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Privileges or Immunities Clause

The Privileges or Immunities Clause constitutes the second directive in Section One of the Fourteenth Amendment to the United States Constitution, ratified on July 9, 1868, proclaiming that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."^[1] Enacted amid Reconstruction to counter Southern states' Black Codes that curtailed the freedoms of emancipated slaves, the clause aimed to nationalize protections for citizens' fundamental rights, including those enumerated in the Bill of Rights and inherent liberties such as the right to pursue lawful callings, against state-level deprivations.^[2] Its framers, led by Representative John A. Bingham, drew from Article IV's analogous provision but expanded it to encompass a broader array of civil rights secured by federal authority, reflecting public understanding at ratification that it would enforce constitutional guarantees like speech, assembly, and bearing arms uniformly nationwide.^[3] The clause's practical force was swiftly curtailed by the Supreme Court's 5-4 ruling in the Slaughter-House Cases (1873), which confined its scope to a narrow set of rights tied exclusively to national citizenship—such as habeas corpus access, interstate travel protections, and navigation on federal waterways—while excluding most individual liberties from its purview as matters reserved to state control.^[4] This interpretation, rooted in concerns over federal overreach into local economic regulations like Louisiana's post-Civil War slaughterhouse monopoly, effectively dormantized the clause, redirecting incorporation of Bill of Rights protections to the more elastic Due Process Clause of the Fourteenth Amendment.^[5] Critics, including dissenting Justices in Slaughter-House and subsequent originalist analyses, have characterized the decision as a departure from the amendment's text and history, arguing it eviscerated the clause's role in remedying state violations of core citizenship entitlements amid persistent racial and economic discrimination.^[6] Revival efforts gained traction in the late twentieth century among constitutional scholars advocating textualist and originalist methodologies, who contend the clause originally encompassed unenumerated natural rights alongside enumerated ones, as discerned from antebellum common law and Reconstruction-era debates.^[7] A pivotal modern invocation appeared in Justice Clarence Thomas's solo concurrence in McDonald v. City of Chicago (2010), where he urged overruling Slaughter-House to incorporate the Second Amendment's individual right to keep and bear arms via the Privileges or Immunities Clause, positing it as the amendment's faithful vehicle for binding states to federal constitutional liberties without relying on substantive due process innovations. Though the McDonald majority opted for due process incorporation, Thomas's position underscored enduring debates over the clause's latent potential to restructure federalism by prioritizing direct textual enforcement of citizenship rights over judicially elaborated alternatives.^[8] Today, the clause remains a focal point for originalist jurisprudence, with proponents arguing its restoration could clarify and constrain selective incorporation doctrines while aligning adjudication more closely with the Fourteenth Amendment's postbellum causal imperatives.^[9]

Text and Antebellum Foundations

Wording and Constitutional Placement

The Privileges or Immunities Clause appears in Section 1 of the Fourteenth Amendment to the United States Constitution, which states in full: "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 deny to any person within its jurisdiction the equal protection of the laws."^[10]^[11] The clause specifically prohibits states from enacting or enforcing laws that infringe upon these rights, distinguishing it from protections afforded to "persons" under the subsequent Due Process and Equal Protection Clauses within the same section.^[12] As the second clause of Section 1—following the Citizenship Clause, which defines national and state citizenship for those born or naturalized in the United States and subject to its jurisdiction—the Privileges or Immunities Clause applies exclusively to "citizens of the United States," thereby limiting its scope to federal citizenship rights rather than broader personal entitlements.^[13] This placement integrates it into the Reconstruction Amendments, ratified on July 9, 1868, after congressional passage on June 13, 1866, as a mechanism to extend federal oversight over state actions post-Civil War.^[11]^[10] Unlike the Article IV, Section 2 privileges and immunities provision, which addresses interstate comity among state citizens, the Fourteenth Amendment's clause elevates national privileges against state abridgment, reflecting an intent to constitutionalize certain fundamental rights previously enumerated in statutes like the Civil Rights Act of 1866.^[14]

Pre-14th Amendment Privileges and Immunities (Article IV Clause)

The Privileges and Immunities Clause of Article IV, Section 2, adopted at the Constitutional Convention on September 15, 1787, states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."^[14] This provision drew from Article IV of the Articles of Confederation (ratified 1781), which similarly required states to grant non-citizens "all the Privileges and Immunities of free Citizens" to promote interstate harmony amid post-Revolutionary economic rivalries and discriminatory state laws, such as New York's 1787 imposts on out-of-state wood that prompted retaliatory measures from other states.^[15]^[16] The clause's primary purpose was to ensure comity among sovereign states by prohibiting substantial discrimination against out-of-state citizens in fundamental civil rights essential to national citizenship, thereby fostering a unified republic rather than a loose confederation prone to interstate conflicts.^[14]^[17] It did not mandate identical treatment in all respects—states retained authority to impose reasonable residency requirements or regulations for local welfare—but barred invidious distinctions that undermined the "fundamental principle of the revolution" of equal citizenship across state lines, as articulated in Federalist No. 80 by Alexander Hamilton.^[18]^[15] In antebellum judicial interpretation, the clause protected a narrow class of "fundamental" privileges and immunities tied to common-law rights of person and property, excluding political rights like suffrage or office-holding, which remained state-specific.^[19] The seminal case of Corfield v. Coryell (6 F. Cas. 546, Cir. Ct. D.N.J. 1823) provided the enduring definition, with Justice Bushrod Washington enumerating them as: protection by the government; the enjoyment of life and liberty with the right to acquire, possess, and protect property; the pursuit of safety and happiness; the right to travel, reside temporarily or permanently in any state and demand protection of person and property; access to ports, public institutions, and courts for remedies; and fair participation in basic economic pursuits like trade and husbandry, subject to non-discriminatory regulations.^[20]^[21] Washington's opinion upheld New Jersey's exclusion of non-residents from oyster fishing, a local resource regulated for citizens, illustrating that the clause permitted "non-fundamental" distinctions based on residency for state-specific interests.^[22] Subsequent pre-1868 cases reinforced this framework, emphasizing reciprocity and substantial equality in civil liberties without extending to welfare benefits, militia service exemptions, or professional licenses requiring prolonged local ties.^[23] For instance, courts invalidated statutes imposing higher fees or taxes on non-residents for basic commerce or litigation but deferred to states on internal affairs like poor relief or gaming laws, viewing the clause as a tool for economic integration rather than absolute uniformity.^[24] This interpretation rooted in English common law and colonial charters underscored causal incentives for interstate cooperation, as discriminatory practices risked retaliatory tariffs or boycotts that could fragment the Union economically.^[25] By 1868, the clause had established a baseline of national citizenship protections enforceable via federal courts, distinct from the later Fourteenth Amendment's focus on federal privileges against state abridgment.^[14]

