Privileges or Immunities Clause

This page is about the Privileges or Immunities Clause of Fourteenth Amendment to the United States Constitution. For the related clause in Article Four, see Privileges and Immunities Clause

Text

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

Interpretation of the Clause

This provision of the Fourteenth Amendment to the United States Constitution is unique among constitutional provisions in that some scholars believe it was almost read out of the Constitution in a 5-4 decision of the Supreme Court in the Slaughterhouse Cases of 1873. The Clause has remained almost dormant since. Nevertheless, the Court in Slaughterhouse did not actually 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. In dicta, Justice Miller's opinion in Slaughterhouse 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 U.S. Bill of Rights against the state governments. However, that incorporation has instead been achieved mostly by means of substantive due process and procedural due process.

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.

Randy Barnett has also addressed this subject:

Just as the Fourteenth Amendment extended protection of the enumerated rights of the first eight amendments to violations by state governments, so too did it extend federal protection of the pre-existing unenumerated rights "retained by the people."

A problem arises in that, prior to the Fourteenth Amendment, federally respected privileges or immunities varied depending upon location. Throughout the states, the federal government had no power to criminalize various behaviors (e.g. murder and rape), and therefore those behaviors could be considered federal legal rights. However, in the federal district, Congress had plenary power, and did not have to rely upon things like the Commerce Clause or the Necessary and Proper Clause in order to enact local regulations. According to Andrew Hyman:

If the Privileges or Immunities Clause of the Fourteenth Amendment can confer ... rights that do not correspond to any of the constitutional rights already restraining federal action in Washington D.C. - then there is no limit to purported rights that can be discovered in the Privileges or Immunities Clause.

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 interpreted 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 orginal unamended Constitution. Justice Clarence Thomas, dissenting in the 1999 case of Saenz v. Roe, 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, and so the framers of the Fourteenth Amendment left that matter of interpretation in the hands of the judiciary.

Several additional analyses of the Privileges or Immunities Clause were noted by Justice Thomas in the Saenz case:

• Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an antidiscrimination provision)
• D. Currie, The Constitution in the Supreme Court 341-351 (1985) (same)
• 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089-1095 (1953) (Clause incorporates first eight amendments of the Bill of Rights)
• M. Curtis, No State Shall Abridge 100 (1986) (Clause protects the rights included in the Bill of Rights as well as other fundamental rights)
• B. Siegan, Supreme Court's Constitution 46-71 (1987) (Clause guarantees Lockean conception of natural rights)
• B. Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521-536 (1989) (same)
• R. Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866)
• R. Bork, The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot)

The full text of the congressional debates about the Privileges or Immunities Clause are available online. See Congressional Globe, 39th Congress, 1st Session, 1866.