The Case to Correctly Implement the Privileges or Immunities Clause to Fulfill its Intended Function
Introduction
The Privileges or Immunities Clause of the Fourteenth Amendment declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” [1]. Ratified in 1868, the Fourteenth Amendment was one of the Reconstruction Amendments added to the Constitution after the Civil War. Within a decade of the ratification of the Fourteenth Amendment, the Supreme Court made three major rulings that effectively erased the Clause from the Constitution, undermining the Clause’s original intent, and compensating by expanding the scope of other Fourteenth Amendment provisions. Even though the term “privileges or immunities” was rooted in a clearly defined set of rights, this language was too unclear for the liking of Supreme Court justices. Legal scholars and practitioners also rarely recognize the clear, original intent of the Privileges or Immunities Clause.
Justice Clarence Thomas’s concurring opinion in McDonald v. City of Chicago marked the first time a Supreme Court Justice applied the Privileges or Immunities Clause to protect a state infringing on one’s right of citizenship [2]. Plaintiffs in McDonald argued the Fourteenth Amendment's Privileges and Immunities or Due Process clauses incorporates the application of the Second Amendment to the states and gun bans in Illinois are unconstitutional. The Constitution does not enumerate the rights defined as “privileges” and “immunities.” The lack of enumeration in the Constitution creates a challenge for the Privileges and Immunities Clause. Federal judges shy away from dealing with the lists of “privileges” and “immunities” as they fear they may open a “Pandora’s box” of rights protected by the Fourteenth Amendment. In McDonald, justices echoed expressions of this concern. Justice Ruth Bader Ginsburg questioned, “But – just tell us the dimensions of what [the privileges and immunities] is… What unenumerated rights would we be declaring privileges and immunities under your conception of it?” [3]
Alan Gura, counsel for the plaintiff, failed to effectively argue the scope of the Privileges or Immunities Clause was sufficiently limited. He stated that “it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause,” and “we can’t give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment” [4]. Gura’s language resulted in every justice, except Thomas, refraining from basing their opinion off the Privileges of Immunities Clause. Gura did provide several sound points to advance the enforcement of the Privileges or Immunities Clause: “[The framers] gave some concrete examples. So I think there might be two [first eight amendments guarantees and those mentioned in the Civil Rights Act of 1866] categories of unenumerated rights…” [5]. However, Gura’s language describing the “impossibility” of presenting a full list of unenumerated rights ultimately complicated the issue enough for the justices. Having clearly explained boundaries surrounding the rights protected by the Privileges or Immunities Clause would eliminate worries of opening a Pandora’s box by implementing the Clause.
The concern that applying the Fourteenth Amendment would result in a never-ending list of rights to be protected is incorrect. This worry assumes a false conclusion about the Privileges or Immunities Clause: that the unenumerated rights protected by the Fourteenth Amendment have no clear boundaries and may be expanded to include nearly all personal privileges. The concern of allowing any personal privilege to potentially be protected by the Constitution is legitimate but does not apply to the Privileges or Immunities Clause. This article concludes that after recognizing the Fourteenth Amendment’s original meaning, the worry that a Pandora’s box of protected unenumerated rights will open becomes irrelevant.
In this article, I provide evidence supporting that (1) the Supreme Court virtually erased the Clause from the Constitution, (2) a sufficient scope of boundaries preventing a Pandora’s box is found by understanding the intended meaning of the Privileges or Immunities Clause, and (3) a route exists to reintegrate the clause into American jurisprudence. The first section establishes that the Supreme Court’s dismissal of the Privileges or Immunities Clause reveals widely held reservations concerning the clause. The second section argues the original intent of the framers illustrates a clear set of protected rights. The third section provides a potential roadmap for the clause to garner respect in legal practice.
Supreme Court’s Deconstruction of the Privileges or Immunities Clause
Within a decade following the ratification of the Fourteenth Amendment, the Supreme Court made three major rulings that effectively erased the Clause from the Constitution. The Court’s rulings in the Slaughterhouse Cases, Bradwell v. Illinois, and United States v. Cruikshank stripped the Privileges or Immunities Clause of virtually all its intended purpose [6].