Drafting and Ratification Process

Congressional Debates and Framing (1866)

In the House of Representatives of the 39th Congress, Representative John A. Bingham of Ohio, the principal architect of Section 1 of the Fourteenth Amendment, introduced and defended versions of the amendment emphasizing the Privileges or Immunities Clause as a means to protect citizens' fundamental rights against state infringement.^[26] On February 28, 1866, Bingham argued that the clause would secure "all privileges and immunities of citizens in the several States" by empowering Congress to enforce protections akin to those in the Bill of Rights, addressing constitutional defects that allowed states to deny such rights, as exemplified by the Supreme Court's ruling in Barron v. Baltimore (1833).^[27] Bingham framed the clause as declaratory of existing federal guarantees, distinguishing privileges of national citizenship—rooted in the Constitution and federal law—from those of mere state citizenship under Article IV, and intended to constitutionalize key provisions of the Civil Rights Act of 1866, which safeguarded rights to contract, sue, own property, and enjoy equal legal protections.^[28] Debates in the House, spanning late February to early May 1866, highlighted the clause's role in restraining states from abridging rights essential to republican citizenship, particularly for freed slaves facing Black Codes in the South.^[26] Bingham clarified on May 10, 1866, that the provision targeted "unconstitutional acts of any State" denying privileges, without supplanting state authority over local matters, and invoked natural law traditions to underscore its basis in inherent rights to life, liberty, and equality before the law.^[26] Opponents, including some Democrats, contended it unduly centralized power, but supporters like Representative Giles W. Hotchkiss emphasized its necessity for permanent safeguards beyond statutory acts like the Civil Rights Act, which critics argued exceeded congressional authority under the original Constitution.^[26] The House approved the joint resolution on May 10, 1866, by a vote of 120–32, reflecting Republican consensus on the clause as a bulwark for national citizenship rights.^[11] In the Senate, the clause underwent refinement before Senator Jacob M. Howard of Michigan presented the reconciled version on May 23, 1866, providing the most detailed contemporaneous explanation of its scope.^[29] Howard described the Privileges or Immunities Clause as restraining state power to abridge "privileges and immunities of citizens of the United States," incorporating protections from the first eight amendments of the Bill of Rights—such as freedoms of speech, press, assembly, and religion; the right to keep and bear arms; rights to habeas corpus, jury trial, and confrontation of witnesses; and safeguards against unreasonable searches, double jeopardy, self-incrimination, excessive bail, and cruel punishments.^[29] He supplemented these enumerated rights with fundamental civil liberties drawn from Corfield v. Coryell (1823), including state protection of person and property, pursuit of happiness, and equal access to justice, framing the clause as declaratory of pre-existing constitutional guarantees now enforceable against states via congressional power under Section 5.^[29] Howard's framing explicitly linked the clause to the Civil Rights Act of 1866 (passed April 9, 1866), positioning the amendment as a constitutional backstop to prevent its invalidation by courts or repeal by future Congresses, while extending protections to encompass both specific Bill of Rights liberties and broader rights of national citizenship essential to freedmen's equality.^[28] Senate debates, concluding with passage on June 8, 1866, by a 33–11 vote, reinforced this intent, with minimal alterations to the clause's wording despite concerns over federal overreach; the joint resolution returned to the House for concurrence and was approved on June 13, 1866.^[11] Overall, the 1866 debates portrayed the clause not as creating novel rights but as elevating longstanding federal privileges—tied to citizenship by birth or naturalization—above state discretion, motivated by post-Civil War imperatives to dismantle discriminatory laws and integrate former slaves into the national polity.^[29]

State Ratification and Contemporary Understandings (1867-1868)

