Constitutional Problems: Privileges and Immunities

A great many books have been written about the U.S. constitution. We have enjoyed some, particularly those, which have pointed out problematic areas, clauses that the authors regretted or wished could be fixed or just would prefer to be understood as they were when they were written.

Here are pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some of the authors merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses:

1. The commerce clause
2. The contracts clause
3. The due process clause (amend 5 and 14)
4. The privileges or immunities clause
5. The equal protection of the laws clause
6. The general welfare clause
7. The necessary and proper clause
8. The supremacy clause
9. The takings and tax clauses
10. The enumeration of rights clause (amend 9)

We have now come to the fourth of these clauses, The Privileges and Immunities Clause.

The Privileges and Immunities Clause

Article IV, section 2 of the United States Constitution says: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

The Fourteenth Amendment to the United States Constitution (1868) says: “. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . ”

The Privileges and Immunities Clause in Article IV

The privileges and immunities clause was familiar teritorry to the Framers of the Constitution, having had similar provisions in the Articles of Confederation. Article IV had this and other provisions in it with the aim of a proper relationship among the states and the union. The second clause in the article may have been aimed at having the states all recognize the rights of citizens of the other states, or it may have been meant to bind the federal government to recognize a combination of the rights of citizens of all of the states. The exact scope remained for courts to clear up. Our focus here is the meaning of "all privileges and immunitites." And we find it rather broad.

The unamended U.S. Constitution had, in this clause of article IV, a miniature bill of rights.

In common parlance in the late 1700s privileges and immunities were treated as expressing the same concept as individual natural rights. Other terms were nearly synonymous, including freedoms and liberties. These rights, starting with a few written into the constitution of 1787 (the privilege of habeas corpus, no bills of attainder and no ex post facto laws, the right to travel), and many defined in the Bill of Rights, were not intended to be an exhaustive list. These rights, referred to in amendment IX as "rights retained," are all of the rights included in the right to Life, Liberty and Property (all of the means to pursuing happiness), with the exception of what we surrender in joining society in maintaining our nation. Were not all of our natural rights retained? In the time of the Framers the concept of natural rights was based on "state of nature" where no government existed. Once government is adopted, the picture changes. Some of the powers delegated to the government implied that some of our rights were surrendered. Also, to complement the responsibilities of citizenship, other rights were created and granted to citizens (perhaps best described as civil rights, as opposed to natural liberty rights).

We delegate a portion of the bundle of natural rights that we call self-defense or protecting ourselves and our property: when we are not in immediate danger from physical harm or the immediate threat thereof, to avert the harm by force by the use of retaliation. We surrendered to the government the one natural right, or "executive power," to enforce one's own rights. Except when we are under certain and immediate threat, we delegate the power of apprehending, formally accusing, trying, sentencing and executing the sentence on the party making the threat, including also when the physical harm has already been done and we were unable to fend it off. We do not delegate or give up the right to be made whole, or restitution. The government does not carry out its rightful powers when it punishes the wrong-doer by extracting a fine and adding the money to its coffers.

The rights retained are too many to list exhaustively (as amendment IX declares) and consist of total freedom to do whatever we want with our bodies and our rightful property, as long as we do not interfere with the same right of everyone else to do the same. The concept of the privileges and immunities clause is a bill of rights, referring us to primciples that lie beyond the document, lands us in the situation of having to supplement the text and to construct the meaning when we apply it to issues. See Randy E.Barnett, Restoring the Lost Constitution: The Presumption of Liberty, pages 108 and 123. The Supreme Court (or lower court) would make the call, on any research done on the historical meaning of the clause and how it might apply to a specific case.

The original clause, in article IV, was probably intended to require every state in the union to recognize the natural rights of citizens traveling from other states, to prevent discrimination against visitors and new residents. There was a fairly common understanding of natural rights, and there were, as a result, very few differences in local laws protecting the individual rights one has within one's own state. What was feared was that a state might not honor the rights of a person who was not a citizen of that state.

However, in time the original understanding was interpreted a different way. In the1833 decision of Barron v. Baltimore, the Marshall Court ruled that the Bill of Rights did not apply to the state governments, which may have been the intent of the authors of the first 10 amendments.

