In 1865, after the defeat of the Confederacy, the former Confederate States formed new state governments through which they hoped to restore their relations with the Union. Although slavery was abolished, the new governments retained racially restrictive voting rules and restricted the freed slaves in many of the rights of ordinary life, like those related to property and contract. Other fundamental freedoms, like the rights to speak freely and worship freely, were also widely restricted by postbellum Confederate States, much as they had been restricted by these states prior to the Civil War in cases involving whites as well as free blacks. In December of 1865, Senators and Representatives came to Washington from those States to take their seats. 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. In the spring of 1866, the Joint Committee proposed a constitutional amendment that included a number of separate provisions. After modification on the floor of the House and Senate, that amendment was proposed by Congress in the summer of 1866 and ratified as the Fourteenth Amendment in 1868.
The Privileges or Immunities Clause of the Fourteenth Amendment was part of the amendment proposed by the Joint Committee on Reconstruction. 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.” The relationship between the two clauses is one of many subjects of debate, in part because the meaning of the provision in Article IV was itself a subject of dispute when the Fourteenth Amendment was drafted. Although other provisions in the joint committee’s proposal were amended in the House and Senate, the Privileges or Immunities Clause emerged from Congress as proposed by the joint committee. In the congressional debates, the Clause was regarded as an important part of Section 1 of the Amendment, but debate focused mainly on Sections 2 and 3, which dealt with issues of political power.
According to the Supreme Court’s cases, the privileges and immunities that no state shall abridge include only a limited number of legal protections related to distinctively national citizenship as opposed to state citizenship. In the Court’s view, the basic legal rights of the private law, like property, contract, and family relations, are not associated with citizenship of the United States as such. Rather, those rights are associated with state citizenship. Nor, according to the Court, do the rights of national citizenship include the protections of the first eight amendments insofar as those limitations might apply against the States as opposed to the United States. 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. 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. The Court has found some rights of national citizenship under the Clause, like the right to travel from state to state and establish residency in a new state.
Ever since the Fourteenth Amendment’s enactment, lawyers, judges, and commentators have argued that the Clause means more than that. One debate is whether the privileges and immunities of citizenship of the United States include the protections of the Bill of Rights—especially rights of speech, press, and religion—as applied against the States. 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. Those who believe that the Clause imposes some restrictions on the states regarding civil rights generally take one of two approaches. According to one view, often called substantive, the Clause mandates that citizens enjoy certain legal advantages, like the right to contract. Proponents of this interpretation often say that the states may regulate privileges and immunities but not take them away and so must regulate them reasonably. According to the other view, the Clause requires equality or non-discrimination. On this interpretation, to abridge one citizens’ private-law privilege or immunities is to limit those rights relative to those of other citizens. As long as all citizens have the same property rights, for example, it does not matter what those rights are. The central historical example of an unequal law from the framing of the Fourteenth Amendment is a Black Code, the kind of racially discriminatory restriction of the private rights of freed slaves enacted in many ex-Confederate states immediately after the Civil War.
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. 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.
The Privileges or Immunities Clause of the Fourteenth Amendment operates with respect to the civil rights associated with both state and national citizenship. The Clause refers to the privileges and immunities of citizens of the United States, and Section 1 of the Amendment also makes citizens of the United States citizens of the state wherein they reside, thus ensuring that the individuals who are citizens of the United States will also be citizens of a state if they live in one. Privileges and immunities of citizens are civil rights as understood in nineteenth-century legal classifications. They are the basic rights of ordinary life, especially owning property, making contracts, and forming domestic relations, but do not include either political rights like voting, or special legal benefits like franchises granted by the government to private people primarily to advance the public interest. (Classifying many twenty-first century government benefits as between civil rights and special privileges often presents difficult questions concerning the application of an old legal concept to new circumstances.)
With respect to the civil rights of state citizenship, the Clause provides for universal equality. 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. It requires that whatever those rights are, all citizens shall have them alike. Its drafters believed that such a rule of universal equality would forbid race discrimination with respect to civil rights. They thought that the post-Civil War Black Codes enacted by the former Confederate States, which limited the civil rights of freed slaves, abridged the freed slaves’ civil rights by limiting them relative to those enjoyed by white citizens. 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. They deliberately formulated their principle in terms that did not refer specifically to race, and so posed for themselves and their successors a hard problem.
