17.2 14th Amendment Privileges or Immunities Clause
4 min read•july 30, 2024
The 's aimed to protect of national citizenship from state infringement. Ratified in 1868, it was designed to safeguard newly freed slaves and ensure equal protection under the law.
However, the 1873 narrowly interpreted the clause, limiting its effectiveness. This shifted focus to the Due Process and Equal Protection Clauses, sparking ongoing debate about reviving the Privileges or Immunities Clause to protect individual rights.
Historical context of the 14th Amendment Privileges or Immunities Clause
Ratification and purpose of the 14th Amendment
Top images from around the web for Ratification and purpose of the 14th Amendment
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
Reconstruction Amendments - Wikipedia View original
Is this image relevant?
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
1 of 3
Top images from around the web for Ratification and purpose of the 14th Amendment
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
Reconstruction Amendments - Wikipedia View original
Is this image relevant?
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
Fourteenth Amendment to the United States Constitution - Wikipedia View original
Is this image relevant?
1 of 3
- Ratified in 1868 as part of the Reconstruction Amendments following the Civil War
- Designed to protect the rights of newly freed slaves and ensure equal protection under the law
- Responded to the Black Codes and other discriminatory state laws that sought to limit the rights of newly freed slaves and other minorities (Jim Crow laws, literacy tests for voting)
- Aimed to address the lack of federal protection for individual rights against state infringement
The Privileges or Immunities Clause
- Found in Section 1 of the 14th Amendment
- States: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
- Intended to protect fundamental rights of national citizenship from state infringement (, right to due process, right to equal protection under the law)
- Seen as the primary vehicle for protecting individual rights against by the 14th Amendment's drafters (John Bingham, Jacob Howard)
- Sought to establish a federal standard for the protection of civil rights and liberties
Slaughter-House Cases and the 14th Amendment
Background of the Slaughter-House Cases
- Decided in 1873, the first major Supreme Court cases to interpret the 14th Amendment's Privileges or Immunities Clause
- Involved a challenge to a Louisiana law that granted a monopoly to a single slaughterhouse company
- Butchers argued that the law violated their right to practice their trade under the Privileges or Immunities Clause
- Presented an opportunity for the Supreme Court to define the scope and meaning of the Privileges or Immunities Clause
Supreme Court's narrow interpretation
- In a 5-4 decision, the Supreme Court narrowly interpreted the Privileges or Immunities Clause
- Held that the clause only protected rights of national citizenship (right to travel, access to federal courts), but not fundamental rights of state citizenship (right to practice a trade)
- Distinguished between rights of state citizenship and rights of national citizenship, finding that the 14th Amendment only protected the latter from state infringement
- Majority opinion, written by Justice Samuel Miller, expressed concern that a broad reading of the clause would give the federal government too much power over the states and alter the federal-state balance
Impact of Slaughter-House Cases on 14th Amendment Jurisprudence
Rendered the Privileges or Immunities Clause ineffective
- The Slaughter-House Cases effectively rendered the Privileges or Immunities Clause a dead letter
- Rarely invoked in subsequent cases to protect individual rights against state action
- Shifted the focus of 14th Amendment jurisprudence to the Due Process and Equal Protection Clauses, which became the primary vehicles for protecting individual rights in the 20th century (Roe v. Wade, Brown v. Board of Education)
Criticism of the Slaughter-House Cases
- Critics argue that the Slaughter-House Cases were wrongly decided and contrary to the original intent of the 14th Amendment's drafters
- The decision has been criticized for limiting the scope of the 14th Amendment and failing to protect the rights of newly freed slaves and other minorities from state discrimination
- Some scholars argue that the Slaughter-House Cases set back the development of civil rights law by several decades
- A more robust interpretation of the Privileges or Immunities Clause could have provided greater protection for individual rights
Revival of the 14th Amendment Privileges or Immunities Clause
Calls for a revival of the Privileges or Immunities Clause
- In recent years, some scholars and judges have called for a revival of the Privileges or Immunities Clause to protect fundamental rights (right to earn a living, right to keep and bear arms, right to travel)
