The Privileges or Immunities Clause

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .

—Kurt T. Lash

Introduction

The exact content and scope of the Privileges or Immunities Clause has long been a matter of substantial academic and judicial debate. Although early decisions by the Supreme Court narrowed the clause almost to the point of nonexistence, most scholars and some Supreme Court justices now believe that it was meant originally to make the Bill of Rights enforceable against the states. Other scholars are divided over whether the clause requires nothing more than equal treatment or protects substantive rights beyond those listed in the first ten amendments to the Constitution. To date, the Supreme Court has avoided reinvigorating the clause, choosing instead to base its protection of substantive rights on a reading of the Fourteenth Amendment’s Due Process Clause.¹

Historical Background

The Privileges or Immunities Clause (Section 1 of the Fourteenth Amendment) is one of two clauses in the Constitution that refer to the “privileges” and “immunities” of citizenship. The other (Article IV, Section 2) declares that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” (See Essay No. 140.)

Corfield v. Coryell (1823), an influential antebellum circuit court opinion by Justice Bushrod Washington, found that this clause guarantees visiting citizens from another state equal access to a limited set of locally secured “fundamental” rights.² Justice Joseph Story similarly explained that “[t]he intention of this clause was to confer . . . a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.”³

In Dred Scott v. Sandford (1857), Chief Justice Roger B. Taney used this clause as an argument against black citizenship. If black people were citizens, he argued, then black citizens from northern free states who travelled to slave states would have the same right to keep and bear arms granted to resident white citizens. But Taney insisted that black people could not be citizens and thus were not entitled to the privileges and immunities of citizenship.⁴

Although Article IV speaks of the “Privileges and Immunities of Citizens in the several States,” numerous antebellum sources referred to the “privileges and immunities of citizens of the United States.” For example, the 1803 Louisiana Cession Act declared that “[t]he inhabitants of the ceded territory shall . . . enjoy[] . . . all the rights, advantages and immunities of citizens of the United States.”⁵ According to Daniel Webster, such national privileges or immunities were “recognized or communicated by the Constitution of the United States . . . [as] common to all citizens, and are uniform throughout the United States.”⁶ Abolitionist Joel Tiffany wrote that the privileges and immunities of citizens of the United States included “all the guarantys of the Federal Constitution for personal security, personal liberty and private property” including “the right of petition, the right to keep and bear arms, the right to be secure from all unwarrantable seizures and searches,” and other rights listed in the Bill of Rights.⁷ Perhaps ironically, Dred Scott v. Sandford also listed the right to keep and bear arms as a “right or privilege” of citizenship—a right Taney denied to black Americans because they were not citizens.⁸

In 1859, Representative John Bingham of Ohio argued that the Privileges or Immunities Clause of Article IV impliedly obligated the states to enforce provisions in the Bill of Rights. According to Bingham, Article IV should be read as if it contained an unstated ellipsis guaranteeing “the privileges and immunities of citizens of the United States in the several States.”⁹ Bingham, like most other antebellum Republicans, did not believe the original Constitution empowered Congress to enforce the Bill of Rights (or Article IV) against the states. His views are important because he later became a principal drafter of the Fourteenth Amendment’s Privileges or Immunities Clause.

Drafting the Privileges or Immunities Clause

In December 1865, the 39th Congress began to draft a series of statutes and proposed amendments meant to secure basic rights in the southern states. In February 1866, Representative Bingham, a member of the Joint Committee on Reconstruction, drafted a proposed amendment granting Congress the “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.”¹⁰ Bingham explained that his amendment would “arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the constitution today” and added that his draft “hath that extent—no more.”¹¹ During debate, both Republicans and Democrats expressed concerns about the wording of the amendment. Bingham then agreed to return the proposal to the Joint Committee on Reconstruction for redrafting.¹²

Two months later, the Joint Committee returned with a new five-sectioned amendment with a revised version of Bingham’s proposal serving as Section 1 of the new amendment. Bingham once again authored the opening section: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .”¹³

In May 1866, Senator Jacob Howard of Michigan, also a member of the Joint Committee, introduced the proposed amendment in the Senate.¹⁴ Howard explained that the Privileges or Immunities Clause protected a variety of rights, including those protected by Article IV as interpreted by cases like Corfield v. Coryell. Howard added that these “privileges” and “immunities” included personal rights guaranteed and secured “by the first eight amendments of the Constitution.”¹⁵ Howard said that without an amendment, these liberties stood “simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect,” and that the states were therefore “not restrained from violating” them.¹⁶ Howard’s speech was widely published in newspapers across the country.

