Privileges or Immunities Clause

Privileges or Immunities Clause – Overview

Privileges or Immunities Clause

Privileges or Immunities Clause

The Privileges or Immunities Clause of the Fourteenth Amendment is the first and most important part of a legal trinity intended to achieve one objective: securing certain fundamental rights for blacks and recently emancipated slaves. The first part of this trinity, the Privileges or Immunities Clause, is the clause that encompasses the fundamental rights protected by the Fourteenth Amendment as a whole.

As described by Raoul Berger, “the three clauses of the [Fourteenth] Amendment were a trinity, three facets of one and the same purpose… the privileges or immunities clause conferred substantive rights which were to be secured through the medium of two adjective rights: the equal protection clause outlawed statutory, the due process clause judicial, discrimination with respect to those substantive rights.”

The Privileges or Immunities Clause of the Fourteenth Amendment was intended to “constitutionalize” the enumerated rights found in Section 1 of the Civil Rights Act of 1866. These enumerated rights from the Civil Rights Act were the result of a calculated response by Congress to eliminate the Black Codes (state laws) that arose in the aftermath of the Thirteenth Amendment and the abolition of the Slave Codes. State legislatures were perceived to have designed the Black Codes to return blacks and recently emancipated slaves to a defacto form of slavery.

The Civil Rights Act of 1866 was designed to prevent this from happening by guaranteeing certain basic, fundamental rights to blacks. These rights included the right, “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.”

Following passage of the Civil Rights Act, concerns were raised that the legislation could be repealed by a subsequent Congress, or that the legislation could be struck down as being unconstitutional (since Congress did not have the authority to pass this legislation pursuant to its enumerated powers). As such, Congress began drafting what would become Section 1 of the Fourteenth Amendment. The words, “Privileges or Immunities” were used as a term of art to constitutionalize the enumerated rights from the Civil Rights Act because those rights were virtually identical to those rights extended to white persons traveling between states under the Privileges and Immunities Clause of Article 4, Section 2. As such, when discussing what rights are protected by the Fourteenth Amendment, the inquiry goes no further than the Privileges or Immunities Clause, the Privileges and Immunities Clause, and Section 1 of the Civil Rights Act of 1866.

What you find when analyzing these protected rights is that these fundamental rights did not include social and political rights. As such, the Fourteenth Amendment did not extend the right to vote to blacks, or prohibit segregation in schools, or put an end to a whole host of other social injustices and inequalities. The point is that the rights extended to protect blacks by Section 1 of the Fourteenth Amendment were very limited in scope and only covered the most basic fundamental rights.

Rights Protected by the Privileges or Immunities Clause

The rights extended to blacks and recently emancipated slaves by the Privileges or Immunities Clause of the Fourteenth Amendment can be found by looking at two sources: First, the enumerated rights contained in the Civil Rights Act of 1866. Second, the history and meaning of the rights protected by the Privileges and Immunities Clause of Article 4, Section 2. Each source is discussed below in greater detail. In short, these fundamental rights include the right, “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.”

Civil Rights Act of 1866

The Civil Rights Act of 1866 was specifically designed to defeat and eliminate Black Codes enacted by various states in the Union (but primarily in the southern states where most blacks lived). Republicans in Congress believed the Black Codes were designed to return blacks to subordinate status under the antebellum slave codes. As such, Congress sought to protect the fundamental rights of free blacks and recently emancipated slaves through appropriate legislation. The result was the Civil Rights Act of 1866.

The Civil Rights Act of 1866, principally modeled to include the rights contained in the Privileges and Immunities Clause of Article 4, Section 2, is essentially a fleshed out version of Section 1 of the Fourteenth Amendment. The Fourteenth Amendment was ultimately “ratified” in 1868 to “constitutionalize” the Civil Rights Act of 1866 and to place these fundamental protections for blacks beyond repeal by subsequent Congresses. For our purposes, we can look to the Civil Rights Act of 1866 to determine what specific rights were protected by the Privileges or Immunities Clause of the Fourteenth Amendment.

Section 1 of the Civil Rights Act of 1866 says, “all persons born in the United States… are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude… shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens” As such, these were the basic, fundamental rights of free blacks and recently emancipated slaves that were protected from abridgment by the state governments.

Why weren’t these explicit, enumerated rights expressly added to Section 1 of the Fourteenth Amendment? Simply for purposes of compression and avoiding the verbose complexities of a convoluted, statutory code. This concise and compressed approach, using the term of art, “privileges or immunities” to describe these rights, was generally understood and deemed sufficient by the thirty-ninth Congress.

Privileges and Immunities Clause of Article 4, Section 2

In its simplest terms, the Privileges or Immunities Clause of the Fourteenth Amendment was meant to afford blacks the same rights and legal protections that white people from out of state would receive under the Privileges and Immunities Clause of Article 4, Section 2. In this way, blacks and recently emancipated slaves, even within their home states, would only receive the same legal protections afforded to those white persons visiting from other states. Privileges or Immunities did not afford blacks or recently emancipated slaves the same political or social rights in their home states that were afforded to white persons within their home states.

Historical Background on Privileges and Immunities

In drafting the Constitution, the words, “Privileges and Immunities” from Article 4, Section 2 were brought over from common language used in European treaties to ensure citizens from one country would be afforded local rights and protections in another country. These local rights and protections afforded visitors from other countries were not all inclusive. For example, someone from England could not travel to France and vote in a French election like a French citizen could. The extension of protections only covered certain basic fundamental rights.

