Privileges or Immunities Under the Fourteenth Amendment

The Fourteenth Amendment’s Privileges or Immunities Clause is one of constitutional law’s great "what ifs." While largely dormant for over a century, it contains the latent power to reshape fundamental rights jurisprudence in America. Understanding its history, its near-death, and the compelling arguments for its revival is essential to grasping the ongoing debate about which rights the Constitution protects and how we justify them.

The Clause's Text and Original Promise

The Fourteenth Amendment, ratified in 1868, states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." On its face, this is a powerfully broad guarantee. To understand its potential, you must consider the historical context of its drafting. The Amendment was a direct response to the Black Codes enacted by Southern states after the Civil War, which sought to severely restrict the freedoms of newly freed African Americans.

The framers of the Amendment sought to constitutionalize the principles of the 1866 Civil Rights Act and to nationalize citizenship. The Citizenship Clause, which opens the Amendment, first declares that all persons born or naturalized in the U.S. are citizens. The Privileges or Immunities Clause that follows was intended to be the primary enforcement mechanism, protecting the substantive rights of that national citizenship from state infringement. Scholars pointing to this history argue the clause was meant to protect a robust set of fundamental rights, including those enumerated in the Bill of Rights and other unenumerated rights essential to free citizenship, from state abridgment.

The Slaughter-House Cases: A Dramatic Narrowing

The Supreme Court’s first major interpretation of the clause in the 1873 Slaughter-House Cases effectively defanged it for generations. The cases involved a Louisiana law granting a monopoly to a single slaughterhouse, which other butchers argued violated their right to practice their trade—a privilege of citizenship. In a 5-4 decision, the Court drew a sharp distinction between state and national citizenship.

The majority opinion, written by Justice Samuel Miller, held that the Privileges or Immunities Clause protected only those rights that owe their existence to the Federal government, its National character, its Constitution, or its laws. Examples given were the right to access federal seaports, to petition Congress, and to be protected on the high seas. All other civil rights, including the right to pursue a trade, remained under the control of state governments. This narrow construction rendered the clause a practical nullity, as the rights it was held to protect were rarely, if ever, threatened by states. This decision diverted the focus of constitutional protection to the Amendment’s Due Process and Equal Protection Clauses, a doctrinal path that continues to dominate today.

Scholarly Arguments for a Revival

For much of the 20th century, the clause was a constitutional relic. However, a significant scholarly movement, often associated with legal academics like John Hart Ely and Akhil Amar, has made powerful arguments for its revitalization. Their case rests on several pillars. First, they assert that the Slaughter-House decision was a profound misreading of the Amendment’s history and text, ignoring the clear intent of its framers to protect a broad panoply of fundamental rights against state action.

Second, they argue that reviving the clause would provide a more textually and structurally sound foundation for incorporation—the process of applying the Bill of Rights to the states. Currently, incorporation is achieved through the Fourteenth Amendment’s Due Process Clause (the "incorporation doctrine"). Critics call this "substantive due process," a concept some view as intellectually strained because the Due Process Clause is textually about procedure. Using the Privileges or Immunities Clause, which is explicitly about rights, would be a more honest and principled doctrinal home for protecting fundamental liberties from state infringement. This revival would not necessarily create new rights but would provide a clearer constitutional justification for the ones already protected.

The McDonald Concurrence: A Modern Catalyst

The scholarly debate moved from law reviews to the Supreme Court bench in the 2010 case McDonald v. City of Chicago, which incorporated the Second Amendment against the states. While the majority used the Due Process Clause, a pivotal concurring opinion by Justice Clarence Thomas, joined by no other justice, argued forcefully for using the Privileges or Immunities Clause instead.

Justice Thomas’s opinion conducted a thorough historical analysis, concluding that the right to keep and bear arms was understood to be a privilege of American citizenship in 1868. He explicitly called for reconsidering the Slaughter-House precedent, labeling its reasoning "strained" and "idiosyncratic." Although it was only a solo concurrence, its presence in a modern Supreme Court opinion signaled that the clause is no longer a purely academic interest. It planted a seed for future litigation and demonstrated that a plausible, originalist argument exists for breathing life back into this dormant text, making its potential revival a live doctrinal possibility.

Doctrinal Significance: What Could Change?

If the Privileges or Immunities Clause were revived, the practical and doctrinal consequences could be significant, though the exact scope is debated. First, it would likely solidify the incorporation of the Bill of Rights on a firmer textual foundation, potentially quieting long-standing criticisms of substantive due process. This would not undo incorporated rights but re-anchor them.

Second, and more controversially, it could open the door to recognizing additional unenumerated fundamental rights that are privileges of national citizenship. The clause’s language is not limited to the Bill of Rights. This could provide a pathway for recognizing rights related to political participation, travel, or other aspects of civic belonging that are logically tied to federal citizenship. However, this potential also raises concerns about judicial overreach. A revived clause would require the Court to develop a disciplined methodology for identifying which rights qualify as "privileges or immunities," a challenge that currently resides in the more controversial realm of substantive due process.

Common Pitfalls

When analyzing this clause, avoid these common misunderstandings:

1. Confusing it with the Privileges and Immunities Clause of Article IV. These are distinct provisions. Article IV’s Clause (sometimes called the Comity Clause) prevents a state from discriminating against citizens of other states in favor of its own. The Fourteenth Amendment’s Clause is a restriction on a state’s power over its own citizens, guaranteeing them the rights of national citizenship.

1. Assuming it is entirely meaningless today. While Slaughter-House narrowed it drastically, the clause is not a complete nullity. It has been cited in a few modern cases, such as Saenz v. Roe (1999), to protect the right to travel and become a citizen of a new state—a right the Court found stems from national citizenship. It remains a latent source of constitutional argument.

1. Equating revival with a guaranteed expansion of rights. A revived clause could simply re-base existing rights (like those in the Bill of Rights) on different textual grounds without creating new ones. Whether it leads to an expanded list of protected rights would depend entirely on how narrowly or broadly the Court defines the "privileges or immunities of citizens of the United States."

Summary

• The Privileges or Immunities Clause of the Fourteenth Amendment was originally intended to be a primary guarantee of fundamental rights for U.S. citizens against state governments.
• The 1873 Slaughter-House Cases effectively nullified the clause by limiting its protection to a narrow set of rights tied exclusively to federal citizenship, such as the right to petition Congress.
• Significant scholarly argument supports reviving the clause, contending it provides a more textually honest foundation for applying the Bill of Rights to the states than the currently used Due Process Clause.
• Justice Thomas’s concurrence in *McDonald v. Chicago brought this academic debate into Supreme Court jurisprudence, explicitly calling for a reconsideration of Slaughter-House* and demonstrating the clause’s potential as a live doctrinal tool.
• A revived clause could re-anchor existing incorporated rights and potentially provide a path for protecting other unenumerated rights tied to national citizenship, though its precise scope would be a major subject of judicial interpretation.