Privileges or 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.

The n- title of my, um, dissertation was exploring, quote, "That unexplored clause of the Constitution," uh, the meanings of the privileges and immunities of citizens before the 14th Amendment And that term, that unexplored clause of the Constitution, was a phrase that was in a, a- an opinion of the United States attorney general, uh, in 1856 or 1857, effectively saying, again, this is one of the premier jurists of the country, "This hasn't been explored yet.

We haven't really figured this one out yet.

And that was a provision in Missouri's Compromi- Constitution that said free Blacks can't enter the state.

Um, this is the, after they, after they agree on, okay, we'll let you come in with slavery by thirty-six thirty, that's the most famous part of the Missouri Compromise.

And so we're going to give some illumination to some of that legal history that we think is pretty important.

And so what could be more important then the 14th Amendment for what we do here at IJ, especially the Privileges or Immunities Clause, which the Supreme Court buried in 1873.

And part of our mission, part of our DNA, really, since we were founded in 1991, is to reinvigorate the Privileges or Immunities Clause.

So a couple years ago, when we saw this article come out, General Law and the 14th Amendment, which is I mean, a lot of it is really about how to interpret the privileges or immunities clause.

And it's by our friend Will Baude and also Judd Campbell, who's been on our Short Circuit podcast and Steve Sachs, who we enjoy his work, too.

We thought, you know, this would be a good one for this new podcast.

Yeah.

Um, so, so, I mean, there may be a lot that was keeping them from, from, you know, totally thinking clearly about it, but, but there is a way in which, I mean, there's a way in which justice Miller was right, that it would be a really big deal to, to second guess every area of, uh, of general law, fundamental rights and liberties.

States can't create second-class citizens and states can't deny the rights of American citizens in their state.

Then we have the Privileges or Immunities Clause, which says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

This was intended to protect the fundamental rights of American citizens from state governments violating those rights.

The phrase privileges and immunities had a specific legal meaning in 1868.

It was drawn from Article IV's Privileges and Immunities Clause and from pre-Civil War legal traditions.

John Bingham, the amendment's primary drafter, intended this clause to apply the entire Bill of Rights to the states, making the federal government the guarantor of individual rights throughout the United States.

The idea was that the rights of every individual American citizen could not be abridged by state law.

Louisiana had granted a monopoly on to one slaughterhouse company, effectively putting independent butchers out of business.

But this is explained in The Second Founding: An Introduction to the 14th Amendment.

The Privileges or Immunities Clause, the privileges or immunities of citizens, right, the clause that says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens," it refers to natural rights or civil rights, which are just natural rights modified by the laws of civil society.

Political rights are different.

The right to vote, to hold office, to serve on jury, to serve on a militia, these things presuppose the existence of political society.

But he actually goes back and researches.

He does so under what's called the Privileges or Immunities Clause of the 14th Amendment.

And he goes and researches, why did they write this? What did the framers of the 14th Amendment understand and believe? And in particular, he chronicles how immediately after the Civil War, you had bands of marauders, you had precursors of the KKK who would come to freed black men, freed slaves, and they would disarm them.

And laws seeking to disarm them meant that those freed slaves could be victims to lynching and all sorts of abuse.