In the Slaughter-House Cases the court recognized two types of citizenship. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “ [t]he proposition pending before the House is simply a proposition to 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 to-day. Due process clause basically makes the bill of rights applicable to state governments as well as the federal government, this extends the full protection of the law to every citizen. In it Judge John Day interpreted the clause to protect enumerated constitutional rights such as those listed in the Bill of Rights, but not unenumerated common-law civil rights. Get the National Constitution Center’s weekly roundup of constitutional news and debate. "[5] As stated by Bingham on January 30, 1871 in the House Report No. Shortly thereafter, on March 31, 1871, Bingham elaborated: I hope the gentleman now knows why I changed the form of the amendment of February, 1866. . The reference to privileges and immunities of citizens uses the words of the provision in Article IV of the Constitution providing that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” In its very first presidential campaign, in 1856, the Republican Party nominated John C. Fremont and explained to all America just what the party stood for:  “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont.”. Privileges and immunities clause is rarely invoked. The Fourteenth Amendment's Citizenship Clause addresses residency: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. In the mid-1860s, two other constitutional clauses were also central to the debate about voting rights. If the equality-based reading of private-law rights is correct, the Privileges or Immunities Clause performs much of the anti-discrimination function that is largely attributed to the Equal Protection Clause in the Supreme Court’s doctrine and the accompanying account of history. The clause of the Fourteenth Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. It can be paraphrased as “all citizens shall have the same civil rights.” Because it is an equality rule, the Clause does not dictate or constrain the content of civil rights recognized by state law. The same authorities have held that the negro of African descent was not a citizen within the meaning of the term, as used in this and other articles of the Constitution; that he was not one of the "peoples" who ordained that sacred charter; that as a slave he was only three-fifth of a "number," but as a free man he was a whole number to be counted for representation, and a whole "person," who might be held to involuntary "service," and reclaimed in any State to which he might escape. Congress now has authority to create protections for rights of national citizenship that it may previously have lacked. Sir, the words of the Constitution that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several states' include, among other privileges, the right to bear true allegiance to the Constitution and the laws of the United States, and to be protected in life, liberty, and property. Subsequently, on April 28, 1866, the Joint Committee of Fifteen voted in favor of a second draft proposed by Congressman Bingham, which would ultimately be adopted into the Constitution. When explaining his Amendment, Bingham consistently tied the Privileges or Immunities Clause to the individual protections enshrined in the Bill of Rights. Two…, In this clip from FOURTEEN performers share sections of the Black Codes from the Reconstruction era and the response of African…. Explore key historical documents that inspired the Framers of the Constitution and each amendment during the drafting process, the early drafts and major proposals behind each provision, and discover how the drafters deliberated, agreed and disagreed, on the path to compromise and the final text. "Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger", 16 Wake Forest L. Rev. Legal scholars disagree about the precise meaning of the Privileges or Immunities Clause, although there are some aspects that are less controversial than others. Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a ''practical nullity'' by a single decision of the Supreme Court issued within five years after its ratification. "[23], The right of citizens to travel from one state to another was already considered to be protected by the Privileges and Immunities Clause of the original, unamended Constitution. To be sure, not every protection listed in the original Bill of Rights was a “privilege” of individual “citizens.” Instead, some were key states’ rights protections. The federal Constitution today reaches these cases because of an amendment ratified nearly a century after the Founding—the Fourteenth Amendment—and authored by an important generation of constitutional innovators forgotten by too many Americans, the Reconstruction Republicans. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Simply put, Northerners in 1868 were not yet ready for nationally guaranteed African American suffrage. I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. Sterling Professor of Law and Political Science at Yale University, James Madison Distinguished Professor of Law at the University of Virginia School of Law. It requires that whatever those rights are, all citizens shall have them alike. That it would do so was indeed widely believed. I've edited the question to differentiate the two. While certain key Bill of Rights provisions represent core “privileges” and “immunities” protected by the Fourteenth Amendment, these capacious words cover other fundamental rights, as well. Another redundancy issue is posed by an interpretation of the Privileges or Immunities Clause that views it as simply a guarantee of equality. Illinois, the Supreme Court took a sledgehammer to the idea that the Privileges or Immunities Clause of the Fourteenth Amendment provided substantive rights to citizens. While Article IV’s Privileges or Immunities Clause is stated in the affirmative (of what citizens are entitled to) and the Fourteenth Amendment’s Privileges or Immunities Clause is stated in the negative (of what cannot be taken away), what’s significant is that other parts of the text are different. On February 28, 1866, 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, "The proposition pending before the House is simply a proposition to arm the Congress…with the power to enforce the bill of rights as it stands in the constitution today. The Document and the Doctrine: A Word of Caution. In the 1948 case of Oyama v. California,[15] a majority of the Court found that California had violated Fred Oyama's right to own land, a privilege of citizens of the United States. When drafting the Fourteenth Amendment, the Framers borrowed key language from Article IV of the Constitution, which also spoke of “Privileges” and “Immunities” of “Citizens.” At its core, Article IV secures interstate equality of citizenship. Although the Court has found that the Fourteenth Amendment does apply most of those limitations to the States, in its view that result is not accomplished by the Privileges or Immunities Clause. Just how requirements of general equality entail limitations on the classifications drawn by legal rules, like classifications based on race, sex, and age, is one of the most difficult questions left to us by the drafters of the Fourteenth Amendment. ", In the 1999 case of Saenz v. Roe, Justice John Paul Stevens, writing for the majority, said that the "right to travel" also has a component protected by the Privileges or Immunities Clause of the Fourteenth Amendment:[19], Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment.[12]. . Like Roger Pilon, some of 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. The 14th clause is "privileges or immunities," while Article IV is "privileges and immunities." Whether the existence of the national government and the relationship between that government and citizens of the United States produces some rights of national citizenship is a difficult question. Squaring that assumption with the Supremacy Clause is possible, but requires some careful parsing of the text and the concepts it uses. For instance, they protect certain rights enshrined in other parts of the Constitution, such as the “privilege” of habeas corpus protected against the federal government in Article I, Section 9. 45 (1980). On February 3, 1866, the Joint Committee on Reconstruction (also known as the "Joint Committee of Fifteen") voted in favor of a draft constitutional amendment proposed by Bingham. Parental Rights Amendment to the United States Constitution, Proposed "Liberty" Amendment to the United States Constitution, https://en.wikipedia.org/w/index.php?title=Privileges_or_Immunities_Clause&oldid=992646601, Clauses of the United States Constitution, Creative Commons Attribution-ShareAlike License, This page was last edited on 6 December 2020, at 11:06. The Privileges OR Immunities Clause The Fourteenth Amendment contains a clause much like the Comity Clause, but the intent is much different and it operates as a specific restriction upon state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” Rather, those rights are associated with state citizenship. We have seen, in the first number, what privileges and immunities were intended. , 4 Washington's Circuit Court Reports, page 380." Congressional Globe, 39th Congress, 1st Session, 1866. Privileges or Immunities privileges or immunities would ban caste legislation with respect to citizens' rights and place the principle of the Civil Rights Act in the Constitution. The Supreme Court has stated that there are implicit rights of national citizenship, such as coming to the national capital to transact business with the federal government. While this text fit nicely with procedural protections like the right to a jury, it was a peculiar fit with key substantive freedoms like the right to free speech. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. It was proposed in response to issues related to former slaves following the American Civil War. [22] The Fifth Amendment refers to "persons" and not "citizens" within its text, but it would only be incorporated by the Privileges or Immunities Clause as to citizens. One of the earliest judicial interpretations of the Privileges or Immunities Clause was Garnes v. McCann, Ohio Sup. Teach the Constitution in your classroom with nonpartisan resources including videos, lesson plans, podcasts, and more. . In the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers intended the Privileges or Immunities Clause to apply the Bill of Rights against the states. It hath that extent—no more…If the State laws do not interfere, those immunities follow under the Constitution".[4]. Check out our classroom resources organized by each article or amendment, and by key constitutional questions. However, that incorporation has instead been achieved mostly by means of the Due Process Clause of the Fourteenth Amendment. This comment by Howard was quoted by Justice, Curtis, Michael Kent. However, strictly speaking, these cases are not Bill of Rights cases. Another concerns the Clause’s application to basic private rights, like contract and property, that were important elements of the set of rights known as “civil rights” in the nineteenth century. The Republicans who controlled Congress refused to seat members from the former Confederate States, and formed a Joint Committee on Reconstruction to address the status of those states in the Union. Its drafters believed that such a rule of universal equality would forbid race discrimination with respect to civil rights. However, in various concurring and dissenting opinions, several  members of the Court over the years have emphasized the importance of the Privileges or Immunities Clause as one key ingredient or the key ingredient in applying against state and local governments various rights mentioned in the Bill of Rights, such as the rights to speak and worship freely. There was much discussion of this proposed clause as the amendment awaited ratification by the states. Bingham's full speech is, Article Four of the United States Constitution, Fourteenth Amendment to the United States Constitution, Second Amendment of the United States Constitution, "Chapter 3: The "privileges Or Immunities of a Citizen of the United States, Cong. Congress lacked the power to enforce the Privileges and Immunities Clause under the original, not amended U.S. Constitution according to Bingham. Ever since the Fourteenth Amendment’s enactment, lawyers, judges, and commentators have argued that the Clause means more than that. On June 13, 1866, the House approved a Senate-proposed version of the 14th Amendment, sending it to the states for approval. Damon Root | 2.23.2009 3:15 PM "[N]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." "[21] In the 2020 case of Ramos v. Louisiana, Justice Thomas again argued in favor of the Privileges or Immunities Clause rather than the Due Process Clause. Privileges or Immunities Clause. Michigan Senator Jacob M. Howard introduced the amendment in the Senate, and gave a speech in which he discussed the meaning of this clause. Indeed, the Fourteenth Amendment’s very text invites interpreters to search for all rights recognized by Americans as fundamental, from those enshrined in state constitutions to those contained in canonical texts (like the Declaration of Independence) to those protected by landmark civil rights laws (like the Civil Rights Act of 1866) to those affirmed by the lived experiences of ordinary Americans and the everyday practices of their governments. RIGHTS GUARANTEED: PRIVILEGES AND IMMUNITIES. By refusing to admit error, the Supreme Court divorced one of its most important constitutional achievements—protecting key freedoms against state abuses—from the Constitution’s text and history. Similarly, if the Privileges or Immunities Clause is in fact the true basis for applying most of the Bill of Rights provisions against state and local governments, the Clause performs much of the fundamental-rights function that is largely attributed to the Due Process Clause in Supreme Court caselaw. [20] In the 2019 case of Timbs v. Indiana where the court incorporated the Eighth Amendment against excessive fines against state governments, Justice Thomas again argued in a concurrence that the right should have been incorporated via the Privileges or Immunities Clause. Southern states were forced to ratify it in order to regain … . Black argued that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from John Bingham's congressional statements. The Interactive Constitution is available as a free app on your mobile device. As long as all citizens have the same property rights, for example, it does not matter what those rights are. He wrote: This [case] involves the equity as to what privileges or immunities are embraced in the inhibition of this clause. According to the other view, the Clause requires equality or non-discrimination. It was one of the Reconstruction Amendments. 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