The Fourteenth Amendment, having secured initial ratifications in 1866 from states including Connecticut on June 30, New Hampshire on July 7, and Tennessee on July 19, advanced significantly in early 1867 through approvals by additional Northern and Western states. Ohio ratified on January 4, 1867; New York on January 10, 1867; Kansas on January 11, 1867; Illinois on January 15, 1867; West Virginia, Michigan, and Minnesota on January 16, 1867; Indiana on January 23, 1867; and Oregon on February 18, 1867.^[30]^[31] These actions brought the total to 21 states by mid-1867, falling short of the required three-fourths threshold of 28 out of 37 states, prompting Congress to leverage the Reconstruction Acts of March 1867, which conditioned Southern readmission on ratification.^[11] Ratification culminated in 1868 amid enforced compliance in former Confederate states under military oversight. North Carolina approved on July 4, 1868; Arkansas on April 6, 1868 (initially under congressional scrutiny); Florida on June 9, 1868; Louisiana on July 9, 1868; and South Carolina on July 9, 1868, marking the 28th ratification and fulfilling the constitutional requirement.^[30]^[11] Secretary of State William Seward certified the amendment's adoption on July 28, 1868, despite subsequent rescissions by states like New York and Ohio, which Congress disregarded as invalid post-ratification threshold.^[11] These proceedings reflected partisan dynamics, with Republican-dominated legislatures affirming the amendment to secure federal guarantees against Southern Democratic resurgence. During these state deliberations, the Privileges or Immunities Clause was contemporaneously understood as a safeguard for the core civil rights of national citizens, primarily aimed at nullifying state-level Black Codes that discriminated against freedmen by denying equal access to rights such as contracting, property ownership, suing in court, and testifying in legal proceedings—rights explicitly enumerated in the Civil Rights Act of 1866, which the clause was designed to constitutionalize.^[6]^[32] Legislators in ratifying states, echoing congressional framers like John Bingham and Jacob Howard, portrayed it as extending federal protection to fundamental liberties inherent to citizenship, including nondiscriminatory enforcement of common-law rights and select Bill of Rights guarantees like habeas corpus and equal legal standing, while distinguishing these from mere state comity privileges under Article IV.^[6] Critics in debates, such as those in New York's legislature, contended it risked federal overreach into local affairs, but proponents countered that it merely enforced equality in preexisting citizen rights without novel inventions, aligning with natural law traditions of liberty and self-defense.^[33] This interpretation prioritized causal prevention of racial caste systems through empirical recourse to prewar republican principles, rather than abstract equality unrelated to verifiable citizenship protections.^[32]

Original Meaning and Intended Scope

Fundamental Rights Protected

The Privileges or Immunities Clause was intended to secure against state abridgment the core civil rights essential to citizenship, as codified in the Civil Rights Act of 1866, which granted all citizens, irrespective of race or prior servitude, "the same right... to make and enforce contracts, to sue, be parties, give evidence before the legislative, judicial, or military officers... or in any other case or controversy in which they may be interested... to inherit, purchase, lease, sell, hold, and convey real and personal property" and to enjoy "the full and equal benefit of all laws and proceedings for the security of person and property."^[34] These rights, enacted on April 9, 1866, under the Thirteenth Amendment's authority, addressed discriminatory Black Codes in Southern states post-Civil War and were explicitly linked to the Clause during congressional debates, with framers viewing the Amendment as a means to constitutionalize and perpetuate them beyond legislative repeal.^[35] Framers emphasized that these protections encompassed broader natural rights inherent to citizens of free governments, drawing from Justice Bushrod Washington's interpretation in Corfield v. Coryell (1823) of the Article IV Privileges and Immunities Clause, which identified "fundamental" privileges such as "the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole."^[35] Senator Jacob Howard, introducing the Fourteenth Amendment in the Senate on May 23, 1866, affirmed this scope, stating that the Clause safeguarded "privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free governments," including protection by established government, the right to subsistence through labor, habeas corpus, equal tax burdens, and military service exemption absent apportionment.^[29] Howard further clarified that these privileges incorporated the personal rights secured by the first eight amendments to the Constitution, enumerating examples such as freedom of speech, press, religion, assembly, and petition; the right to keep and bear arms; safeguards against unreasonable searches and seizures; protections for accused persons including speedy trial, confrontation of witnesses, compulsory process, counsel, and against self-incrimination; and prohibitions on excessive bail, fines, and cruel or unusual punishments.^[29] Representative John Bingham, the Clause's primary House architect, similarly described it as enforcing fundamental rights against state violation, empowering Congress to secure the Bill of Rights' liberties nationwide, as he stated in 1871 that the Amendment enforced "the bill of rights" by declaring them obligatory upon states.^[28] Ratification-era understandings in state conventions aligned with this expansive protection of citizenship rights, distinct from mere comity under Article IV, to remedy state failures in safeguarding freedmen's equal civil status.^[35]

Link to Civil Rights Act of 1866 and Natural Rights Tradition

The Civil Rights Act of 1866, enacted on April 9, 1866, declared all persons born in the United States (excluding untaxed Indians) to be citizens entitled to the "full and equal benefit of all laws and proceedings for the security of person and property" and specified rights including making and enforcing contracts, suing as parties or giving evidence in court, inheriting, purchasing, leasing, selling, holding, and conveying real and personal property, and enjoying the same liberties as white citizens. This legislation aimed to nullify Southern Black Codes that restricted freedmen's economic and personal freedoms post-Civil War, grounding these protections in Congress's authority under the Thirteenth Amendment to enforce abolition.^[6] Doubts about the Act's enduring constitutionality, given potential future congressional majorities or judicial challenges, prompted its incorporation into the Fourteenth Amendment.^[35] Framers of the Fourteenth Amendment explicitly tied the Privileges or Immunities Clause to the 1866 Act's enumerated rights, viewing the clause as constitutionalizing them to bind states irrevocably and empower federal enforcement.^[6] John Bingham, principal drafter of Section One, described the clause as securing "fundamental rights" against state infringement, aligning with the Act's civil equality provisions during congressional debates.^[29] Senator Jacob Howard, introducing the Amendment on May 23, 1866, affirmed that the clause protected a "mass of privileges, immunities, and rights" including those in the Act, rendering it immune to repeal as Congress reenacted the legislation in 1870 to affirm its post-ratification validity.^[35]^[36] This linkage ensured states could not abridge citizens' access to these core protections, distinguishing national citizenship rights from mere state-granted privileges. These rights drew from the natural rights tradition, emphasizing inherent, pre-political entitlements to life, liberty, property, and their pursuit, as articulated in antebellum jurisprudence like Corfield v. Coryell (1823), where Justice Bushrod Washington identified privileges and immunities as fundamental to free citizens under natural law principles.^[35] Howard invoked Corfield to frame the clause's scope, integrating such natural rights—viewed as inalienable and equally applicable to all citizens—with the Act's specifics, rather than limiting protection to enumerated federal rights or Bill of Rights incorporation alone.^[36] Republicans in the Thirty-Ninth Congress, including Bingham, contrasted these "inborn rights of every person" with narrower citizenship privileges, positioning the clause as a bulwark for natural rights against discriminatory state laws targeting freedmen.^[6] This originalist reading prioritizes the framers' intent to federalize equal enjoyment of natural civil rights, beyond mere anti-discrimination.^[35]

