Fourteenth Amendment Privileges and Immunities Clause

The Fourteenth Amendment, ratified after the Civil War, is an ambitious, sweeping Amendment that continues to impact lives in the United States. The need for such an Amendment was palpable. Although the Thirteenth Amendment abolished slavery across the nation, many Southern states passed laws, including restrictive voting rights laws, designed to keep newly freed African Americans in bondage.

The Fourteenth Amendment to the U.S. Constitution was Congress's answer to this problem.  This Amendment has six clauses, each designed to tackle issues that arose after the Civil War. These Clauses include the following:

• Citizenship Clause
• Apportionment Clause
• Public Debt Clause
• Due Process Clause
• Equal Protection Clause
• Privileges and Immunities Clause

This article will cover the privileges and immunities clause of the Fourteenth Amendment, a constitutional provision designed to protect the rights of American citizens.

Privileges and Immunities in the U.S. Constitution

The privileges and immunities clause is found in Section 1 of the Fourteenth Amendment:

"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. 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."

The phrase “privileges and immunities” also appears in Article IV of the Constitution:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

The intent and purpose of the privileges and immunities clause is simple: it prohibits states from discriminating against citizens of other states. 

For example, New York State cannot pass a law requiring noncitizens to declare their intention to become citizens before registering to vote. 

Interpretation and Application

As with most legislation, we must turn to the judicial branch, namely the Supreme Court, to help us understand and apply the rule of law after the ratification of these Amendments. The Supreme Court is the final arbiter of constitutional law. It interprets and applies constitutional laws and provisions.

The Slaughterhouse Cases

The first Supreme Court decision addressing privileges and immunities was a set of lawsuits known as "the Slaughterhouse Cases." The Slaughterhouse Cases involved a Louisiana law that granted a monopoly to a single corporation in the cattle slaughtering business. This means they were the only ones who butcher cattle in the state. 

A group of Louisiana butchers challenged the law because this law violated their rights under the Thirteenth and Fourteenth Amendments.  They argued that forcing them to give up their businesses and work for the monopoly amounted to unlawful involuntary servitude.  They also argued that the law violated the following provisions of the Fourteenth Amendment:

• Privileges and immunities clause
• Due process clause
• Equal protection clause

The Supreme Court disagreed with the butchers and upheld the Louisiana law.  In the Court's view, the Fourteenth Amendment only applied to slavery, and the privileges and immunities clause only applied to national citizenship rights, not state citizenship rights. 

The Court held the view that the proponents of this Amendment intended to transfer to the federal government powers that traditionally belong to state governments, by transforming the rights of each state's citizens into protected privileges and immunities of national citizenship. Furthermore, it acknowledged that the right to butcher animals was a state citizen's privilege, as states have the authority to legislate the regulation of activities such as cattle butchering.

In the Court's view, the Fourteenth Amendment only applied to privileges and immunities that existed because of the Constitution, the federal government or our national character. The Second Amendment right to bear arms is one example of a privilege that exists on because of the Constitution.

Most significantly, the Court ruled that this clause only included rights specifically enumerated in the United States Constitution.

Supreme Court Justice Stephen J. Field disagreed with the majority's conclusion.  He believed that the Fourteenth Amendment protected the fundamental rights of all American citizens from interference from individual states. 

Twining v. New Jersey

The majority holding in the Slaughterhouse Cases, which effectively nullified the privileges and immunities clause, remained good law until 1908 when the Court rendered a decision in Twining v. New Jersey.

Twining involved a New Jersey man charged with a misdemeanor and refused to testify at his trial. The prosecutor mentioned this failure to testify in their closing arguments. Twining sued on the theory that the prosecutor's statements violated his Fifth Amendment (part of the Bill of Rights) right against self-incrimination.

The Court did not rule on the central question in this case, a potential violation of his Fifth Amendment rights. Instead, they addressed this issue as a 14th Amendment issue, asking whether the prosecutor's comments violated Twining's 14th Amendment rights. According to Justice Moody:

"The general question, therefore, is whether such a law violates the Fourteenth Amendment either by abridging the privileges or immunities of citizens of the United States or by depriving persons of their life, liberty or property without due process of law."

