," "privileges" being narrower than "civil rights," which had been deleted at Bingham’s insistence. Second, Chairman Trumbull explained that the Bill had been patterned on the "privileges and immunities" of Article IV, §2, and its construction by Justice Washington. Third, in introducing the prototype of §1, Bingham said that the "privileges or immunities" had been drawn from Article IV; fourth, Senator Howard similarly referred back to the Article. Speaking after Howard, Senator Luke P. Poland stated that §1 "secures nothing beyond what was intended by" the original privileges and immunities provision. More important is the all but universal identification of §1 with the Civil Rights Act.
3. Curtis, Michael Kent (1986). No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Duke University Press. p. 62. ISBN 0-8223-0599-2.
4. Cong. Globe, 39th Cong., 1st Sess., 1088, 1095 (1866).
5. Cong. Globe, 39th Cong., 1st Sess., 2542 (1866), quoted in Adamson v. California, 332 U.S. 46, 92-118 (1947)
6. Senator Jacob Howard, Speech Introducing the Fourteenth Amendment, Speech Delivered in the U.S. Senate, May 23, 1866" via Yale University. Retrieved 2013-05-17.
7. On May 23, 1866. Howard said: "It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States....I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied." This comment by Howard was quoted in Adamson v. California, 332 U.S. 46.
8. Letter from "Madison", New York Times (November 15, 1866). This was the second of several parts by "Madison", and in the first part that author took a broad view of the rights already guaranteed by the Privileges and Immunities Clause in Article IV — rights with which Madison said "states cannot constitutionally interfere" according to his understanding of the Privileges and Immunities Clause. "Madison", New York Times (November 10, 1866). Madison also cited the case of Dred Scott v. Sandford as persuasive authority regarding the inability of states to make people citizens of the United States. Id.
9. Curtis, Michael Kent. No State Shall Abridge, the 14th Amendment and the Bill of Rights, p. 168 (Duke Univ. Press 1986).
10. Curtis, Michael Kent. "Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger", 16 Wake Forest L. Rev. 45 (1980). Bingham's full speech is here in the Congressional Globe.
11. Lash, Kurt (May 5, 2014). "Defining American privileges and immunities". The Washington Post. Retrieved May 8, 2014.
12. In Re Slaughter-House Cases, 83 U.S. 36 (1872)
13. Adamson v. California, 332 U.S. 46, 92-118 (1947)
14. Van Alstyne, William. The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236-1255 (1994)
15. Shankman, Kimberly and Pilon, Roger. Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government Cato Policy Analysis No. 326 (1998)
16. Lash, Kurt T. The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art (2009)
17. Saenz v. Roe, 526 U.S. 489 (1999). Several analyses of the Privileges or Immunities Clause were noted by Justice Thomas in the Saenz case, including these:
    • Currie, David. The Constitution in the Supreme Court 341-351 (1985) (Clause is an antidiscrimination provision)
    • Crosskey, William. Politics and the Constitution in the History of the United States, Volume 2, pp. 1089-1095 (1953) (Clause incorporates first eight amendments of the Bill of Rights)
    • Siegan, Bernard. Supreme Court's Constitution 46-71 (1987) (Clause guarantees Lockean conception of natural rights)
    • Ackerman, Bruce. Constitutional Politics/Constitutional Law, 99 Yale Law Journal 453, 521-536 (1989) (same)
    • Berger, Raoul. Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866)
    • Bork, Robert. The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot)
18. Barnett, Randy. Privileges or Immunities Clause alive again.
19. Amar, Akhil. The Bill of Rights and the Fourteenth Amendment, 101 Yale Law Journal 1193, 1224-1225 (1992).
20. Harrison, John. Reconstructing the Privileges or Immunities Clause, 101 Yale Law Journal 1385, 1418 (1992).
21. Paul v. Virginia, 75 U.S. 168 (1868): "it gives them the right of free ingress into other States, and egress from them."
22. 60 U.S. 393, 417 (1857).

External links

• Congressional Globe, 39th Congress, 1st Session, 1866.