Judicial Interpretation

Early Post-Adoption Cases (1868-1872)

The Privileges or Immunities Clause received its first significant judicial attention in lower federal and state courts shortly after the Fourteenth Amendment's ratification on July 9, 1868.^[11] These early decisions revealed interpretive tensions, with some courts adopting broader protections for fundamental rights against state abridgment, while others confined the clause to rights explicitly rooted in the federal Constitution.^[6] In Live-Stock Dealers’ & Butchers’ Ass’n v. Crescent City Live-Stock Landing & Slaughter-House Co. (1870), a U.S. Circuit Court in Louisiana addressed a challenge to the state's slaughterhouse monopoly law, which restricted butchers' ability to operate independently.^[6] The court interpreted the clause as safeguarding essential privileges of national citizenship beyond those enumerated in Article IV, extending to unenumerated fundamental rights such as the pursuit of lawful callings free from arbitrary state interference.^[6] It reasoned that states could not invade core attributes of U.S. citizenship, observing: "What, then, are the essential privileges which belong to a citizen of the United States, as such, and which a state cannot by its laws invade? It may be difficult to enumerate or define them."^[6] This view aligned with framers' intent to protect natural rights traditions against Reconstruction-era state abuses, though the case predated and influenced the subsequent Supreme Court review of the same statute.^[6] By contrast, Garnes v. McCann, 21 Ohio St. 198 (1871), exemplified a narrower construction in the Ohio Supreme Court.^[6] The case arose when William Garnes, an African American citizen, sought admission for his children to a white public school, challenging Ohio's statute authorizing separate schools for black children as abridging U.S. citizens' privileges or immunities.^[37] The court upheld the law, holding that the clause protected only those privileges "derived from, or recognized by, the constitution of the United States," excluding state-regulated matters like common school access even if disparities existed.^[6]^[37] Justice Luther Day emphasized the clause's limited federal scope, stating: "The language of the clause... affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States."^[6] This decision effectively permitted "separate but equal" educational facilities under the clause, prioritizing state authority over local education policy.^[38] These cases highlighted nascent divisions in judicial understanding, with the circuit court's broader stance reflecting expectations of robust national citizenship protections and the state court's restraint foreshadowing limitations on the clause's reach.^[6] No Supreme Court rulings directly construed the clause until 1873, leaving lower courts to grapple with its application amid ongoing civil rights enforcement challenges.^[6]

Slaughter-House Cases (1873): Majority Ruling and Dissents

In the Slaughter-House Cases, formally Butchers' Benevolent Association of New Orleans v. Crescent City Livestock Landing and Slaughter-House Company, decided on April 14, 1873, the U.S. Supreme Court addressed challenges to a Louisiana statute granting a monopoly to a single corporation for livestock landing and slaughtering operations in New Orleans and surrounding areas, enacted in 1869 to address public health concerns from unregulated slaughtering amid prior cholera outbreaks.^[39] The butchers argued the law violated the Thirteenth Amendment's prohibition on involuntary servitude, as well as the Fourteenth Amendment's Privileges or Immunities, Due Process, and Equal Protection Clauses, by depriving them of their right to pursue lawful employment.^[5] In a 5-4 decision, Justice Samuel Freeman Miller's majority opinion upheld the statute, interpreting the Privileges or Immunities Clause narrowly to protect only those rights attaching to national citizenship, thereby leaving states broad authority over economic regulations like this monopoly under their traditional police powers.^[39] Miller's opinion emphasized a distinction between state and national citizenship created by the Fourteenth Amendment's first sentence, which declares individuals "citizens of the United States and of the State wherein they reside." He argued that the Privileges or Immunities Clause safeguards solely the "privileges and immunities of citizens of the United States" as against federal infringement, not the broader "fundamental rights" of state citizenship, which remain subject to state control.^[39] To illustrate, Miller enumerated limited national privileges, including access to seaports, protection on the high seas or foreign soil by the national government, the right to peaceably assemble for congressional petition, the privilege of habeas corpus, and the right to use navigable waters—rights tied to federal authority rather than common-law civil liberties like pursuing a trade.^[39] The majority rejected the butchers' claim that the monopoly abridged a federal privilege to labor freely, viewing the clause's primary aim as overturning Dred Scott v. Sandford (1857) by securing citizenship for freed slaves and protecting them from state discrimination on racial grounds, not federalizing all economic rights against states.^[39] This interpretation preserved state sovereignty over internal matters, including health regulations, as the statute was a valid exercise of police power to confine slaughtering to inspected facilities, not a badge of slavery under the Thirteenth Amendment.^[5] Four justices dissented, advocating a broader reading of the Privileges or Immunities Clause to protect fundamental civil rights against state abridgment for all citizens. Justice Stephen J. Field, joined initially by Justices Joseph P. Bradley and Noah H. Swayne, argued that the clause enshrined the "fundamental rights" of citizenship derived from natural law and pre-existing American jurisprudence, including the right to pursue a lawful employment or vocation without arbitrary monopoly grants that destroy livelihoods.^[40] Field contended that the majority's narrow view rendered the clause "vain and idle," as national citizenship rights were already protected pre-Fourteenth Amendment, and insisted the Reconstruction Amendments collectively aimed to secure personal liberty and equality against state oppression, extending beyond race to economic freedoms like labor, which he deemed inherent to citizenship and akin to rights against feudal restrictions.^[40] He criticized the monopoly as an unconstitutional infringement, not mere police regulation, since it eliminated competition without public necessity, violating the clause's intent to elevate fundamental rights above state discretion.^[5] Justice Bradley's separate dissent reinforced Field's view, asserting that the clause protected "the right to pursue an ordinary trade or calling" as a core privilege of citizenship, rooted in Anglo-American tradition and essential to free government, against state monopolies that confer exclusive privileges.^[41] He argued the Fourteenth Amendment nationalized these rights to prevent states from reinstituting oppression post-Civil War, rejecting the majority's bifurcation of citizenship as artificial and contrary to the clause's text, which applies to all citizens without limiting to federal-specific immunities.^[41] Justice Swayne concurred in the dissents of Field and Bradley, adding that the Reconstruction Amendments fundamentally altered federal-state relations by empowering Congress and courts to enforce civil rights uniformly, implying the clause's role in incorporating such protections against states.^[41] Collectively, the dissents highlighted the clause's potential as a vehicle for substantive limits on state economic interference, foreshadowing later substantive due process arguments, though the majority's ruling effectively sidelined the clause for over a century.^[42]