Both the House and Senate approved Bingham’s language for the Privileges or Immunities Clause as well as the Due Process and Equal Protection Clauses. Just before final passage, the Senate successfully added a provision defining national and state citizenship.¹⁷

Ratification of the Privileges or Immunities Clause

During the Fourteenth Amendment ratification debates, Republican supporters and Democratic opponents did not spend much time exploring the Privileges or Immunities Clause in detail. Democrats generally opposed passing any amendment and warned that Section 1 would open the door to black suffrage.¹⁸ Republicans denied that Section 1 conferred the political rights of suffrage. Rather, they generally paraphrased Section 1 as establishing only equal civil rights. Senator Lyman Trumbull of Illinois, for example, explained that Section 1 was simply “the declaration that all good citizens were entitled alike to equal rights” that were “set forth in the Civil Rights” Act of 1866.¹⁹

Post-Ratification Commentary

On July 28, 1868, Secretary of State William Seward declared the formal ratification of the Fourteenth Amendment. One week later, George Washington Paschal of Texas, a Unionist judge and legal scholar, explained that the Citizenship Clause and Privileges or Immunities Clause ensured that “the lines defining American citizenship will no longer be in doubt” and warned readers not to “underrate this national guarantee.”²⁰ The Bill of Rights would now constrain the states. Similarly, in 1872, Judge Timothy Farrar described the Fourteenth Amendment as having “swept away” antebellum judicial opinions refusing to apply the Bill of Rights against the states.²¹

In 1870, Americans ratified the Fifteenth Amendment, which declared that “the right of citizens of the United States to vote” shall not be denied on the basis of race. (See Essay No. 201.) Some women’s rights advocates claimed that the combination of the Fourteenth Amendment’s Privileges or Immunities Clause and the Fifteenth Amendment’s right-to-vote language should be understood as empowering Congress to give women the right to vote. Victoria Woodhull, a leading women’s suffragist, presented a petition to the House Judiciary Committee calling for legislation to give the “female citizen” the right to vote. According to Woodhull’s petition, “[t]he Constitution defines a woman born or naturalized in the United States, and subject to the jurisdiction thereof” as a citizen, and “[o]ne portion of citizens have no power to deprive another of rights and privileges such as are possessed and exercised by themselves.” Accordingly, the “male citizen” had no right to deprive the “female citizen” of the privilege of voting.²²

A majority of the House Judiciary Committee voted to reject Woodhull’s petition. In a report submitted by Chairman John Bingham, the majority expressly disagreed with Woodhull’s reading of the Privileges or Immunities Clause. The Fourteenth Amendment, the committee found, only “refer[red] to . . . those privileges and immunities embraced” in Article IV. The report concluded that the Fourteenth Amendment “did not add to the privileges or immunities before mentioned, but was necessary for their enforcement as an express limitation upon the power of the States.”²³

The committee’s report limited the Fourteenth Amendment’s “privileges or immunities” to those previously “embraced” by Article IV. The report could also be read as excluding the provisions of the Bill of Rights from those privileges or immunities, but it is not clear that every member of the majority would have agreed that the states were not required to enforce the Bill of Rights. Bingham had previously argued that Article IV impliedly obligated the states to enforce the Bill of Rights.

In any event, Bingham clarified his personal views two months later. He explained that the national privileges and immunities of citizens of the United States were altogether different from the state-secured rights covered by Article IV.²⁴ Those national privileges and immunities, Bingham explained, included the provisions of the Bill of Rights.

Judicial Precedent

The U.S. Supreme Court first grappled with the meaning of the Privileges or Immunities Clause in The Slaughter-House Cases (1873).²⁵ Justice Samuel Miller’s majority opinion rejected a claim by local butchers that a state-granted monopoly violated their Fourteenth Amendment “privilege or immunities” to pursue a trade. The Court held that the “privileges and immunities of citizens of the United States” were altogether different from those described by Justice Washington in Corfield v. Coryell.²⁶ The Fourteenth Amendment’s Privileges or Immunities were those that “owe their existence to the Federal government, its National character, its Constitution, or its laws” such as “[t]he right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus . . . and [t]he right to use the navigable waters of the United States. . . .”²⁷ State-secured common-law rights like the right to pursue a trade were not national privileges and immunities even if they might be guaranteed on an equal basis to visiting citizens by Article IV.

