Privileges or Immunities Clause

This page is about the Privileges or Immunities Clause of Fourteenth Amendment to the United States Constitution. For the related clause in Article Four, see Privileges and Immunities Clause

Text

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

Interpretation of the Clause

This provision of the Fourteenth Amendment to the United States Constitution is unique among constitutional provisions in that some scholars believe it was almost read out of the Constitution in a 5-4 decision of the Supreme Court (see Slaughterhouse Cases of 1873). The Clause has remained almost dormant since. Nevertheless, the Court in Slaughterhouse did not actually prevent application of the Bill of Rights to the states via the Privileges or Immunities Clause, but rather addressed whether the 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.

The Privileges or Immunities Clause was perhaps originally intended to incorporate the first eight amendments of the U.S. Bill of Rights against the state governments. However, that incorporation has instead been achieved mostly by means of substantive due process and procedural due process.

Legal scholars disagree about the meaning of the Privileges or Immunities Clause. Some theories were noted by Justice Thomas in dissent in the 1999 case of Saenz v. Roe:[1]

• Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an antidiscrimination provision)
• D. Currie, The Constitution in the Supreme Court 341-351 (1985) (same)
• 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089-1095 (1953) (Clause incorporates first eight amendments of the Bill of Rights)
• M. Curtis, No State Shall Abridge 100 (1986) (Clause protects the rights included in the Bill of Rights as well as other fundamental rights)
• B. Siegan, Supreme Court's Constitution 46-71 (1987) (Clause guarantees Lockean conception of natural rights)
• Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521-536 (1989) (same)
• R. Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866)
• R. Bork, The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot)

Another viewpoint is from A. Hyman, The Little Word "Due", <A HREF="http://www.uakron.edu/law/lawreview/v38num1.php">38 Akron Law Rev. 1,35-37 (2005)</A>:

Instead of applying some or all of the Bill of Rights amendments to the states via the Due Process Clause, that can be done via the Privileges or Immunities Clause of the Fourteenth Amendment, as the Framers intended....The long-dormant Privileges or Immunities Clause could be safely resuscitated if the courts recognize that it only encompasses those fundamental rights that already confer protection from the federal government; as the plain language of the Clause indicates, it simply bars states from violating the privileges or immunities of citizens of the United States.

The Cato Institue says that the clause is meant to prevent excessive or oppressive state legislation from being passed.

External links

• Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government (Cato Policy Analysis)
• Full text of Saenz v. Roe, 526 U.S. 489, courtesy of Findlaw.
• Full text of Slaughterhouse, 83 U.S. 36, courtesy of FindLaw.