Having briefly discussed the Amendment as a whole, let’s begin to focus in on the key provision, Section 1. By way of reminder, Section 1 provides:
“1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.”
For reasons I won’t go into now, the Supreme Court over the course of the Twentieth Century generally used the Due Process Clause (“nor shall any State deprive any person of life, liberty or property, without due process of law”) to apply provisions of the Bill of Rights to the states. Current legal scholarship, however, has generally identified the Privileges or Immunities Clause (“No State shall make or abridge the privileges or immunities of citizens of the United States”) as the basis for incorporation. It is to the Privileges or Immunities Clause we must therefore turn.
OK, you say, That’s clear as mud. The phrase “privileges or immunities of citizens of the United States” is totally opaque. Are you really telling me that that means “the Bill of Rights”? The short answer is that that is precisely what I’m telling you. But to understand how and why that is the case requires us to do some historical digging.
Where to begin. Hmmm. How about with a clause in the original Constitution that contains a suspiciously similar phrase? Article IV contains its own Privileges and Immunities Clause. (Note: the Article IV clause is the “Privileges and Immunities” Clause; the Fourteenth Amendment clause is the “Privileges or Immunities” Clause.) The first sentence of Article IV, Section 2 provides as follows:
“1. The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.”
Most constitutional historians now believe that, during the period when the Constitution was drafted, debated and ratified (1787-89), the Privileges and Immunities Clause was generally understood to have a limited meaning. At the time, it seems to have been generally understood to act, in effect, as an interstate traveler non-discrimination provision, requiring states to provide to visiting citizens of other states the same basic civil rights (although not political rights such the rights to vote, hold office, sit on juries or serve in the militia) they provided to their own citizens. See generally Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House 2005), pp. 249-54.
At first blush, such a limited definition of the Privileges and Immunities Clause would seem to cut strongly against the argument that the Privileges or Immunities Clause imposed the Bill of Rights on the states; and, indeed, critics of incorporation have made precisely that point. But we are missing a step. The question is not, What did “privileges and immunities” originally mean in 1787-89? Rather, the question is, what did that phrase mean to the drafters, proponents and opponents of the Fourteenth Amendment in 1866-68?
As we shall see next, the meaning of the term “privileges and immunities” was dramatically transformed during the first half of the Nineteenth Century. We will also have to consider the fact that the “privileges or immunities” protected by the Fourteenth Amendment are not just any old privileges and immunities in general, but rather “the privileges or immunities of citizens of the United States.”
Previous Posts:
The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
“1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.”
For reasons I won’t go into now, the Supreme Court over the course of the Twentieth Century generally used the Due Process Clause (“nor shall any State deprive any person of life, liberty or property, without due process of law”) to apply provisions of the Bill of Rights to the states. Current legal scholarship, however, has generally identified the Privileges or Immunities Clause (“No State shall make or abridge the privileges or immunities of citizens of the United States”) as the basis for incorporation. It is to the Privileges or Immunities Clause we must therefore turn.
OK, you say, That’s clear as mud. The phrase “privileges or immunities of citizens of the United States” is totally opaque. Are you really telling me that that means “the Bill of Rights”? The short answer is that that is precisely what I’m telling you. But to understand how and why that is the case requires us to do some historical digging.
Where to begin. Hmmm. How about with a clause in the original Constitution that contains a suspiciously similar phrase? Article IV contains its own Privileges and Immunities Clause. (Note: the Article IV clause is the “Privileges and Immunities” Clause; the Fourteenth Amendment clause is the “Privileges or Immunities” Clause.) The first sentence of Article IV, Section 2 provides as follows:
“1. The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.”
Most constitutional historians now believe that, during the period when the Constitution was drafted, debated and ratified (1787-89), the Privileges and Immunities Clause was generally understood to have a limited meaning. At the time, it seems to have been generally understood to act, in effect, as an interstate traveler non-discrimination provision, requiring states to provide to visiting citizens of other states the same basic civil rights (although not political rights such the rights to vote, hold office, sit on juries or serve in the militia) they provided to their own citizens. See generally Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House 2005), pp. 249-54.
At first blush, such a limited definition of the Privileges and Immunities Clause would seem to cut strongly against the argument that the Privileges or Immunities Clause imposed the Bill of Rights on the states; and, indeed, critics of incorporation have made precisely that point. But we are missing a step. The question is not, What did “privileges and immunities” originally mean in 1787-89? Rather, the question is, what did that phrase mean to the drafters, proponents and opponents of the Fourteenth Amendment in 1866-68?
As we shall see next, the meaning of the term “privileges and immunities” was dramatically transformed during the first half of the Nineteenth Century. We will also have to consider the fact that the “privileges or immunities” protected by the Fourteenth Amendment are not just any old privileges and immunities in general, but rather “the privileges or immunities of citizens of the United States.”
Previous Posts:
The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
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