Justice Stephen Field dissented. He contended that the majority had reduced the Privileges or Immunities Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”²⁸ Justice Joseph Bradley wrote a separate dissent insisting that “[the] right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right.”²⁹ One day after Slaughter-House was decided, the Court rejected Myra Bradwell’s claim that the Privileges or Immunities Clause guarantees a woman the right to practice as a lawyer.³⁰

The Supreme Court subsequently ruled in United States v. Cruikshank (1876) that the protections of the federal Bill of Rights did not apply to the states.³¹ In this case, the rights to assemble and to keep and bear arms were not “privileges or immunities of citizens of the United States” protected against state abridgment by the Fourteenth Amendment. Barron v. Baltimore (1833) had held that the provisions of the Bill of Rights limited only the federal government and not the state governments.³² The Court ruled that Chief Justice John Marshall’s decision in Barron remained good law even after ratification of the Fourteenth Amendment.³³

The Court has never overruled Slaughter-House and Cruikshank. Instead, it has interpreted the Fourteenth Amendment’s Due Process Clause as “incorporating” provisions in the Bill of Rights against the states. For example, Gitlow v. New York (1925) held that the Due Process Clause requires the states to protect the freedom of speech.³⁴ The federal courts still invoke the Privileges or Immunities Clause in limited contexts, such as the right to travel.³⁵

A few Justices have occasionally encouraged the Supreme Court to revisit these narrow interpretations of the Privileges or Immunities Clause. For example, Justice Hugo Black described John Bingham as “the Madison of the first section of the Fourteenth Amendment” and argued that Section 1 was “intended to . . . make the Bill of Rights, applicable to the states.”³⁶

Justice Clarence Thomas presented an extended history of the Privileges or Immunities Clause in his concurring opinion in McDonald v. City of Chicago (2010), in which he encouraged the Court to restore Bingham’s original understanding of Section 1.³⁷ Thomas has also cited the Privileges or Immunities Clause as the basis for the right to be free from excessive fines and the regulatory takings doctrine.³⁸ Justice Neil Gorsuch has acknowledged “[a]s an original matter” that “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.”³⁹ And in Justice Thomas’s concurring opinion in Dobbs v. Jackson Women’s Health Organization (2022), he repeated his call for the Court to abandon its doctrine of substantive due process and instead enforce the original meaning of the Privileges or Immunities Clause.⁴⁰

Open Questions and Scholarly Debates

• Legal scholars remain deeply divided over the meaning of the Privileges or Immunities Clause. Bingham’s personal view of Section 1 seems clear, but it remains a matter of scholarly dispute whether the ratifying public shared Bingham’s understanding of the clause. Mid-twentieth-century historians like Charles Fairman rejected Bingham’s view that the clause made the Bill of Rights enforceable against the states. Fairman’s claims were challenged by historian William Crosskey, whose views were then challenged by Raoul Berger, whose views were challenged by Michael Kent Curtis and Akhil Reed Amar.⁴¹ Most scholars agree that the historical record supports reading the clause as making the federal Bill of Rights enforceable against the states,⁴² but that view is not unanimous. Professors John Harrison and Ilan Wurman, for example, contend that the Privileges or Immunities Clause does not incorporate the Bill of Rights.⁴³
• Whether the Privileges or Immunities Clause authorizes judicial enforcement of unenumerated rights against the states is a matter of even greater scholarly dispute. Some theorists such as Randy Barnett argue that the clause protects a range of unenumerated rights including economic rights.⁴⁴ Barnett has called on the Supreme Court to overrule The Slaughter-House Cases. Harrison and Wurman contend that the clause prohibits states from discriminating against contract and property rights. Other scholars, such as Akhil Amar and Michael McConnell, read the clause as authorizing judicial identification and enforcement of enumerated rights that emerge in the laws of the states over time, but they do not include the unenumerated economic rights protected by the Court under the Due Process Clause in cases like Lochner v. New York (1905).⁴⁵ Other scholars, including the author of this essay, have argued that the Privileges or Immunities Clause enforces only textually enumerated rights against the states such as those listed in the Bill of Rights.⁴⁶