When the Civil War ended, slaves were freed and the black codes and other measures violated the rights of the equal protection of the laws. The Civil Rights Act of 1866 was enacted and to back it up. This act recognized the rights ". . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property . . ." (Act of April 9, 1866, 14 Stat. 27). Fearing this federal law could be undermined, the Fourteenth Amendment was enacted to guarantee the constitutionality of the Civil Rights Act against infringements by state governments.

Drafting and adoption of Amendment XIV

Amendment XIV was intended to incorporate all of the rights recognized by the United States constitution (make them applicable to the states). This has been recognized by the courts with the exception of amendments II and V (the right to bear arms and formation of the militia). Here the second instance of the privileges/immunites clause, in amendment XIV established or gave a definite shape to "citizenship of the United States." There is an urban myth that before the Civil War (and this amendment) when speaking of our country, people said "the United States are, while afterward it was in terms of "the United States is." Secession of a state had once been thinkable, but clearly it was no longer so. Being a citizen of a particular state was now no longer of high importance, and the rights of a citizen of the United States became individual rights within all of the several states.

See Wikipedia for a sketch of the history of this constitutional clause.

On February 3 of 1866, a congressional committee known as the "Joint Committee of Fifteen" voted in favor of a draft constitutional amendment proposed by John Bingham. The draft constitutional amendment provided:

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states..."

Bingham expressed his opinion that this draft language would give Congress power to "secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States," and he added that "those immunities follow under the Constitution."

The Fourteenth Amendment was approved by the House later that day. The Senate subsequently added a sentence granting birthright citizenship on June 8, 1866. Congress then gave final approval to the Privileges or Immunities Clause when the House proposed the Fourteenth Amendment to the states for ratification on June 13 of 1866. It became part of the Constitution in July of 1868.

As a note, while some commentators on this topic make a point of talking about the change from the word "and" to the word "or" between the two versions of the clause. I do not see how it makes a difference. The concept is rather inclusive. The one declares everyone is entitled to both privileges and immunities, the other says neither one can be abridged.

Interpretation

The privileges or immunities clause has the distinction among constitutional provisions in that some scholars believe it was almost read out of the Constitution in a decision of the Supreme Court in the Slaughterhouse Cases of 1873. The Clause has been ignored ever since. The Privileges or Immunities Clause was perhaps originally intended to incorporate (apply to the states) the first eight amendments of the Bill of Rights against the state governments, while also incorporating other constitutional rights such as habeas corpus against the state governments. However, that incorporation has instead been achieved mostly by means of the Due Process Clause of the Fourteenth Amendment.

No part of the Bill of Rights was found involved in the case. It was a matter of due process of the law.

Later in the history of the Supreme Court the whole meaning of privileges and immunities changed quite a lot. United States v. Carolene Productc (1938) and a certain footnote 4 in the decision wreaked havoc on what the original natural rights understanding was. From then on practically any legislative act which may have had an impact on individual liberties would have the presumption of constitutionality unless it impinged directly on certain "fundamental rights." Some rights in the Bill of Rights became nearly absolute, while others became second class (ex., religious group discrimination was favored but the right to bear arms was subject to regulation). We fear this will be hard to undo.

Roger Pilon of the Cato Institute urges that the Article IV Clause should be interpreted as protecting a whole range of natural rights, despite "its more recent history of interpretation or enforcement." [Cato]  It is a brief statement in the Constitution, prior to the Bill of Rights, of the vast array of rights or liberties people had before the Constitution was adopted.

The framers of the Privileges or Immunities Clause anticipated that it could protect (from state infringement) a broad range of rights far exceeding what had been enumerated in the Bill of Rights. However, as Pilon notes, that was often because of their interpretation of the Privileges and Immunities Clause in the original unamended Constitution. However, such an open and opaque statement of principles would never become clear for the nation until the Supreme Court applied it.

The unamended U.S. Constitution had, in this clause of article IV, a miniature bill of rights. It's not a wordy, wordy long list of stuff. It says it all in just 19 words (It is still a possibility that enumerating specific portions of our natural rights is a dangerous thing.) "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And while it's not worded exactly the same way in the Fourteenth Amendment, it is reinforced by that amendment, and now it does not just apply to the national government, but to all of the several states!