Interpretation
The proposed Privileges and Immunities Clause under the Fourteenth Amendment was explained to their readers by The New York Times on November 15, 1866 as means to restrict the states in order to guarantee the freed slaves of African descent full freedom and prevent their virtual reenslavement:
We concluded the first number with the quotation of the First Section of the proposed Amending of the Constitution that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States."
We have seen, in the first number, what privileges and immunities were intended. The same authorities have held that the negro of African descent was not a citizen within the meaning of the term, as used in this and other articles of the Constitution; that he was not one of the "peoples" who ordained that sacred charter; that as a slave he was only three-fifth of a "number," but as a free man he was a whole number to be counted for representation, and a whole "person," who might be held to involuntary "service," and reclaimed in any State to which he might escape. The free colored man could have no protection in any slave State during the existence of the relation of master and slave.
He could not change his residence, nor travel at pleasure; he could neither buy, sell nor hold property; he was liable to be enslaved under various circumstances, and such laws were often enforced. Those who contend for "the Constitution as it is and the Union as it was," affect to acknowledge the freedom of the colored people; but, by a series of unfriendly legislation, many of the states construe that freedom to mean no acknowledgment of citizenship and the enjoyment of very few rights. Without enumerating the disgraceful particulars of legislation, it must be apparent to every candid mind, that the Constitution must be so amended as to place restrictions upon the States, or else the Negro must be virtually reenslaved.
The House Judiciary Committee interpreted the Privileges or Immunities Clause that the clause empowers Congress to enforce the Privileges and Immunities Clause in order to be an express limitation upon the powers of the States. The Committee also interpreted that the provisons of Privileges or Immunities Clause does not include the first eight provisions of the U.S. Bill of Rights, but rather only the provisions in the Privileges and Immunities Clause. On January 30, 1871, the House Judiciary Committee, led by John Bingham, released a House Report No. 22, authored by Bingham himself, and interpreted the Fourteenth’s privileges and immunities this way:
The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The Fourteenth Amendment, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for the enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.
The Privileges or Immunities Clause 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, but in 2010 this clause was the basis for the fifth and deciding vote in the case of McDonald v. Chicago, regarding application of the Second Amendment of the United States Constitution to the states.
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, Second (due process was relied upon by four of the five justices voting for incorporation), Third, Fourth, Fifth, Sixth, the Seventh when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part, and Eighth Amendment rights and protections as privileges of residents of 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 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."
On the other hand, Kurt Lash of the University of Illinois College of Law has argued that, at the time of the adoption of the Fourteenth Amendment, the privileges and immunities of "citizens of the United States" as referred to in the Fourteenth Amendment were understood as a class distinct from the privileges and immunities of "Citizens in the several States" as referred to in Article IV. Under this interpretation of the Privileges or Immunities Clause as an "antebellum term of art," Slaughter-House is consistent with the original meaning of the Fourteenth Amendment.
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.
In the 2010 case of McDonald v. Chicago, Supreme Court Justice Clarence Thomas, while concurring with the majority in declaring the Second Amendment applicable to state and local governments, declared he reached the same conclusion only through the Privileges or Immunities Clause. Since no other justice, either in majority or dissent, attempted to question his rationale, this is considered by some as a revival of the Privileges or Immunities Clause.
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