The Slaughterhouse Cases (1873) was the first case to limit the scope of the Privileges or Immunities Clause. The Slaughterhouse Cases involved several butchers suing the state of Louisiana after the legislature ordered the forced closure of all slaughterhouses in New Orleans. The plaintiffs argued that their right to practice a trade was a “privilege or immunity” protected by the Fourteenth Amendment. The Court elected to not apply the Privileges or Immunities Clause to the case, interpreting the Clause in a limited way out of fear of altering the Constitution's original federalist meaning, which was crucial to U.S. democracy. In the majority opinion, the Court wrote, “[The Privileges or Immunities Clause’s] sole purpose 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” [7]. Ultimately, the court decided that the Privileges or Immunities Clause says that all United States citizens enjoy the rights held by citizens within a particular state, and nothing beyond those rights already granted to citizens.
Bradwell v. Illinois (1873) also held that the “privileges or immunities” of citizens of the United States were a narrow subset of federally created rights. In Bradwell, an aspiring female attorney sued Illinois, arguing that the Privileges or Immunities Clause protected her right to be admitted to the bar (Illinois did not allow females to join the bar.) However, the Court ruled against Bradwell. The justices recognized “there are privileges and immunities belonging to citizens of the United States” but claimed that “the right to admission to practice in the courts of a state is not one of them” [8]. The Court chose to operate under a limited set of “privileges or immunities”: those enumerated in the first eight amendments of the Constitution.
While the first two cases dealt with unenumerated rights protected by the Privileges or Immunities Clause, United States v. Cruikshank (1875) limited the scope of the Privileges or Immunities Clause, deciding that even rights in the first eight amendments of the Constitution were not free from infringement by state governments. In the majority opinion, Chief Justice Waite wrote, “This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone” [9]. The Court ruled that while Congress must refrain from infringing upon “privileges or immunities,” states can continue to do so.
These three major rulings effectively eliminated the Privileges or Immunities Clause from judicial interpretation of the Constitution. In turn, the Court relies heavily on two other Fourteenth Amendment clauses to evaluate the constitutionality of infringements upon rights: the Due Process Clause and the Equal Protections Clause. As a result, the Court relies too much on a single provision and expands the scope of these clauses from their intended purpose [10]. These issues could be avoided by implementing the intended function of the Privileges or Immunities Clause. The next section establishes the framer's intent of the clause.
Original Meaning of the Privileges or Immunities Clause
To understand how the Privileges or Immunities Clause poses no threat of opening a Pandora’s box of rights, an in-depth explanation of the desired function of the Amendment’s contemporaries is required. The original intent of the Privileges or Immunities Clause indicates a clearly defined set of rights. My analysis uses the “original meaning” theory of interpretation offered by Kurt Lash, a Constitutional historian: “the likely understanding of the text at the time of its adoption by competent speakers of the English language who were aware of the context in which the text was communicated for ratification” [11]. A Senate floor speech delivered by Michigan Senator Jacob Howard in May of 1866, during ratification debates of the Fourteenth Amendment in the U.S. Congress articulates the scope of the Clause. He explains how the Joint Committee that adopted the final draft of Section One of the Fourteenth Amendment defined the term “privileges and immunities” [12].
Howard began by referencing Corfield v. Coryell, an 1823 U.S. Federal Court case decided in the Third Circuit. Howard stated the case decided by Judge Washington may offer an idea of the judiciary’s opinion of the term. Howard argued that Washington’s words in the Corfield decision are the best judicial interpretation of the Privileges and Immunities Clause of Article IV [13]. The Clause, like the one in the Fourteenth Amendment, is often said to discuss “privileges and immunities” of citizenship. Corfield saw the question of whether the right to fish in public waters may be regulated by a state. Judge Washington ruled that regulating fishing is constitutional because fishing is not a “privilege or immunity.” However, he takes time to address what these “privileges and immunities” are. In his decision, the judge stated, the Constitution guarantees privileges and immunities that are “fundamental” to citizenship. He continued by categorizing these rights into three “general heads”: (1) “protection by the government’; (2) “the enjoyment of life and liberty, with the right to acquire and possess property of every kind”; and (3) “to pursue and obtain happiness and safety.” Subsequently, he listed specific rights constituting a “privilege and immunity,” such as “[taking], hold and [disposing] of property” and “exemption from higher taxes or impositions than are paid by the other citizens of each state” [14]. Washington’s pseudo-definition of “privileges and immunities” aligns with the intent of the framers of the Fourteenth Amendment as exemplified by Howard’s speech, a senator working on the construction of the amendment [15]..
