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The Slaughterhouse Cases, decided in 1873, limited the rights protected by the Fourteenth Amendment’s Privileges or Immunities Clause to those that “owe their existence to the Federal government, its National Character, its Constitution, or its laws.” These limited rights included the ability to petition the government for redress and to use the navigable waters of the United States. Despite a general understanding among scholars and jurists that the Slaughter-House Cases misinterpreted the phrase “privileges or immunities,” the Supreme Court has never revisited the clause. Instead, it has opted to protect rights primarily through the Fourteenth Amendment’s Due Process and Equal Protection clauses.
Many originalists oppose revisiting the Privileges or Immunities Clause because of the perceived indeterminacy of what rights it protects. But is the clause a Pandora’s Box that might unleash judicially crafted rights beyond the non-originalist’s wildest imagination? Or is it a prescription for ending the ever-expanding rights of substantive due process?
The background principles that shaped the clause’s original public meaning make the answer to these questions clear: The Privileges or Immunities Clause authorizes the federal government to protect the limited rights contained within the Comity Clause and the rights contained within the first eight amendments against state interference.
The Privileges or Immunities Clause Protects the Rights of the Comity Clause
To understand the original public meaning of “privileges or immunities,” one must understand Comity Clause jurisprudence, its relationship with Dred Scott, and the goals of the Reconstruction Congress.
The rights of the Comity Clause were well-defined leading up to the ratification of the Fourteenth Amendment. The clause, located in Article IV, Section 2, states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Articles of Confederation contained a nearly identical clause that listed the rights it protected, and Justice Chase, in the 1797 Maryland Supreme Court case Campbell v. Morris, grafted the Articles’ list onto the Comity Clause.
Justice Washington slightly expanded on Campbell in the 1823 U.S. Circuit Court of Pennsylvania case Corfield v. Coryell, which, for the drafters of the Fourteenth Amendment, served as the definitive exposition of the rights protected by the Comity Clause. These rights included the rights to “acquire and possess property,” “to pass through, or to reside in any other state, for purpose of trade, agriculture, professional pursuits, or otherwise,” “to claim the benefit of the writ of habeas corpus,” “to institute and maintain actions of any kind in the courts of the state,” “to take, hold, and dispose of property,” and to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.”
While the Dred Scott opinion maintained the Campbell-Corfield definition of “privileges and immunities,” the case altered the operation of the Comity Clause. Campbell held that the rights protected by the Comity Clause were the rights of state citizens. Dred Scott, in contrast, held that the rights protected were the rights of federal citizens. The decision then asserted that, because slaves and their descendants could never be federal citizens, they were not entitled to the rights of the Comity Clause.
A decade later, the Reconstruction Congress sought to overturn Dred Scott. It first attempted to do so through the Civil Rights Act of 1866. This act conferred federal citizenship onto African Americans and provided protection for a limited, explicit set of rights—a list that closely resembled those rights protected by the Comity Clause. However, given the prospect of judicial review and the specter of future Democratic majorities, it became clear that such rights needed constitutional protection.
Enter the Fourteenth Amendment. The amendment mimicked the Civil Rights Act in two ways. First, it conferred federal citizenship on “all persons born or naturalized in the United States and subject to the jurisdiction thereof.” Thus, the amendment undermined Dred Scott’s holding that African Americans could never be federal citizens. Second, the amendment forbade states from making or enforcing any law that abridged “the privileges or immunities” of United States citizens.
But, unlike the Civil Rights Act, the amendment did not list the rights it protected. Instead, Congress, operating within the Dred Scott framework, simply assumed that the rights of a federal citizen included the privileges and immunities of the Comity Clause. Thus, by conferring federal citizenship on African Americans, the Fourteenth Amendment gave African Americans what Dred Scott took away—the rights of the Comity Clause. Moreover, it authorized the federal government to enforce these rights.
The Privileges or Immunities Clause Protects the Rights of the Bill of Rights
Unlike the Fourteenth Amendment’s Due Process Clause that copied the Fifth Amendment’s Due Process Clause, the Reconstruction Congress did not choose to copy the Comity Clause’s language. This deviation reveals the Reconstruction Congress’s desire to protect more than just the rights of the Comity Clause. In fact, the historical context of the Reconstruction Congress suggests that the Privileges or Immunities Clause extended its protections to the Bill of Rights.
In Dred Scott, Justice Taney suggested that, in addition to the rights of the Comity Clause, the rights of United States citizens included those contained within the first eight amendments of the federal Constitution. Consequently, in addition to withholding the rights of the Comity Clause, the Dred Scott decision also withheld the rights of the Bill of Rights from slaves and their descendants.
The congressional debates surrounding the amendment confirm that the Reconstruction Congress operated with this historical fact in mind. The original drafter of the amendment, Representative Bingham, stated that he sought to enforce the Bill of Rights against the states. Moreover, several other key congressmen also noted that this amendment would prohibit the states from abridging the rights of the first eight amendments. For instance, Senator Jacob Howard of Michigan, when he introduced the amendment to the Senate, suggested that, apart from incorporating the rights included in the Corfield decision, “[t]o these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.”
Thus, by conferring federal citizenship onto African Americans and providing explicit protection for the “privileges or immunities” of United States citizens, the Reconstruction Congress understood the language to protect not only the rights of the Comity Clause, but also the rights of the first eight amendments against state infringement.
This interpretation also fits well with the precise language of the Fourteenth Amendment’s other clauses. The Privileges or Immunities Clause secures the rights that fall under the Comity Clause and the first eight amendments for all United States citizens. However, the amendment safeguards the very basic rights of due process and the equal protection of laws for “any person within [a state’s] jurisdiction.” Thus, each clause serves a distinct purpose.
Justice Thomas has argued that courts should shift their rights jurisprudence away from substantive due process and towards the Privileges or Immunities Clause. A successful shift would end substantive due process and provide a textual justification for the incorporation doctrine.