Because it refers to citizens of the United States, the Clause also operates as to the privileges and immunities of national citizenship. In general, legal protections associated with national citizenship are immune from limitation by state law because of the supremacy of federal law under Article VI of the Constitution. With respect to the privileges and immunities of national citizenship that limited the states before the Fourteenth Amendment was adopted, the effect of the Clause is indirect but important. Although the states were bound to respect the rights of national citizenship before the Amendment was adopted, the power of Congress to adopt legislation affirmatively protecting those rights was a matter of considerable controversy. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce the Amendment, including the Privileges or Immunities Clause. Congress now has authority to create protections for rights of national citizenship that it may previously have lacked.
This essay is part of a discussion about the Privileges or Immunities Clause with Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University. Read the full discussion here.
Determining the content of the privileges and immunities of national citizenship that pre-dated the Fourteenth Amendment requires looking to sources of law other than the Amendment, which refers to but does not itself create those privileges and immunities. Some federal statutes create civil rights and hence rights of national citizenship. The patent statutes do so, because they provide for intellectual property and property is a civil right. The Clause does not, however, expand the legislative authority of Congress beyond what is enumerated elsewhere in the Constitution. It does not give Congress authority to legislate as to property and contract generally, for example. Rights of property and contract are civil rights, but they are associated mainly with state and not national citizenship because power over them is generally left with the states and not granted to Congress. 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. 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. Whether that is so depends on the content of national citizenship, a category referred to but not created by the Fourteenth Amendment.
Many supporters of the Fourteenth Amendment in Congress and the states believed that the Privileges or Immunities Clause would impose on the states some or all of the limitations imposed on the federal government by the first eight amendments. They believed, in today’s parlance, that the Clause wholly or partially incorporated the Bill of Rights as against the states. Whether it did so is a difficult question. That it would do so was indeed widely believed. That conclusion is not easy to derive from the text, however, because it requires that there be rights of national citizenship that, but for the Clause, would not limit the states. Squaring that assumption with the Supremacy Clause is possible, but requires some careful parsing of the text and the concepts it uses.
Ask any American for a list of the most important Supreme Court cases of the last century, and certain canonical names are sure to follow: Gideon v. Wainwright (1963), ensuring a right to counsel; Engel v. Vitale (1962), ending official prayer in public schools; Miranda v. Arizona (1966), protecting the rights of the accused; New York Times v. Sullivan (1964), affirming America’s commitment to robust free speech rights. For most Americans, these cases represent the core of our Constitution and, in particular, the power of the key protections enshrined in our Bill of Rights. However, strictly speaking, these cases are not Bill of Rights cases.
As originally written and ratified, the Bill of Rights protected against abuses by the federal government, not—as was the case in each of the canonical decisions listed above—against abuses by state and local governments. 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.
Today, the Fourteenth Amendment is one of the most powerful provisions in the U.S. Constitution. The Supreme Court has read it to protect a variety of rights against state abuses—both substantive rights (like religious liberty) and procedural rights (like the right to a jury trial); those explicitly written in the Constitution (like those in the Bill of Rights) and those that are not (like the right to privacy); those that apply in the political realm (like the right to vote) and those that have nothing to do with voting (like the rights of minors). Can a single sentence in a constitutional amendment ratified nearly a century after the Founding really justify this robust body of case law?
The Fourteenth Amendment and the Bill of Rights
Let’s begin with the Bill of Rights. The Supreme Court began to apply key Bill of Rights protections against state abuses in the late nineteenth century. Was this move consistent with the Fourteenth Amendment’s text and history?
As written by Ohio Congressman John Bingham, a crucial clause of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the nineteenth century (just as today), these “privileges” and “immunities” included key Bill of Rights protections like free speech. Even the infamous Dred Scott v. Sandford (1857) decision—the most widely read Supreme Court decision of its day— recognized as much, referring to the Bill of Rights as “rights and privileges of citizens” and specific protections like the “liberty of speech” and the right to “keep and carry arms” as “privileges and immunities of citizens.” Bingham’s Privileges or Immunities Clause simply declared that in post-Civil War America, states would no longer be permitted to abuse these fundamental rights—as they so often had in the pre-Civil War and Reconstruction-era South. The centrality of these rights, especially the rights of robust political expression, to the Reconstruction generation is obvious in the political slogan that helped launch the Republican Party—the driving force of the Fourteenth Amendment. 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.”
The Clause’s history confirms this reading. When explaining his Amendment, Bingham consistently tied the Privileges or Immunities Clause to the individual protections enshrined in the Bill of Rights. And other key Reconstruction leaders—like the Amendment’s spokesperson in the U.S. Senate, Michigan Senator Jacob Howard—followed suit.