Post-Slaughter-House Narrowing (1873-1990s)

The Supreme Court's decision in the Slaughter-House Cases (1873) established a restrictive framework for the Privileges or Immunities Clause, distinguishing between rights of state citizenship—left to state protection—and a narrow category of national citizenship rights, such as the right to access seaports and navigable waters, demand protection on the high seas, and petition federal officers.^[4] This interpretation effectively excluded most fundamental rights, including economic liberties and Bill of Rights protections, from federal enforcement against states via the clause.^[43] Subsequent cases reinforced this narrowing, with the Court declining to expand the clause's scope despite occasional invocations. In Maxwell v. Dow (1900), the Court rejected the argument that the clause incorporated the Sixth Amendment's guarantee of a twelve-person jury trial against the states, holding that such procedural rights were not privileges or immunities of national citizenship. Similarly, in Twining v. New Jersey (1908), a divided Court ruled that the Fifth Amendment's privilege against self-incrimination did not apply to states through the clause, emphasizing that only rights distinctly tied to federal authority fell within its protection. These decisions aligned with the Slaughter-House precedent by confining the clause to insular federal prerogatives, avoiding its use for broader incorporation of constitutional rights.^[12] A temporary deviation appeared in Colgate v. Harvey (1935), where the Court invalidated a Vermont tax on income from loans made outside the state, interpreting the clause to safeguard the right of citizens to engage in foreign commerce as a fundamental federal privilege.^[44] However, this expansion was swiftly repudiated in Madden v. Kentucky (1940), where the Court overruled Colgate and upheld differential state taxation of resident and nonresident deposits, reaffirming that the clause did not constrain ordinary state regulatory or taxing powers unrelated to core national citizenship attributes.^[45] By the mid-20th century, the clause had entered a period of effective dormancy, as the Court turned to the Due Process Clause for selective incorporation of Bill of Rights protections against states—beginning with Gitlow v. New York (1925) for free speech—and for substantive review of economic regulations during the Lochner era (1897–1937).^[12] Invocations in cases like Hague v. Committee for Industrial Organization (1939) were marginal, with majorities relying on due process or equal protection instead. Through the late 20th century, the clause saw minimal application, invoked sporadically but without altering its narrowed status. For instance, in challenges to state restrictions on interstate movement or assembly, courts defaulted to other Fourteenth Amendment provisions or the dormant Commerce Clause.^[46] This judicial reticence persisted into the 1990s, leaving the clause as a vestigial element of Fourteenth Amendment doctrine, overshadowed by due process jurisprudence that absorbed much of its potential substantive content.^[12] The narrow reading thus channeled constitutional challenges away from the clause's originalist framing toward alternative mechanisms, contributing to its obscurity in federal-state rights disputes.^[47]

Late 20th and 21st Century Revivals (Saenz v. Roe, McDonald v. Chicago)

