Privileges or Immunities Clause

Privileges or Immunities Clause
Name	Privileges or Immunities Clause
Jurisdiction	United States
Document	Fourteenth Amendment to the United States Constitution
Adopted	1868
Related	Due Process Clause, Equal Protection Clause

Privileges or Immunities Clause The Privileges or Immunities provision of the Fourteenth Amendment to the United States Constitution articulates protections for certain rights against abridgment by States of the United States. Located in Section 1 of the Fourteenth Amendment to the United States Constitution, it has been central to disputes involving citizenship, federalism, and civil rights from the Reconstruction era through contemporary litigation in the Supreme Court of the United States. Debates over its scope have involved notable figures and institutions including John Bingham, Thaddeus Stevens, Confederate States, United States Congress, and influential jurists such as William Strong and Slaughter-House Cases dissenters.

Background and Text

The clause appears in Section 1 of the Fourteenth Amendment to the United States Constitution immediately following the Citizenship Clause and preceding the Due Process Clause and the Equal Protection Clause. Drafted during the Reconstruction Era, authorship and floor debates involved Joint Committee on Reconstruction, House of Representatives, and legislators such as John Bingham and Jacob Howard. The operative sentence reads that no State of the United States shall make or enforce laws which abridge the privileges or immunities of citizens of the United States, a formulation shaped by antecedents like the Privileges and Immunities Clause of Article IV and interpretations in cases such as Barron v. Mayor and City Council of Baltimore and writings by Joseph Story. The text was ratified amid post‑Civil War measures including the Civil Rights Act of 1866 and the Reconstruction Acts.

Historical Origins and Antebellum Interpretations

Antebellum antecedents include arguments from constitutionalists like James Madison and litigants such as those in Corfield v. Coryell, which influenced framers including Oliver Wendell Holmes Sr. and commentators like St. George Tucker. Debates drew on English precedents such as the Magna Carta and Petition of Right, and on state constitutional provisions in Pennsylvania Constitution, Massachusetts Constitution, and New York Constitution. Abolitionist leaders and Congressional radicals including Charles Sumner and Frederick Douglass pressed for a clause broad enough to secure rights recognized in treaties like the Treaty of Guadalupe Hidalgo and statutes such as the Naturalization Act of 1790. Antebellum Supreme Court decisions including Dred Scott v. Sandford and Prigg v. Pennsylvania framed the postwar urgency to prevent states from abrogating federal citizenship rights.

Incorporation Debate and Fourteenth Amendment Jurisprudence

The incorporation debate pits advocates of incorporation via the Privileges or Immunities provision—invoking doctrines favored by scholars like Akhil Reed Amar and jurists such as Ruth Bader Ginsburg—against proponents of incorporation through the Due Process Clause as developed in decisions by Oliver Wendell Holmes Jr. and later applied by Benjamin Cardozo. Key theoretical frameworks involve constitutional interpretive approaches from figures like Antonin Scalia and Stephen Breyer. Scholars including Michael Kent Curtis and Saikrishna Prakash dispute textual and historical readings, while commentators like Akron Law Review authors and contributors to the Harvard Law Review advance competing methodologies. Statutory analogues and international covenants such as the Universal Declaration of Human Rights have occasionally informed arguments in lower courts and state supreme courts including the California Supreme Court and the New York Court of Appeals.

Key Supreme Court Cases

The Supreme Court’s 1873 decision in the Slaughter-House Cases drastically narrowed the Clause’s reach, prompting dissents by jurists like Joseph P. Bradley and commentary by Edmund Randolph. Subsequent pivotal decisions include United States v. Cruikshank (1876), which limited federal protection of civil rights; The Civil Rights Cases (1883), trimming congressional enforcement; and more modern invocations in United States v. Morrison (2000) and McDonald v. Chicago (2010), where a plurality and concurring opinions debated whether incorporation of the Second Amendment to the United States Constitution should proceed under the Privileges or Immunities provision or the Due Process Clause. Other influential opinions from the Court involve justices such as John Marshall Harlan II, Warren E. Burger, and Antonin Scalia, whose concurrences and dissents shaped doctrine regarding state action, citizenship, and federal remedies.

Comparative and State-Level Applications

State courts and constitutions have sometimes provided broader protections than federal doctrine, with decisions in jurisdictions like California, New York, Massachusetts, and Illinois invoking state privileges provisions or parallel clauses. Comparative constitutional scholarship contrasts the Clause with rights protections in instruments such as the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights, and the German Basic Law (Grundgesetz), highlighting differences in incorporation, justiciability, and federalism. Municipal ordinances and state statutes, plus litigation in venues such as the United States Court of Appeals for the Ninth Circuit and the United States District Court for the Southern District of New York, reflect diverse remedial approaches to alleged abridgments of national citizenship privileges.

Scholarly Debates and Legal Criticism

Academic dispute centers on textualist and historical readings by scholars like Garry Wills and Herman Belz versus proponents of substantive privileges by Philip Hamburger and David P. Currie. Critics argue the Clause’s language is vague or redundant relative to the Due Process Clause and Equal Protection Clause, while advocates maintain it is a distinct source for protecting rights such as interstate travel, access to federal institutions, and national citizenship entitlements. Debates engage methodologies from legal realism, originalism, and historical jurisprudence, and involve policy discussions in forums like the Yale Law Journal, Columbia Law Review, and the University of Chicago Law Review.

Category:United States constitutional law