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. For instance, at its core, the First Amendment’s Establishment Clause was originally designed in part to protect a state’s authority to set its own church establishment policy without interference from the federal government. Following the ratification of the Fourteenth Amendment, it made little sense to apply this particular structural right against the states. Therefore, when deciding which Bill of Rights protections count as “privileges” and “immunities” for purposes of the Fourteenth Amendment, interpreters must analyze each amendment and separate out its individual-rights aspects (e.g., an individual’s right to free speech) from its states’-rights aspects (e.g., a state’s right to set its own church establishment policy).
Finally, the Civil War and Reconstruction transformed the core meaning of certain key Bill of Rights protections. Take the Second Amendment, for instance. At the Founding, this Amendment protected the collective right to bear arms in a well-regulated militia for purposes of protecting the American people against centralized tyranny. However, by the time “We the People” ratified the Fourteenth Amendment, the Civil War—a war won by a strong federal army over rebellious states—shattered this original vision. Rather than requiring a gun for purposes of mustering as part of one’s local militia, Reconstruction-era families—particularly, African-American families and white Unionists in the South—needed guns in their homes to protect themselves and their families from local violence by white vigilantes. In the process, the Second Amendment’s core meaning shifted from a collective right addressing the threat of federal government oppression to an individual right—an individual “privilege” of American citizenship—targeting state and local abuses.
This essay is part of a discussion about the Privileges or Immunities Clause with John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law. Read the full discussion here.
Beyond the Bill of Rights
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. 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. While this “privilege” isn’t in the Bill of Rights, it is a fundamental “privilege” of individuals protected by the Fourteenth Amendment.
The Fourteenth Amendment also protects certain “privileges” and “immunities” that are not explicitly listed in the Constitution (like the right to privacy). 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. For judges, this means reaching beyond the judges’ own individual preferences and searching for the fundamental rights actually recognized by the American people.
Finally, while the Fourteenth Amendment applies to a broad range of civil rights, it does not apply to political rights like voting, jury service, militia service, and office-holding. 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. Under Article IV, a state like Georgia must grant a traveling New Yorker the same civil rights as its native Georgians. Even so, Georgia does not have to allow the visiting New Yorker to vote in its elections or serve on its juries. The same is true of the Fourteenth Amendment. Importantly, this reading is confirmed by the Fourteenth Amendment’s history, as Reconstruction leaders consistently emphasized that their proposed Amendment would not reach voting rights. Simply put, Northerners in 1868 were not yet ready for nationally guaranteed African American suffrage.
Of course, the later Fifteenth Amendment did directly address and prohibit race-discriminatory voting laws; much as other later Amendments banned other voting exclusions, such as the Nineteenth Amendment’s prohibition of sex-discriminatory voting laws and the Twenty-Sixth Amendment’s ban on certain age-discriminatory voting laws. In the mid-1860s, two other constitutional clauses were also central to the debate about voting rights. First, many Reconstruction Republicans embraced a broad reading of the original Constitution’s Article IV Guarantee Clause, otherwise known as the Republican Government Clause. Second, the second section of the Fourteenth Amendment did explicitly address voting rights issues left untouched by the Amendment’s opening section. Indeed, the Section 2 of the Fourteenth Amendment introduced the words “the right to vote” into the Constitution for the first time—a phrase that today appears no less than five times in the document as amended and re-amended over the centuries.
The Document and the Doctrine: A Word of Caution
In the end, despite the strong textual, structural, and historical evidence supporting a robust reading of the Privileges or Immunities Clause, the Supreme Court gutted this key provision shortly after the Fourteenth Amendment’s ratification—in the 1873 Slaughter-House Cases. The Court then waited decades before beginning to protect Americans against state violations of various fundamental rights, first in 1897 in a case involving the right to just compensation and then in a string of cases in the twentieth century involving core individual freedoms, including free speech, religious liberty, the rights of the accused, and the right to privacy. However, even then, the justices didn’t use the clean text of the Privileges or Immunities Clause to make this move, instead relying on the Fourteenth Amendment’s Due Process Clause. 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.
Bingham and his fellow Fourteenth Amendment Framers deserve better. Through the Fourteenth Amendment (and its Privileges or Immunities Clause), they envisioned a new America, one in which Americans were finally protected from state violations of their most cherished rights. 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. As is often the case, the Constitution itself is more inspiring—and sensible—than the Supreme Court’s handiwork.
On April 15, 1873, the Supreme Court decided in Bradwell v. Illinois, striking down the Myra Bradwell’s challenge to the…