- Proponents argue that the clause provides a more textually and historically grounded basis for protecting individual rights than the Due Process and Equal Protection Clauses
- The Due Process and Equal Protection Clauses have been criticized as being overly broad and subjective
Potential applications of a revived Privileges or Immunities Clause
- In (2010), Justice Clarence Thomas argued in a concurring opinion that the Privileges or Immunities Clause, not the Due Process Clause, should be the basis for incorporating the Second Amendment right to keep and bear arms against the states
- Some scholars have argued that a revived Privileges or Immunities Clause could provide greater protection for economic liberties, such as the right to pursue an occupation free from excessive government regulation
- A revived Privileges or Immunities Clause could potentially strengthen the protection of other fundamental rights, such as the right to privacy or the right to vote
Criticisms and challenges to reviving the Privileges or Immunities Clause
- Critics argue that a revived Privileges or Immunities Clause would give the federal judiciary too much power to strike down state laws
- Concerns that it could lead to a return to the Lochner era of economic substantive due process, where the Supreme Court struck down labor regulations and other progressive legislation
- The Supreme Court has not yet fully embraced a revival of the Privileges or Immunities Clause, but some justices have expressed interest in revisiting the Slaughter-House Cases and exploring the clause's potential for protecting individual rights in modern constitutional law
Key Terms to Review (18)
14th Amendment: The 14th Amendment is a significant provision in the United States Constitution that was ratified in 1868, primarily aimed at ensuring citizenship rights and equal protection under the law for all persons, particularly formerly enslaved individuals. This amendment is pivotal in expanding civil rights and has been instrumental in various landmark Supreme Court cases that address issues of equality, due process, and the privileges or immunities of citizens.
Civil Rights Movement: The Civil Rights Movement was a pivotal social and political movement in the United States during the 1950s and 1960s that aimed to end racial discrimination and ensure equal rights for African Americans. This movement challenged systemic racism and discrimination, leading to significant legislative changes and increased awareness about civil rights issues, connecting deeply with various constitutional principles and legal frameworks.
Fundamental Rights: Fundamental rights are basic human rights that are recognized as essential for the functioning of a democratic society and the protection of individual freedoms. They often include rights such as freedom of speech, religion, and due process, which are critical for ensuring justice and equality. These rights are protected by various provisions in the Constitution, emphasizing their importance in safeguarding personal liberties against government infringement.
Incorporation doctrine: The incorporation doctrine is a constitutional doctrine that ensures that the Bill of Rights applies to state governments through the Fourteenth Amendment's Due Process Clause. This doctrine is significant because it means that individual rights and freedoms protected by the federal Constitution cannot be infringed upon by state laws or actions. The incorporation process has been gradual, as the Supreme Court has selectively applied various amendments to the states over time, shaping the relationship between federal and state powers.
Living Constitution: The Living Constitution is a concept that views the Constitution as a dynamic document that evolves and adapts to contemporary societal needs and values, rather than being fixed or limited to its original meaning. This perspective allows for a more flexible interpretation, enabling the Constitution to address modern issues and reflect changing societal norms.
McDonald v. City of Chicago: McDonald v. City of Chicago is a landmark Supreme Court case decided in 2010 that incorporated the Second Amendment's right to keep and bear arms against state and local governments through the Fourteenth Amendment's Due Process Clause. This case is significant as it affirmed that the right to self-defense in one's home is a fundamental right, thus limiting the ability of states to impose stringent gun control laws.
Originalism: Originalism is a theory of constitutional interpretation that asserts the Constitution should be understood based on the original meaning or intent of its framers at the time it was ratified. This approach connects to various aspects of law, including the limits of judicial power, the amendment process, and the foundational principles of enumerated powers.