In Saenz v. Roe (1999), the Supreme Court invoked the Privileges or Immunities Clause to strike down a California statute that limited welfare benefits for new residents to the amount they received in their prior state of residence during their first year in California.^[48] The 7-2 majority, in an opinion by Justice John Paul Stevens, held that the law violated the right to travel, which it identified as a fundamental privilege of national citizenship protected by the clause.^[48] The Court delineated three distinct components of this right: the right of a United States citizen to enter and abide in any state; the right to be treated as a welcome visitor rather than an unfriendly alien; and the right, upon establishing residency, to enjoy the same privileges and immunities as other citizens of that state.^[48] This marked the first substantive use of the clause since the 1873 Slaughter-House Cases, though the decision confined its application to durational residency restrictions on welfare, emphasizing equal treatment among citizens rather than a broad enumeration of rights.^[49] The Saenz ruling revived scholarly and judicial interest in the clause by distinguishing privileges of national citizenship—such as the right to travel interstate—from those of state citizenship, thereby sidestepping the Slaughter-House framework that had largely nullified the clause's potential to incorporate federal rights against the states.^[50] However, the majority did not overrule Slaughter-House or extend the clause beyond the right to travel, with Justices Antonin Scalia and Chief Justice William Rehnquist dissenting on grounds that the clause historically protected only narrow comity rights between states, not welfare entitlements.^[48] Critics noted that the decision's reliance on post-Civil War precedents and natural rights traditions hinted at untapped potential for the clause but stopped short of a comprehensive revival, preserving the Due Process Clause as the primary vehicle for selective incorporation.^[49] In McDonald v. Chicago (2010), the Court incorporated the Second Amendment right to keep and bear arms against the states via the Due Process Clause of the Fourteenth Amendment, but Justice Clarence Thomas's concurrence advocated resurrecting the Privileges or Immunities Clause as the proper textual basis for such protections.^[51] Thomas argued that the clause originally encompassed fundamental rights of citizenship, including those enumerated in the Bill of Rights and certain unenumerated natural rights, rendering the Slaughter-House decision's narrow interpretation a longstanding error that marginalized the clause in favor of substantive due process.^[51] He contended that the right to armed self-defense qualifies as a privilege of national citizenship, historically recognized in antebellum free-state constitutions and Reconstruction-era understandings, and urged overruling Slaughter-House to the extent it excluded such rights from the clause's ambit.^[51] Although the majority opinion by Justice Samuel Alito rejected this approach to avoid disrupting decades of incorporation precedent, Thomas's view garnered support from originalist scholars who saw it as aligning with the clause's drafting history tied to the Civil Rights Act of 1866.^[52] The McDonald concurrence did not command a majority but signaled potential for future litigation, as Thomas critiqued the Due Process Clause's "judicially created" protections for lacking the clause's explicit textual grounding in citizenship privileges.^[51] No subsequent Supreme Court decision has adopted Thomas's framework for incorporation, but it reinvigorated academic debates on the clause's role in safeguarding rights like property and contract against state infringement, distinct from equal protection or due process analyses.^[53] Together, Saenz and McDonald represented limited but notable departures from post-Slaughter-House dormancy, applying the clause to interstate equality and, in concurrence, to Second Amendment incorporation, though broader revival remains a minority position amid institutional reluctance to upend selective incorporation doctrine.^[8]

Scholarly and Ideological Debates

Criticisms of the Slaughter-House Narrow Interpretation

The narrow interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases (1873), which confined its protections to a limited set of federal citizenship rights such as access to seaports and protection on the high seas, has faced substantial criticism for contradicting the historical evidence of the Clause's broader intended scope. Critics, including originalist scholars, argue that the decision overlooked ratification-era debates in the 39th Congress, where framers like Senator Jacob Howard explicitly linked the Clause to the fundamental rights enumerated in the Civil Rights Act of 1866, including the rights to make and enforce contracts, sue, give evidence, and enjoy property on equal terms with white citizens.^[6] This Act, passed on April 9, 1866, over President Andrew Johnson's veto, embodied natural rights traditions derived from common law and state constitutions, extending beyond mere federal privileges to safeguard economic liberties against state infringement—a scope the Slaughter-House majority dismissed as primarily regulable by states under their police powers.^[54] Justice Stephen Field's dissent, joined in part by Justices Joseph Bradley and Noah Swayne, contended that the majority's distinction between state and national citizenship rendered the Clause redundant and ineffective, ignoring precedents under Article IV's Privileges and Immunities Clause that protected fundamental rights like the pursuit of livelihood from arbitrary state barriers.^[55] Field emphasized that the right to exercise a lawful trade without monopolistic exclusion—central to the butchers' challenge against Louisiana's 1869 slaughterhouse grant—was a core privilege of national citizenship, rooted in the Amendment's aim to secure freedmen's civil equality post-Civil War.^[56] Bradley similarly critiqued the ruling for eviscerating the Clause's potential to nationalize protections against state violations of personal liberty and property, forcing future claims into the vaguer Due Process Clause and undermining the Reconstruction Amendments' federalizing intent.^[57] Modern scholarly critiques, particularly from originalists, reinforce these dissents by citing legislative history showing the Clause's drafters rejected narrower formulations to encompass unenumerated rights akin to those in the Bill of Rights and state bills of rights. Randy Barnett and Evan Bernick, analyzing over 60 framers' statements from 1866-1868, argue the Slaughter-House view misread "privileges or immunities" as excluding the 1866 Act's protections, which Congress deemed essential to prevent Southern states from reenacting Black Codes; they contend the decision's federalism rationale ignored evidence that Republicans viewed economic rights as integral to citizenship's "fundamental" attributes.^[6] Michael McConnell has described the ruling as leaving the Clause "dormant," compelling courts to improvise substantive due process doctrine for rights incorporation—a textual mismatch since the Clause more directly targets citizenship privileges, potentially accommodating traditional unenumerated rights without judicial overreach.^[58] These arguments highlight how the narrow holding perpetuated state-level abuses, as evidenced by post-1873 cases like the Colfax Massacre (1873), where federal protections faltered without a robust Clause interpretation.^[59] Critics further fault the decision for methodological flaws, such as Justice Samuel Miller's selective reliance on pre-Amendment precedents while disregarding Reconstruction-specific context, including the 1867-1868 state ratifications where delegates affirmed the Clause's role in overriding discriminatory state laws.^[60] Justice Clarence Thomas's concurrence in McDonald v. Chicago (2010) echoed this by calling for overruling Slaughter-House, asserting its "watered-down" reading defied originalism and textualism, as the Clause's plain language—mirroring Article IV but elevated to constrain states directly—aimed to guarantee equal citizenship rights nationwide, not a trivial federal enclave. While some defenders invoke the majority's concern for preserving state sovereignty amid post-war federal expansion, detractors counter that this prioritized abstract dual-sovereignty over empirical ratification intent, where 28 of 37 states ratified amid explicit understandings of broader protections.^[61] Overall, these criticisms portray the ruling as a pivotal misstep that constrained federal civil rights enforcement for over a century, diverting constitutional litigation to less anchored doctrines.^[57]