In addition to Washington’s opinion in Corfield, Howard lists the first eight amendments as a source for the “privileges and immunities” of citizens. Howard claims that “to these privileges and immunities… should be added the personal rights guaranteed and secured by the first eight amendments of the Constitutions” [16]. The aforementioned “personal rights” are those commonly associated with the Bill of Rights. For example, the freedom of speech, right to bear arms, and right to trial by jury. Essentially, the Privileges or Immunities Clause applies the first eight amendments to state governments. Previously, the Bill of Rights only applied to the federal government. It is important to note that Howard did not indicate that the rights articulated by Washington in Corfield and those in the first eight amendments should be protected differently.
In addition to the floor speech delivered by Senator Howard, his handwritten notes refer to the Civil Rights Act of 1866 as an additional source of “privileges and immunities.” When discussing the liberties protected under the Privileges or Immunities Clause, Howard described them as “fundamental civil rights of citizens, whatever may be their nature or extent” [17].
Howard’s notes, the timing — the Civil Rights act was passed during national discussion over the Fourteenth Amendment — and other sundry factors have swayed many legal scholars, lawyers, and judges alike to adopt the view that the Privileges or Immunities Clause includes civil rights. The Civil Rights Act, as indicated by its own language, is “an act to protect all persons in the United States in their Civil Rights and furnish the means of their vindication.” The Act, like Washington’s words in Corfield, explicitly declares rights identified as “privileges and immunities.” A widespread consensus has emerged that the framers of the Fourteenth Amendment included the rights in the Act under the term “privileges and immunities” [18].
Despite the clear boundaries surrounding the rights protected by the Privileges or Immunities Clause, the concept of including rights un-enumerated by the Constitution contributed to the Clause being left idle in American jurisprudence [19]. The Clause guaranteed that rights articulated by Washington in Corfield, enumerated in the first eight amendments of the Constitution and included in the Civil Rights Act, are free from state government infringement. However, the Clause’s language allowed for the potential argument that any right may qualify as a “privilege and immunity,” receiving constitutional protection. As demonstrated shortly after the Fourteenth Amendment’s ratification, the Supreme Court refrained from implementing the protections provided by the Privileges or Immunities Clause. Thus, an important clause seeking to guarantee fundamental rights to all U.S. citizens essentially sits dormant in practice. Justice Thomas provided a glimpse into what reviving the clause may look like in McDonald.
Revisiting the Clause
In revisiting the Privileges or Immunities Clause, a sustainable implementation plan should be developed. I conclude the easiest route to implement the Clause is via judicial tests administered on a case-by-case basis. The best example of how judicial actors should implement the Clause is a concurring opinion in a 2010 Supreme Court case, and current judicial tests.
Justice Clarence Thomas based his decision in McDonald on the Privileges or Immunities Clause’s intended function, iterating many of my arguments. When discussing the possibility of opening a Pandora’s box, Thomas writes, “I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application” [20]. Thomas claims that the Court’s functional interpretation of the Privileges or Immunities Clause “should be no more ‘hazardous’ than interpreting these other constitutional provisions by using the same approach” [21]. Perhaps the most prominent explanation Thomas offered regarding the implementation of the Privileges or Immunities Clause was when he compared it to an interpretation of the Due Process Clause. For Thomas, interpreting the Clause is “far more likely to yield discernible answers than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support” [22].
The Supreme Court should establish a “test” to implement the Privileges or Immunities Clause. Currently, the court administers three tests to decide whether a constitutional right has been violated: the rational basis test, the intermediate scrutiny test, and the strict scrutiny test. The Court determines which test to apply to a case based on the degree to which the right is fundamental. For example, the strict scrutiny test, which applies to rights guaranteed by the Equal Protections Clause, states “the legislature must have passed the law to further a ‘compelling governmental interest,’ and must have narrowly tailored the law to achieve that interest” [23]. Given that the Privileges or Immunities Clause and the Equal Protections Clause both originate from the Fourteenth Amendment and bar the infringement of “fundamental” rights, the rights protected by the Fourteenth Amendment should be subject to the strict scrutiny test.