In its most basic form, these basic, fundamental rights can be broken down into life, liberty and property. These basic rights can be further parsed down to include personal security, freedom of locomotion/movement, and ownership, control and disposition of property.

Domestic Example

The Privileges and Immunities Clause of Article 4, Section 2 affords a citizen from California the same rights as those afforded to citizens of Texas while the California citizen is living in or traveling through Texas. However, these rights are not unlimited. For example, the citizen from California would not be entitled to vote in a Texas election, nor would the California citizen be entitled to government “welfare” assistance in Texas. The rationale is that the right to vote and receipt of government assistance, among other so-called rights, are not afforded to all citizens, so those rights do not have to be extended to citizens of other states.

Under this example, the Fourteenth Amendment’s Privileges or Immunities Clause essentially guaranteed black citizens from Texas the same rights as those extended to white people from California (or other states) while in Texas.

Clarification of the Scope of Privileges or Immunities

Two important points should be noted regarding the scope and protections of the Privileges or Immunities Clause of the Fourteenth Amendment.

Privileges or Immunities Clause Provided Minimum Protections for Blacks

First, the Privileges or Immunities Clause merely sets a minimum baseline for the protection of fundamental rights for free blacks and recently emancipated slaves. Theoretically, if states chose to, they could have expanded upon these rights and extended the same fundamental, political and social rights to blacks that were enjoyed by whites. As an example, by 1866, six states had extended blacks the political right to vote: Maine, Massachusetts, New Hampshire, New York (with qualifications), Rhode Island, and Vermont. However, the fundamental rights enumerated in the Civil Rights Act of 1866 and incorporated into the Privileges or Immunities Clause of the Fourteenth Amendment merely served as a baseline; as a way to eliminate the Black Codes which threatened a defacto return to the oppression of slavery.

Privileges or Immunities Could Be Restricted Uniformly

Second, as correctly stated by Justice Samuel Miller from the Slaughter-House Cases, the Privileges and Immunities Clause of Article 4, Section 2, does not, “control the powers of State governments over the rights of its own citizens.” The sole purpose of the Privileges and Immunities Clause, “was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” Worded more simply, states could limit or restrict fundamental rights afforded to its own citizens and to guests from other states, so long as the rights afforded between the two were equal.

Pursuant to this logic, under the Privileges or Immunities Clause of the Fourteenth Amendment, fundamental rights afforded to blacks could be limited or restricted, so long as those same rights were equally limited or restricted to whites and all other citizens.

Commentary: Privileges or Immunities and the Incorporation Doctrine

Many legal scholars assert the Privileges or Immunities Clause of the Fourteenth Amendment was the clause in Section 1 that should have been used to “incorporate,” or apply the federal Bill of Rights against the state governments. Legal scholars are often frustrated that the Supreme Court resorted to using the Due Process Clause of the Fourteenth Amendment to achieve this objective. As discussed above, Section 1 of the Fourteenth Amendment extended a relatively narrow set of preexisting fundamental rights to free blacks and recently emancipated slaves. In no way was the Privileges or Immunities Clause, let alone any other clause in the Fourteenth Amendment, meant to apply the Bill of Rights against the states.

For anyone interested in learning more about the Privileges or Immunities Clause, Columbia Law Professor, Philip Hamburger’s article from the Northwestern University Law Review thoroughly explains the matter. In addition, he explains why the Privileges or Immunities Clause was never intended to apply the federal Bill of Rights against the states via the Incorporation Doctrine. Additional background regarding the Fourteenth Amendment, Privileges or Immunities, and the Incorporation Doctrine can be found here, in Raoul Berger’s, Government by Judiciary: The Transformation of the Fourteenth Amendment.

Privileges or Immunities Clause – Modern Significance

As explained above, the scope of the fundamental rights protected from abridgement by the state governments was fairly limited. All powers not delegated to the federal government were reserved to the states. The only powers delegated to the federal government via the Fourteenth Amendment were those authorizing the federal government to protect the enumerated rights of black persons found in the Civil Rights Act of 1866 and in the historical meaning of the Privileges and Immunities Clause of Article 4, Section 2.

Today, the Supreme Court uses the Fourteenth Amendment as its basis for censoring state legislation that does not conform to the arbitrary, personal policy preferences of the judges. Cases have been ruled upon by the Supreme Court pertaining to the receipt of welfare benefits, sex discrimination, age discrimination, and a whole host of other issues. It’s a mystery as to how the Fourteenth Amendment can possibly pertain to matters beyond protecting the fundamental, enumerated rights of blacks and recently emancipated slaves.

Something to consider: If the Fourteenth Amendment was meant to empower the federal courts to determine the internal policies of the states with respect to matters like same-sex marriage, age discrimination, gender discrimination, etc…, then how could Section 2 of the Fourteenth Amendment have expressly allowed the states to deny blacks the right to vote? The Privileges or Immunities Clause, and the Fourteenth Amendment generally, was not designed to implement the radical social agenda it has been used for since the early twentieth century. As such, the federal courts have usurped these powers.

United States Constitution – Fourteenth Amendment – Privileges or Immunities Clause

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