Guest Essayist: Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D., Associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University
Amendment XIV, Section 1:
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.
Section 1, Clause 2 of the 14th Amendment says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This Privileges or Immunities Clause applies a prohibition previously limiting the Federal Government’s powers to the state governments.
From the Federal Government’s earliest days, the Supreme Court, the Congress, and the president assumed that when the Constitution used technical legal terms having fixed historic meanings, those terms were to be read as having those meanings. If we apply this rule of construction to the Privileges or Immunities Clause, the precedent to which we must look is Justice Bushrod Washington’s decision in the case of Corfield v. Coryell (1823). In that case, Washington—sitting as circuit justice for Pennsylvania—described the “privileges and immunities of citizens in the several States,” mentioned in Article IV, Section 2.
According to Washington:
The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign…. They may … be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State…; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…[,] to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”
The first case in which the Supreme Court had an opportunity to construe the Privileges or Immunities Clause was The Slaughter-House Cases (1873). There, the Court divided the privileges and immunities of American citizens between those that are protected by state governments and those that are, as Section 1 of the Fourteenth Amendment puts it, “privileges or immunities of citizens of the United States.” While it declined to list all of the ones that fell under the Fourteenth Amendment, it did say that virtually all of our rights remained rights of state citizenship, not rights “of citizens of the United States”—just as they had been before the Fourteenth Amendment.
So, some of the “privileges or immunities of citizens of the United States” that it listed were “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions[;] … the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States[;] … [a citizen’s right] to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government[;] … [t]he right to peaceably assemble and petition for redress of grievances[;] the privilege of the writ of habeas corpus[;] … the right to use the navigable waters of the United States, however they may penetrate the territory of the several States[;] … all rights secured to our citizens by treaties with foreign nations[;] … [the] privilege … to 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[; … and] the rights secured by the thirteenth and fifteenth articles of amendment, and by the [rest of the] fourteenth….”
Nowadays, liberal critics commonly decry the Court’s decision in Slaughter-House for not creating numerous new rights for federal courts and Congress to enforce against the states under the cover of the Fourteenth Amendment. However, as the Slaughter-House majority pointed out, to have taken a different position would have made the Court the “censor” of all state and local legislation with a supervisory power over all state laws. While the 20th-century Supreme Court carved out precisely such a role for itself, the Reconstruction-era justices remained committed to the Founders’ vision of a decentralized government in which most decisions were made by elected officials. It is unsurprising that they did not behave as modern liberal judges would behave.
Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. is an American historian and New York Times bestselling author. He is an associate professor of the Department of History and Non-Western Cultures at Western Connecticut State University.