Privileges or Immunities Clause

The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It 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. Bingham's main inspiration was the Privileges and Immunities Clause in Article Four of the original unamended Constitution, which provided: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

On February 3 of 1866, a congressional committee known as the "Joint Committee of Fifteen" voted in favor of a draft constitutional amendment proposed by Bingham. 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 of 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 "[i]f the state laws do not interfere, those immunities follow under the Constitution."

Subsequently, on April 28 of 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, and instead the second draft used the language ("immunities of citizens of the United States") that Bingham had employed to express his opinion about the first draft. On May 10 of 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.

The Fourteenth Amendment was approved by the House later that day. The Senate subsequently added a sentence granting birthright citizenship on June 8, 1866. Congress then gave final approval to the Privileges or Immunities Clause when the House proposed the Fourteenth Amendment to the states for ratification on June 13 of 1866. It became part of the Constitution in July of 1868.

Interpretation

This provision 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. The Clause has remained virtually dormant since.

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 (e.g. 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, which has been used by a series of Supreme Court decisions such as Gitlow v. New York and Duncan v. Louisiana to incorporate the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendment rights and protections as privileges of residents of the States. The Second and Third Amendments have not (yet) been recognized as extending to State governments. In June 2008, the Supreme Court held in District of Columbia v. Heller that a blanket gun ban in Washington, D.C. was unconstitutional, in the process affirming the right to keep and bear arms as belonging to individual citizens and not States or the collective "People", but declined to address the issue of the incorporation of the Second Amendment 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 Court in Slaughter-House did not prevent application of the Bill of Rights to the states via the Privileges or Immunities Clause, 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 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."

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:

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.

If a citizen of Washington D.C. has a particular constitutional immunity, then, according to Van Alstyne, the Fourteenth Amendment extends that immunity to all citizens of all the states.

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."

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. The framers of the Fourteenth Amendment left that matter of interpretation in the hands of the judiciary.

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. However, Black's position on the Privileges or Immunities Clause fell one vote short of a majority in the Adamson case.

Early Interpretation

The most substantial barrier to the Supreme Court's interpretation of the the Privileges or Immunities of the Fourteenth Amendment as a vessel for the protections of the Bill of Rights, at least during the time immediately following the adoption of the Fourteenth Amendment, was that previous cases had already interpreted the same words much more narrowly. Even before the Bill of Rights were added as amendments to the Constitution, the original Constitution included a "privileges or immunities" provision in Article IV Section 2, presumably referring to the same language in the Articles of Confederation.

Because both clauses predated the Bill of Rights, it is understandable that a court would be skeptical of the argument that the two should stand for the same proposition. Moreover, Corfield v. Coryell[1], an early federal cases, had suggested that the protections of the Privileges or Immunities clause in Article IV were much narrower than those of the Bill of Rights--including unenumerated rights such as the right to travel, to hold property, and the writ of Habeas Corpus.

Nevertheless, there is a substantial body of evidence which suggest that, whatever the meaning of the Privileges or Immunities provision of Article IV, or that of the Articles of Confederation, may have been, the members of congress who drafted, debated, and the people who ratified the Fourteenth Amendment believed that its Privileges or Immunities clause would provide similar, if not identical, protections to individuals as against the states, as those individuals already enjoyed as against the federal government under the Bill of Rights.

One of the strongest pieces of evidence in this regard is the fact that the member of congress introducing the Fourteenth Amendment stated that it would extend the protection of the first eight amendments to the states, and then listed those amendments seriatim. Additionally, abolitionists and radical Republicans (the party introducing the Fourteenth Amendment) had taken to arguing that the Privileges or Immunities clause in Article IV of the Constitution extended the protections in the bill of rights to the states, in an effort to explain why the oppressive policies of the antebellum south were antithetical to the American political system. The merits of the particular legal arguments radical Republicans made at the time argument aside, it is illuminating as to the purpose and understanding that the very people who drafted the amendment pointed to both the Due Process clause of the Fifth Amendment and the Privileges and Immunities clause of the original Constitution, to justify their argument that the southern states had exceeded their proper authority.

Redundancy issues

Another argument 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, an answer has been detailed by Yale Law Professor Akhil Amar. According to Amar, 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. Although the Fifth Amendment refers to "persons" and not "citizens" within its text, it would only be incorporated by the Privileges or Immunities Clause as to citizens.

A similar 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."

Still another redundancy issue may reside in this clause echoing the requirments of the Supremacy Clause, which has been used for different ends, but might fulfill the same purpose.

Right to travel

The right to travel from one state to another was already protected by the Privileges and Immunities Clause of the original unamended Constitution. However, 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 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:

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 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."

External links

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