Originalism vs. Living Constitution Approaches

Originalists interpret the Privileges or Immunities Clause according to its public meaning at ratification in 1868, asserting that it was intended to protect citizens' fundamental rights—rooted in natural law, the Bill of Rights, and the Civil Rights Act of 1866—against state infringement, beyond the narrow federal prerogatives delimited in the Slaughter-House Cases (1873).^[6] This approach emphasizes historical evidence from framers such as Representative John Bingham, who described the clause as securing "fundamental rights" like habeas corpus, free speech, and economic liberties derived from Anglo-American tradition.^[62] Scholars like Randy Barnett argue that this original scope encompasses unenumerated rights essential to ordered liberty, providing a textual basis for selective incorporation without judicial evolution of meaning.^[6] Justice Clarence Thomas applied this methodology in his concurrence in McDonald v. Chicago (2010), contending that the clause incorporates the Second Amendment right to keep and bear arms against the states, as it originally targeted post-Civil War state violations of citizenship privileges.^[51] Adherents of living constitutionalism, by contrast, advocate interpreting the clause in light of contemporary societal values and needs, allowing its protections to adapt rather than adhere strictly to 1868 understandings.^[63] In practice, this perspective has contributed to the clause's marginalization since Slaughter-House, with courts under evolving-doctrine frameworks preferring the Due Process Clause for substantive rights that reflect "evolving standards of decency," as in Trop v. Dulles (1958) and privacy precedents like Griswold v. Connecticut (1965). Living constitutionalists, such as those emphasizing democratic processes and prudential judgment, criticize originalist revival of the clause as unduly rigid, potentially constraining responses to unforeseen modern challenges like digital privacy or social equality, though few have proposed expanding the clause itself for such purposes.^[63] This approach prioritizes judicial flexibility to harmonize text with current norms, but originalists counter that it invites subjective policymaking untethered from ratification-era constraints, as evidenced by the clause's underutilization amid Due Process expansions.^[64] The debate underscores methodological tensions: originalism constrains judges to verifiable historical meaning, aiming to restore the clause's post-Reconstruction role in safeguarding enumerated and natural rights without "judge-made" additions, while living constitutionalism risks indeterminacy by subordinating text to transient values, perpetuating the Slaughter-House narrowing despite evidence of broader intent.^[6]^[63] Critics of originalism contend it may exclude progressive interpretations, such as applying the clause to novel equity claims, yet historical analysis supports its alignment with framers' anti-majoritarian protections for individual liberty against state overreach.^[65] Proponents of each view cite the clause's textual placement alongside citizenship definitions, but originalists prioritize ratification debates and early enforcement acts, whereas living theorists invoke post-adoption judicial gloss and societal evolution to justify selective dormancy.^[64] This divergence manifests in incorporation doctrine, where originalists favor the clause's explicit citizen-focused mechanism over Due Process's procedural origins, potentially resolving longstanding redundancies if revived.^[51]

Arguments on Redundancy and Clause Overlap

In the Slaughter-House Cases (1873), the Supreme Court majority, led by Justice Samuel Miller, contended that a broad interpretation of the Privileges or Immunities Clause would render it largely redundant with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which were expressly designed to safeguard the "fundamental rights of state citizenship" against state infringement.^[41] Miller emphasized that the framers included these latter clauses to address civil rights protections previously left to states, implying that the Privileges or Immunities Clause was confined to a narrow class of national privileges—such as rights to interstate travel, habeas corpus, and federal protection on the high seas—to avoid duplicative federal oversight of state matters.^[41] This redundancy rationale persisted in later jurisprudence, as seen in Maxwell v. Dow (1900), where the Court rejected arguments that the Clause incorporated Bill of Rights protections against states, asserting that such a reading would overlap excessively with the Due Process Clause's role in securing procedural and substantive liberties, thereby diminishing the Clause's independent textual purpose. Scholars supporting this narrow view, such as those analyzing Reconstruction-era debates, have argued that the separate enumeration of Due Process—mirroring the Fifth Amendment's substantive protections for life, liberty, and property—demonstrates the framers' intent to allocate distinct functions: the Privileges or Immunities Clause for citizenship-specific immunities, not a wholesale redundancy in fundamental rights enforcement.^[66] Critics of expansive interpretations further posit that equating privileges or immunities with unenumerated natural rights would create surplusage, as the Due Process Clause already empowered Congress to enforce against arbitrary state deprivations of liberty, a point reinforced by pre-Fourteenth Amendment understandings of due process as incorporating common-law rights without needing additional clauses.^[66] For instance, early 20th-century analyses, including McGovney's examination of the Clause's drafting, highlighted that overlap with Equal Protection—targeting discriminatory classifications—would undermine the Clause's focus on uniform national citizenship entitlements if broadened beyond federal derivation.^[67] This perspective holds that constitutional drafters avoided redundancy by design, preserving federalism through compartmentalized protections rather than vesting expansive authority in a single clause.^[68]

