- Privileges or Immunities Clause
Amendment XIV, Section 1, Clause 2 of the
United States Constitutionis known as the Privileges or Immunities Clause. It states:
Drafting and adoption
The primary author of the Privileges "or" Immunities Clause was Congressman
John Binghamof 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."
February 3of 1866, a congressional committee known as the "Joint Committee of Fifteen" voted in favor of a draft constitutional amendment proposed by Bingham. [Curtis, Michael. " [http://books.google.com/books?vid=ISBN0822305992&id=ciRtcfdkF4kC&pg=PA62&lpg=PA62&dq=%22all+laws+which+shall+be+necessary+and+proper+to+secure+to+the+citizens+%22&sig=zW6GTcA8_bLLm2MMJCVi0Xb6uiM No State Shall Abridge: the Fourteenth Amendment and the Bill of Rights] " (Duke University Press 1986).] The draft constitutional amendment provided:
This language closely tracked the existing language in the Privileges and Immunities Clause. On
February 28of 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." [Cong. Globe, 39th Cong., 1st Sess., 1095 (1866).]
April 28of 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 Article Four. On May 10of 1866, in the closing debate on the House floor, Bingham explained:
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 13of 1866. It became part of the Constitution in July of 1868.
This provision of the Fourteenth Amendment to the
United States Constitutionis 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."In Re Slaughter-House Cases", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=83&invol=36 83 U.S. 36] (1872)] 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, but declined to address the issue of the incorporation of the Second Amendment to the states. [Balko, Radley. "A Somewhat Skeptical Take on Heller", [http://www.reason.com/blog/show/127227.html Reason Online] ]
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 Clauseof 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.
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: [Van Alstyne, William. "The Second Amendment and the Personal Right to Arms", [http://www.guncite.com/journals/vanalful.html 43 Duke L.J. 1236-1255 (1994)] ]
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 Pilonof the Cato Institutehas 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." [Shankman, Kimberly and Pilon, Roger. "Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government" [http://www.cato.org/pubs/pas/pa-326es.html Cato Policy Analysis No. 326] (1998)]
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."
Saenz v. Roe", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=526&page=489 526 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. " [http://oll.libertyfund.org/Home3/BookToCPage.php?recordID=0003 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)] The framers of the Fourteenth Amendment left that matter of interpretation in the hands of the judiciary.
1947case of " Adamson v. California", Supreme Court Justice Hugo Blackargued 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. [" Adamson v. California", [http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0332_0046_ZD.html 332 U.S. 46, 92-118] (1947)] However, Black's position on the Privileges or Immunities Clause fell one vote short of a majority in the "Adamson" case.
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 Clauseof the Fourteenth Amendment redundant, due to the Fifth Amendment's Due Process Clause. Although constitutional scholars such as Raoul Bergerhave 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. [Amar, Akhil. [http://www.saf.org/LawReviews/Amar1.html The Bill of Rights and the Fourteenth Amendment] , 101 "Yale Law Journal" 1193, 1224-1225 (1992).] 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 Clauseprovides the necessary ground and more." [Harrison, John. [http://home.sandiego.edu/~miker/Harrison1.doc Reconstructing the Privileges or Immunities Clause] , 101 "Yale Law Journal" 1385, 1418 (1992).]
Right to travel
The right to travel from one state to another was already protected by the
Privileges and Immunities Clauseof the original unamended Constitution. [" Paul v. Virginia", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=75&page=168 75 U.S. 168] (1868): "it gives them the right of free ingress into other States, and egress from them."] 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 Clauseaddresses 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:
* [http://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39 Congressional Globe, 39th Congress, 1st Session, 1866.]
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