Privileges or Immunities Clause - Drafting and Adoption

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, which provided that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In the Civil Rights Act of 1866, Congress defined these privileges and immunities as:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

On February 3 of 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. 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, "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.”

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. On May 10 of 1866, in the closing debate on the House floor, Bingham explained:

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 1868.