Modern Implications and Applications

Right to Travel Doctrine

The right to travel doctrine encompasses constitutional protections against undue state restrictions on interstate movement and residency, with the Privileges or Immunities Clause of the Fourteenth Amendment serving as the basis for ensuring equal treatment of new state residents in fundamental privileges. In Saenz v. Roe (1999), the Supreme Court articulated three distinct aspects of this right: the freedom to enter and leave states freely, the entitlement to treatment as a welcome visitor under Article IV's Privileges and Immunities Clause, and—crucially—the right of newly arrived citizens to enjoy the same privileges and immunities as other citizens of their new state of residence, grounded explicitly in the Fourteenth Amendment's Privileges or Immunities Clause.^[48]^[69] This third component prohibits states from imposing durational residency requirements that disadvantage recent migrants in core benefits, such as welfare assistance.^[48] The doctrine's linkage to the Privileges or Immunities Clause in Saenz marked a rare invocation of the provision following its narrowing in the Slaughter-House Cases (1873), where the Court had limited it to narrow national citizenship rights. In the 7-2 decision, Justice Stevens' majority opinion rejected California's statute capping welfare benefits for residents of less than one year at the levels from their prior states, holding that such discrimination penalized the exercise of federal citizenship rights under the Clause, which declares that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."^[48]^[70] The ruling emphasized that while states retain authority over benefit programs, they cannot condition full citizenship privileges on length of residency, distinguishing this from mere economic regulation.^[48] Dissenters, including Chief Justice Rehnquist, contended that the Clause did not extend to intrastate welfare equality and that prior right-to-travel precedents relied on Equal Protection rather than reviving dormant Clause interpretations.^[71] Pre-Saenz cases, such as Crandall v. Nevada (1868), had recognized a general right to interstate travel predating the Fourteenth Amendment, rooted in national citizenship and implied federal powers, but without squarely attributing durational-residency protections to the Privileges or Immunities Clause.^[72] Saenz thus provided a textual anchor for the doctrine's third prong, affirming that the Clause safeguards against state-level citizenship hierarchies that burden migration.^[73] Post-1999 applications have remained limited, primarily scrutinizing residency-based restrictions on voting, professional licensing, and public benefits, though lower courts have upheld the principle in striking down barriers like extended waiting periods for in-state tuition or divorce proceedings.^[74] This interpretation underscores the Clause's potential to enforce uniform national citizenship standards, preventing states from effectively creating second-class citizens based on recent relocation.^[75]

Potential for Bill of Rights Incorporation and Unenumerated Rights

The Privileges or Immunities Clause of the Fourteenth Amendment has been advanced by some jurists and scholars as a textual basis for incorporating provisions of the Bill of Rights against the states, offering a more direct mechanism than the Due Process Clause employed in Twining v. New Jersey (1908) and subsequent selective incorporation cases.^[51] Proponents argue that the Clause's reference to "privileges or immunities of citizens of the United States" encompasses rights enumerated in the first eight amendments, which were understood at ratification in 1868 as fundamental protections against federal overreach that the Reconstruction Amendments extended nationwide to curb state abuses post-Civil War.^[76] This view posits that the Clause's original public meaning aligns with the framers' intent to nationalize Bill of Rights guarantees, as evidenced by congressional debates linking it to safeguards like free speech and bearing arms, rather than the narrower "national citizenship" rights upheld in the Slaughter-House Cases (1873).^[77] However, the Supreme Court has not adopted this approach, adhering to Slaughter-House's limiting precedent and relying on substantive due process for incorporation of nearly all Bill of Rights provisions by 2024.^[78] A notable judicial endorsement appeared in McDonald v. City of Chicago (2010), where Justice Clarence Thomas, in a solo concurrence, contended that the Privileges or Immunities Clause provides the "proper vehicle" for incorporating the Second Amendment right to keep and bear arms against state and local governments, urging overruling of Slaughter-House to restore the Clause's expansive role.^[51] Thomas reasoned that the Clause protects "fundamental rights necessary to the enjoyment of the blessings of liberty," including those in the Bill of Rights, as confirmed by historical practices and the Amendment's egalitarian aims to secure freedmen's rights equivalent to white citizens'.^[51] The majority opinion, authored by Justice Samuel Alito, incorporated the Second Amendment via the Due Process Clause instead, citing stare decisis and avoiding disruption to over a century of precedent, though it acknowledged scholarly critiques of Slaughter-House's cramped reading.^[79] Thomas's position, echoed in dissents and concurrences by originalist justices like Antonin Scalia in earlier cases, highlights the Clause's untapped potential but remains non-binding, with no majority embracing it for incorporation as of 2025.^[80] Beyond enumerated Bill of Rights protections, originalist interpreters contend the Clause safeguards unenumerated fundamental rights rooted in natural law and common law traditions, akin to the Ninth Amendment's reservation of rights "retained by the people." Scholars Randy Barnett and Evan Bernick argue that the Clause's original meaning incorporates antebellum understandings of "privileges or immunities" as including inalienable rights to life, liberty, property, and pursuit of happiness, as codified in the Civil Rights Act of 1866, which Congress viewed as declarative of these protections.^[6] This reading posits absolute protection against state abridgment for such rights, without the level-of-scrutiny balancing tests applied under substantive due process, potentially encompassing economic liberties like contract and labor rights diminished by Lochner v. New York (1905) era reversals.^[81] Critics, including textualists wary of judicial overreach, counter that unenumerated rights claims risk subjectivity, but proponents cite ratification-era evidence, such as Senator Jacob Howard's 1866 floor statements equating the Clause to "every right, privilege, and immunity" essential to citizenship, as grounding for broader application if Slaughter-House were revisited.^[6] No Supreme Court decision has extended the Clause to unenumerated rights in this manner, leaving its potential theoretical amid ongoing debates over originalism's scope.^[82]

References

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According to Bingham, the Privileges or Immunities Clause protected “other and different privileges and immunities” than those protected by Article IV.
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The Slaughter-House Cases, therefore, reduced the Privileges or Immunities Clause to a superfluous reiteration of a prohibition already operative against the ...
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Lash clearly believes that the Privi- leges and Immunities Clause confers a privilege against parochial discrimination with respect to certain, textually ...
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Historical Background on Privileges and Immunities Clause
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[79]
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[81]
The Privileges or Immunities Clause, Abridged: A Critique of Kurt ...
In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights ...
[82]
"What Are Our Unenumerated Rights as Americans? An Analysis of ...
Aug 1, 2023 · The original intent of the Privileges or Immunities Clause of the Fourteenth Amendment was to 1) protect certain unenumerated rights, and 2) ...