Privileges or Immunities Clause: The Privileges or Immunities Clause is a provision in the 14th Amendment of the U.S. Constitution that prohibits states from denying any person the privileges or immunities of citizenship. This clause aims to protect the rights of citizens, ensuring that they are treated equally and fairly across all states. It has been interpreted to safeguard certain fundamental rights from state interference, thus playing a crucial role in the development of civil rights jurisprudence.
Raoul Berger: Raoul Berger was a prominent legal scholar and constitutional theorist known for his advocacy of originalism and his criticism of judicial activism. His work emphasized the importance of interpreting the Constitution based on its original meaning at the time it was ratified, impacting discussions about state sovereignty, individual rights, and constitutional interpretation.
Rational Basis Test: The rational basis test is a standard of judicial review used by courts to evaluate laws and government actions that affect individuals' rights, specifically when it comes to classifications that do not involve suspect or quasi-suspect categories. It requires that the law in question must be rationally related to a legitimate government interest, allowing for broad legislative discretion in economic and social regulations.
Reconstruction Era: The Reconstruction Era refers to the period following the American Civil War from 1865 to 1877, during which the United States sought to reintegrate the Southern states that had seceded and redefine the legal status of African Americans. This era was marked by significant legislative changes, including the introduction of the 14th Amendment, which aimed to establish equal rights and protections under the law, and the tumultuous efforts to rebuild the South's economy and society.
Right to marry: The right to marry is a fundamental freedom that allows individuals to enter into a legally recognized union with another person. This right has been shaped by various legal interpretations and is closely linked to issues of equality, personal autonomy, and the recognition of marriage as a basic civil right under the law.
Right to travel: The right to travel refers to the constitutional guarantee that individuals have the freedom to move between states and across national borders without unreasonable restrictions. This fundamental right is often linked to personal liberty, and is derived from the Privileges or Immunities Clause of the 14th Amendment, which protects citizens against discrimination and ensures their ability to engage in interstate movement.
Selective Incorporation: Selective incorporation is a constitutional doctrine that ensures that certain protections in the Bill of Rights are applied to the states through the Due Process Clause of the 14th Amendment. This process gradually extended federal protections to individuals at the state level, recognizing that fundamental rights should not be infringed upon by state governments.
Slaughter-House Cases: The Slaughter-House Cases were a series of Supreme Court decisions in 1873 that significantly limited the scope of the 14th Amendment's Privileges or Immunities Clause. This landmark case arose from a Louisiana law that granted a monopoly to a single slaughterhouse, leading to legal challenges from other butchers who claimed their rights were violated. The rulings established that the Privileges or Immunities Clause only protected rights associated with federal citizenship, rather than state citizenship, thereby narrowing the protections intended for individuals post-Civil War.
State action: State action refers to actions taken by government entities or officials that can be subject to constitutional scrutiny under the U.S. Constitution. This concept is critical because it establishes when constitutional protections, such as those found in the 14th Amendment, apply to individuals, particularly in relation to their rights and liberties against government infringement. It ensures that private conduct does not receive the same level of constitutional protection as actions taken by the state, thus differentiating between public and private behavior.
Strict Scrutiny: Strict scrutiny is the highest standard of judicial review used by courts to evaluate laws or government actions that infringe upon fundamental rights or involve suspect classifications, such as race or religion. Under this standard, the government must demonstrate that the law serves a compelling state interest and is narrowly tailored to achieve that interest while using the least restrictive means possible.
William Winslow Crosskey: William Winslow Crosskey was a prominent legal scholar and constitutional law expert known for his significant contributions to the understanding of the Privileges or Immunities Clause of the 14th Amendment. His work emphasized the importance of the clause in protecting individual rights and restraining state power, challenging prevailing interpretations that limited its scope. Crosskey argued for a broader interpretation, advocating that the clause should guarantee fundamental rights against state infringement.