After the Civil War, the states formerly part of the Confederacy began restructuring their governments to rejoin the Union. However, although slavery had been abolished, many still had laws on the books that restricted the voting rights and other civil liberties of Black Americans. To ensure these rights were protected and force Confederate states to fall in line with Reconstruction efforts, Congress passed the 14th Amendment to the Constitution.
The 14th Amendment contains several concepts essential to constitutional law, one of them being the privileges and immunities clause.
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"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."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Unique among constitutional provisions, the clause prohibiting state abridgment of the privileges or immunities of United States citizens was rendered a practical nullity by a single decision of the Supreme Court issued within five years of its ratification. In the Slaughter-House Cases,1 the Court evaluated a Louisiana statute that conferred a monopoly upon a single corporation to engage in the business of slaughtering cattle. In determining whether this statute abridged the privileges of other butchers, the Court frustrated the aims of the most aggressive sponsors of the privileges or immunities Clause. According to the Court, these sponsors had sought to centralize in the hands of the Federal Government large powers hitherto exercised by the States by converting the rights of the citizens of each state at the time of the adoption of the Fourteenth Amendment into protected privileges and immunities of United States citizenship. This interpretation would have allowed businesses to develop unimpeded by state interference by limiting state laws abridging these privileges.
According to the Court, however, such an interpretation would have "transfer[red] the security and protection of all the civil rights" to the federal government, bringing within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States."
"[S]o great a departure from the structure and spirit of our institutions," the Court wrote, "is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character."
The justices concluded that "no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them," and that the "one pervading purpose" of this and the other War Amendments was "the freedom of the slave race."
Based on these conclusions, the Court held that none of the rights alleged by the competing New Orleans butchers to have been violated were derived from the butchers' national citizenship; insofar as the Louisiana law interfered with their pursuit of the business of butchering animals, the privilege was one that belongs to the citizens of the States as such. Despite the broad language of this clause, the Court held that the privileges and immunities of state citizenship had been left to the State governments for security and protection and had not been placed by the clause under the special care of the Federal government. The only privileges that the Fourteenth Amendment protected against state encroachment were declared to be those which owe their existence to the Federal Government, its National character, its Constitution, or its laws.2 These privileges, however, had been available to United States citizens and protected from state interference by operation of federal supremacy even prior to the adoption of the Fourteenth Amendment. The Slaughter-House Cases, therefore, reduced the Privileges or Immunities Clause to a superfluous reiteration of a prohibition already operative against the states.
Although the Court in the Slaughter-House Cases expressed a reluctance to enumerate those privileges and immunities of United States citizens that are protected against state encroachment, it nevertheless felt obliged to suggest some. Among those that it identified were the right of access to the seat of government and to the seaports, subtreasuries, land officers, and courts of justice in the several states, the right to demand protection of the Federal Government on the high seas or abroad, the right of assembly, the privilege of habeas corpus, the right to use the navigable waters of the United States, and rights secured by treaty.3 In Twining v. New Jersey,4 the Court recognized among the rights and privileges of national citizenship the right to pass freely from state to state,5 the right to petition Congress for a redress of grievances,6 the right to vote for national officers,7 the right to enter public lands,8 the right to be protected against violence while in the lawful custody of a United States marshal,9 and the right to inform the United States authorities of violation of its laws.10 Earlier, in a decision not mentioned in Twining, the Court had also acknowledged that the carrying on of interstate commerce is a right which every citizen of the United States is entitled to exercise.11
In modern times, the Court has continued the minor role accorded to the clause, only occasionally manifesting a disposition to enlarge the restraint that it imposes upon state action.12 In Hague v. CIO,13 two and perhaps three justices thought that the freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen, and, in Edwards v. California,14 four Justices were prepared to rely on the clause.15 In many other respects, however, claims based on this clause have been rejected.16
In Oyama v. California,17 the Court, in a single sentence, agreed with the contention of a native-born youth that a state Alien Land Law that resulted in the forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible for citizenship and precluded from owning land, deprived him of his privileges as an American citizen. The right to acquire and retain property had previously not been set forth in any of the enumerations as one of the privileges protected against state abridgment, although a federal statute enacted prior to the proposal and ratification of the Fourteenth Amendment did confer on all citizens the same rights to purchase and hold real property as white citizens enjoyed.18
In a doctrinal shift of uncertain significance, the Court will apparently evaluate challenges to durational residency requirements, previously considered as violations of the right to travel derived from the Equal Protection Clause, as a potential violation of the Privileges or Immunities Clause. Thus, where a California law restricted the level of welfare benefits available to Californians who have been residents for less than a year to the level of benefits available in the state of their prior residence, the Court found a violation of the right of newly arrived citizens to be treated the same as other state citizens.19 Despite suggestions that this opinion will open the door to guaranteed equal access to all public benefits,20 it seems more likely that the Court is protecting the privilege of being treated immediately as a full citizen of the state one chooses for permanent residence.21