1. Gitlow v. New York, 268 U.S. 652 (1925). ↩︎
2. 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823). ↩︎
3. 3 Story’s Commentaries § 1800. ↩︎
4. 60 U.S. 393, 416–17 (1857). ↩︎
5. Louisiana Purchase Treaty (Apr. 30, 1803), in 1 The Reconstruction Amendments: The Essential Documents 80 (Kurt T. Lash ed., 2021) (hereinafter “RA”). ↩︎
6. Daniel Webster, Memorial to the Congress of the United States on the Subject of Restraining the Increase of Slavery in New States (1819), in Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 56 (2014). ↩︎
7. Joel Tiffany, Treatise on the Unconstitutionality of Slavery (1849), in 1 RA 249. ↩︎
8. 60 U.S. 393, 450 (1857). ↩︎
9. Cong. Globe, 35th Cong., 2d Sess. 984 (1859) (emphasis added). ↩︎
10. Cong. Globe, 39th Cong., 1st Sess. 1088 (1866). ↩︎
11. Id. ↩︎
12. Id. at 1095. ↩︎
13. Id. at 2764. ↩︎
14. Id. at 2765. ↩︎
15. Id. ↩︎
16. Id. at 2766. ↩︎
17. Id. at 2897. ↩︎
18. Speech of Senator Thomas A. Hendrick (Aug. 8, 1866), in 2 RA 260–61. ↩︎
19. Speech of Lyman Trumbull (Aug. 2, 1866), in 2 RA 256. ↩︎
20. George Washington Paschal, The Fourteenth Article, N.Y. Tribune (Aug. 6, 1868), at 2. ↩︎
21. Timothy Farrar, Manual on the Constitution of the United States 487 (3d. ed. 1872). ↩︎
22. U.S. House, Judiciary Committee, Petition of Victoria Woodhull on the Subject of Female Suffrage (Jan. 2, 1871), in 2 RA 607. ↩︎
23. U.S. House, Judiciary Committee, The Woodhull Report (Jan. 30 & Feb. 1, 1871), in 2 RA 609. ↩︎
24. Speech of John Bingham on the Privileges or Immunities Clause of the Fourteenth Amendment (March 31, 1871), in 2 RA 620, 626. ↩︎
25. 83 U.S. 36 (1873). ↩︎
26. Id. at 74. ↩︎
27. Id. at 79–80. ↩︎
28. Id. at 96. ↩︎
29. Id. at 116. ↩︎
30. Bradwell v. Illinois, 83 U.S. 130 (1873). ↩︎
31. 92 U.S. 542 (1876). ↩︎
32. 32 U.S. 243 (1833). ↩︎
33. 92 U.S. at 552. ↩︎
34. Gitlow v. New York, 268 U.S. 652 (1925). ↩︎
35. Saenz v. Roe, 526 U.S. 489 (1999); Shapiro v. Thompson, 394 U.S. 618 (1969); Ilya Shapiro & Josh Blackman, The Once and Future Privileges or Immunities Clause, 25 Geo. Mason L. Rev. 1207 (2020). ↩︎
36. Adamson v. California, 332 U.S. 46, 71–74 (1947) (Black, J., concurring). ↩︎
37. 561 U.S. 742, 813–35 (2010) (Thomas, J., concurring). ↩︎
38. Timbs v. Indiana, 586 U.S. 146, 157–58 (2019) (Thomas, J., concurring); Murr v. Wisconsin, 582 U.S. 383, 419 (2017) (Thomas, J., dissenting). ↩︎
39. Timbs, 586 U.S. at 157 (Gorsuch, J., concurring). ↩︎
40. 597 U.S. 215, 332–33 (2022) (Thomas, J., concurring). ↩︎
41. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 187–206 (1998). ↩︎
42. Amar, The Bill of Rights: Creation and Reconstruction, supra; Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2013); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1990); Lash, supra. ↩︎
43. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment (2020). ↩︎
44. Barnett, supra at 206; Randy E. Barnett & Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 205–23 (2021). ↩︎
45. 198 U.S. 45 (1905). ↩︎
46. Lash, supra. ↩︎