Privileges and Immunities Clause

So, um, what I wrote in my dissertation was, um, addressing a topic which I, I knew that scholars had generally recognized was important but had not addressed.

And the importance is this: uh, the 14th Amendment Privileges or Immunities Clause, the one that gives rise to most, but not all of the historical disagreements, everyone who participated in the measure knew that it was based upon the existing Privileges and Immunities Clause of Article IV, Section 2.

So the Privileges or Immunities Clause of, of 14th Amendment says, "No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States." The authors of the amendment knew that had a very close relationship with, and said it in various different ways, uh, with the Article IV, Section 2, which says, "Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." So in trying to recover the original meaning, it seemed to me fairly, uh, important to know what did they mean in 1866 as to what Article IV required.

What was the, uh, the meaning of Article IV, Section 2, on which the 14th Amendment's Privileges or Immunities Clause was built? Uh, and I discovered some, some interesting things.

What grounding is there, if at all, in the actual text and original understanding of the 14th Amendment for what the courts have done, are doing, and might likely do? That's a very long answer, but [laughs]

No, that's, that's helpful.

So, uh, I mean, to get, to get into, to some of the material then that you're, that you're covering, um, I mean I've s- I've seen arguments that, uh, well c- well, we could say, um, of more discontinuity between Article 4 and the 14th Amendment expression of the privileges and immunities clauses of the, the similar language notwithstanding, that the two are functioning, um, for different purposes.

Not to say they're wholly unrelated, but they're doing two different things.

The Bill of Attainder Clause, slavery is a kind of bill of attainder, the abolitionists argued.

And most importantly, the Privileges and Immunities Clause of Article Four.

This is the most important of them.

Privileges and Immunities Clause recognized that there are two kinds of citizenship, federal and state, and prohibited the states from interfering with federal citizenship.

Pro-Constitution abolitionists like Douglass pointed out that Black people could be citizens of states, for example, Massachusetts.

A- and because of that, they could be federal citizens, 'cause at that time, you were a citizen of the federal government if you, if you were a citizen of a state.

And that meant that Black individuals could be citizens of the United States and therefore protected by the Privileges and Immunities Clause that prohibited states from depriving them of the privileges and immunities of federal citizenship.

When you put all those things together, what you have is an instrument that gives the government sufficient power to end slavery if it chooses to do so.

He held that, quote, the distinction between citizenship of the United States and citizenship of a state is clearly recognized and established.

And that because the Privileges and Immunities Clause of the 14th Amendment applied only to the rights associated with national citizenship and not those of state citizenship, it did not prohibit the state of Louisiana from creating the butchering monopoly.

So what this reading of the law meant was that the Privileges and Immunities Clause of the 14th Amendment was made ineffectual.

In Hall v.

Decor in 1878, the Supreme Court struck down a Louisiana Reconstruction statute prohibiting racial discrimination on common carriers.

If the state itself is buying or selling goods, it can favor its own citizens.

The Privileges and Immunities Clause of Article four states that citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

It prevents a state from discriminating against out-of-state citizens regarding fundamental rights or important economic activities like the ability to earn a livelihood.

Crucially, Article four does not protect corporations or aliens.

Address specific MBE traps.

Discuss the difference between the terms vague and overbroad in constitutional law.

Explain the distractor involving the Privileges and Immunities Clause of the Fourteenth Amendment, and clarify the assumption of general applicability in torts.

In constitutional law First Amendment questions, examiners frequently use vague and overbroad as competing answer choices.

But back to the Slaughterhouse Case that came down that day.

It was, in the end, a testing of the Privileges and Immunities Clause of the Fourteenth Amendment.

In 1869, the city of New Orleans, under its Republican state government, created a corporation to m-move the slaughterhouse of New Orleans.

There actually had never been a legitimate slaughterhouse in New Orleans.

Uh, allegations that the s- uh, that state that the tax impedes interstate real estate activity and commerce.

Other lawsuits that cite violations of the Privileges and Immunities Clause, uh, the Dormant Commen- uh, uh, Commerce Clause, due process, and equal protection.

Uh, one of them talked about the fact that it actually goes against the state law in New York on property taxes.

And so it's ...

And you don't have to take my word for it.

The greatest legal historians in my country, from Michael McConnell to Will Bode to John Harrison at the University of Virginia, have written article after article after article that this is supported by the Privileges and Immunity Clause of the 14th Amendment.

It's supported by the Equal Protection Clause of the 14th Amendment.

and their original understanding of those clauses.

It is also fundamentally about the movement of people and the rights they carry with them across borders.

This brings us to Article Four, Section Two, the Privileges and Immunities Clause.

The text of Article Four states that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

In structural terms, this serves as an anti-discrimination rule.