The Court held that Congress did not incorporate the Fifth Amendment into the Fourteenth Amendment's due process or privileges and immunities clauses. Under the incorporation doctrine, Congress can extend certain protections enumerated in the Bill of Rights to actions by state governments.

Before the passage of the Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments), Courts declined to apply the Bill of Rights to states on the theory that these rights only applied on the federal level.

Oyama v. California

Oyama v. California is another landmark case that advances our understanding of the privileges and immunities of citizens. In this case, California passed the California Alien Land Law of 1913. This state law restricted landownership to persons eligible for U.S. citizenship.

The Alien Land Law impacted numerous Japanese inhabitants ineligible for U.S. citizenship. They devised various strategies to bypass this law, such as purchasing land in the names of their children. Consequently, California enacted a stricter law in 1920 to forbid such practices.

Kajiro Oyama purchased six acres of land in his six-year-old son Fred's name, but the State of California tried to take it away. The trial court and the Supreme Court of California sided with the state.

The Supreme Court reversed their decisions. The Court identified the right to own land as a fundamental right, holding that California had denied Oyama equal protection of the law and his privileges as a citizen.

Saenz v. Roe

The next significant Supreme Court privileges and immunities case was Saenz v. Roe. This case involved a 1992 California statute passed by the state legislature, restricting the right of new state citizens to receive welfare benefits. A few years later, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (PRWOA), which introduced new, stringent rules for welfare recipients.

The Saenz plaintiffs sued the State of California in their local District Court. The court found in favor of the plaintiffs, finding that the California law discriminated against new state citizens. The state appealed the decision to the Ninth Circuit Court of Appeals, which upheld the lower court's decision. They then appealed to the Supreme Court of the United States.

The Saenz Court named the right to travel as a fundamental right of citizenship. They relied on the Slaughterhouse Cases, which identified the right to travel among individual states:

"[A] citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State."

Saenz identified three components of the right to travel. They include the following:

• The right of a citizen to move from one state to another
• A citizen's right to the same treatment as a "welcome visitor rather than an unfriendly alien when temporarily present in the second State."
• For nonresidents who elect to pursue permanent residency, the right to the same treatment as other citizens of that State

The Saenz decision noted that "[c]itizens of the United States, whether rich or poor, have the right to choose to be citizens 'of the State wherein they reside.'"

McDonald v. City of Chicago

McDonald v. City of Chicago is a more recent Supreme Court case involving privileges and immunities. This case originated in the City of Chicago, Illinois, in 2008. At that time, the City had a city-wide handgun ban. The McDonald plaintiffs sued the city to overturn the ban. They argued the Second Amendment should be extended to the states via the Fourteenth Amendment.

The McDonald plaintiffs wanted the courts to overturn the Slaughterhouse cases. In order to do so, they needed to persuade the Courts that gun ownership is a fundamental right of citizenship.

The Supreme Court agreed with the McDonald plaintiffs, holding that the Second Amendment was applicable to state action through the Fourteenth Amendment's due process clause.

Justice Thomas agreed with the result but differed in his rationale. In a concurring opinion, he argued that the right to bear arms applied to the states under the privileges and immunities clause. Justice Breyer authored a dissenting opinion, arguing that the right to bear arms was not a fundamental right of citizenship.

The Incorporation Doctrine

When the Fourteenth Amendment passed Congress, it excluded the application of the Bill of Rights to the individual states. The incorporation doctrine allows the courts to incorporate the Bill of Rights into the Fourteenth Amendment.

We discussed the right to travel, the right to own land, and the right of U.S. citizens to move to another state above. The Supreme Court has also incorporated:

• Eighth Amendment protections against cruel and unusual punishment (Timbs v. Indiana)
• Sixth Amendment rights of the accused (Ramos v. Louisiana)

The privileges and immunities clause ensures that we all enjoy freedom from discrimination as we travel between the states. As such, through the application of the privileges and immunities clause, we enjoy the following as state citizens:

• Equal protection as we travel between states
• The guarantee of protection of our fundamental rights
• Cohesion among the states

The privileges and immunities clause will continue developing as our nation evolves into a more perfect union.