Thomas applied a prototype of a potential test utilized to implement the Privileges or Immunities Clause. First, Thomas identified that the right being violated fell into the clear boundaries meant by the framers of the Fourteenth Amendment. Subsequently, Thomas applied the strict scrutiny test to evaluate whether there had been a constitutional violation. A two-part test suffices to implement the Privileges or Immunities Clause, examining (1) if the right is a “privilege or immunity” as defined by the framer of the Fourteenth Amendment, and (2) if the case fails the strict scrutiny test. Such a test would eliminate the possibility of opening a Pandora’s box, uphold the Constitution’s intent, and respect U.S. federalism.
Conclusion
In conclusion, the Privileges or Immunities Clause lacks attention as it protects rights that are not enumerated by the Constitution. Many legal minds have feared opening a Pandora’s box of “privileges and immunities.” However, taking a step back and analyzing the framers’ original intent for the provision reveals how clear the boundaries of the “privileges and immunities” term are. The rights constitutionally protected from state infringement only originate from three sources: Judge Washington’s opinion in Corfield, the first eight amendments to the Constitution, and the Civil Rights Act of 1866.
Reorienting American jurisprudence to integrate the intended function of the Privileges or Immunities Clause would bring about positive benefits. Echoing Thomas, a reimplemented Privileges or Immunities Clause would be practical due to its likelihood to result in “discernible answers.” Thomas also hinted that the Privileges or Immunities Clause has a greater historical and textual basis than the Due Process Clause. In addition, a more concrete provision for applying the Bill of Rights to states may result in a stronger mandate upon states to respect the liberties guaranteed in the Bill of Rights. A primary intent of the Clause was to apply the Bill of Rights to states (Previously, the Bill of Rights only applied to the federal government.). Therefore, to save the application of the Bill of Rights from a potentially future ill-intended society from dismantling, strengthening the Constitutional approach to doing so is important. The Privileges or Immunities Clause is an important part of the Constitution that should not be ignored.
Bibliography
[1] U.S. Const. amend. XIV. Sec. 1. art. 1. cl. 2.
[2] 561 U.S. 742, (Supreme Court of the United States. 1872)
[3] Oral Arguments. McDonald v. Chicago, 561 U.S. 742, (Supreme Court of the United States. 1872).
[4] Oral Arguments. McDonald v. Chicago, 561 U.S. 742, (Supreme Court of the United States. 1872).
[5] Ibid.
[6] Barnett, Randy and Josh Blackman, “The Privileges or Immunities Clause.” 123-28
[7] Slaughterhouse Cases, 83 U.S. 36, (Supreme Court of the United States. 1872).
[8] Bradwell v. Illinois, 83 U.S. 130, (Supreme Court of the United States. 1872).
[9] United States v. Cruikshank, 92 U.S. 542, (Supreme Court of the United States. 1875).
[10] Barnett, Randy and Josh Blackman, “The History of the Thirteenth and Fourteenth Amendments.” 115-22.
[11] Lash, Kurt T. The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.
[12] Barnett, Randy. “Three Keys to the Original Meaning of the Privileges or Immunities Clause.”
[13] CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866). [14] Corfield v. Coryell, 6 Fed. Cas. 546 no. 3,3320 C.C.E.D.Pa., (3rd Cir. 1823).
[15] Barnett, Randy. “Three Keys to the Original Meaning of the Privileges or Immunities Clause.”
[16] CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866).
[17] Howard, Jacob. Handwritten Notes, U.S. Senate, Fourteenth Amendment’s Privileges or Immunities Clause (1866). https://perma.cc/V6HA-X2YK
[18] Barnett, Randy. “Three Keys to the Original Meaning of the Privileges or Immunities Clause.”
[19] Lash, Kurt T. The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.
[20] McDonald v. Chicago, 561 U.S. 742, (Supreme Court of the United States. 2010).
[21] Ibid.
[22] Ibid.
[23] “Strict Scrutiny.” Legal Information Institute. Cornell Law School.