Defining American privileges and immunities

May 5
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What are the constitutional rights of American citizens? What is their legal foundation? Rather remarkably, there are no clear answers to these questions. If asked, most would probably point to some or all of the first 10 amendments to the U.S. Constitution, the Bill of Rights: the rights of free speech, free press and the free exercise of religion, etc. Although many Americans might think these rights protect them against the wrongful actions of any official with a badge, those most familiar with the Constitution know that the Bill of Rights binds only the national government. Under the original Constitution, state officials remained free to abridge speech, impose religious orthodoxy and take private property without paying a dime.

Today, of course, courts do apply the Bill of Rights against both state and federal officials. They do so because of the addition of the 14th Amendment. Adopted in the aftermath of the Civil War, the 14th Amendment declares (among other things): “No state shall make or enforce any law abridging 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.” Unlike the Bill of Rights, this amendment expressly requires state officials to respect the rights and privileges of national citizenship. According to the Supreme Court, this includes most of the provisions in the Bill of Rights. So, for example, both state and federal officials must respect your freedom of speech and your right to free exercise of religion.

What is not clear, however, is why the 14th Amendment forces the states to follow the federal Bill of Rights. The justices of the Supreme Court and the finest minds in the American legal academy have disputed the matter for more than a century. The current members of the U.S. Supreme Court cannot even agree on which provision in the 14th Amendment prevents the state police from knocking down your door when you criticize the government, seek solace from your God or take refuge in your home. Although almost all constitutional scholars (and likely the justices themselves) believe that the most likely text is the Privileges or Immunities Clause, the court as a whole remains reluctant to revisit the clause for fear of opening a Pandora’s box of new and unheard-of constitutional claims.

In my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, I explore the meaning of the Privileges or Immunities Clause and explain why its proper enforcement includes the Bill of Rights but does not open the floodgates to an unending list of judicially constructed rights. In the remainder of this post, and in subsequent posts (thanks, Volokh Conspiracy!), I will talk about some of the book’s basic ideas and explain why the issue of American privileges and immunities may soon be before the Supreme Court.

Debating the 14th Amendment

In the summer of 1866, while the country considered whether to ratify the 14th Amendment, members of the Southern Loyalist Convention gathered in convention to support the proposed amendment and its declaration that “no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States.” Loyalist and Alabama Judge M.J. Saffold insisted that “the constitutional guarantees of free speech, free press [and] constitutional comity between the states must prevail.” Convention delegate and Texas Judge Lorenzo Sherwood announced, “We stand on the constitutional rights of the citizen; those rights specified and enumerated in the great charter of American liberty…. [T]here is no power, legislative executive or judicial, State or national, that has authority to transgress or invade them; and the protection of these rights must be made co-extensive with American citizenship.”  The Loyalist “Appeal,” which was published in newspapers across the country, complained of “despotic” state laws abridging “the constitutional guaranties of the right to peacefully assemble and petition for redress of grievances” and that “nullified constitutional guaranties of freedom of speech and free press.”

The voices of the Southern Loyalist Convention, and many more like them, illuminate the public’s understanding of the rights of national citizenship that would soon be protected under the ratified 14th Amendment. This evidence strongly suggests that the public was broadly aware that the proposed amendment would require the states to protect the constitutionally enumerated rights of American citizenship, including those listed in the Bill of Rights. Although scholars often assume a historical “silence” regarding the original understanding of the Privileges or Immunities Clause, there was, in fact, a robust discussion of American privileges and immunities during (and immediately following) the political conventions and campaigns of 1866.  This discussion did not take place in the state ratifying assemblies (as had been the case at the time of the founding); instead, it took place in the public square. These debates did not create the meaning of the 14th Amendment, they illuminate an understanding of national privileges and immunities that had developed in the period between the founding and the Civil War.

In subsequent posts, I will explain how this evolved understanding of the rights of American citizenship became constitutionalized through the adoption of the Privileges or Immunities Clause. For now, here is the bottom line:  I believe the historical evidence strongly supports reading the clause as requiring the states to protect enumerated constitutional rights such as those listed in the Bill of Rights. However, the Privileges or Immunities Clause should not be read as requiring the states to protect unenumerated common-law civil rights.  The latter was left to the control of the states subject only to the requirements of due process and equal protection.

Put another way, I think Judge John Day had it exactly right in one of the earliest judicial interpretations of the Privileges or Immunities Clause:

This [case] involves the equity as to what privileges or immunities are embraced in the inhibition of this clause. We are not aware that this has been as yet judicially settled. The language of the clause, however, taken in connection with other provisions of the amendment, and of the constitution of which it forms a part, affords strong reasons for believing that it includes only such privileges or immunities as are derived from, or recognized by, the constitution of the United States. A broader interpretation opens into a field of conjecture limitless as the range of speculative theories, and might work such limitations of the power of the States to manage and regulate their local institutions and affairs as were never contemplated by the amendment. (Garnes v. McCann, Ohio Sup. Ct., 1871.)

Next: The Difference Between the “Privileges and Immunities” of Article IV and the “Privileges or Immunities” of the 14th Amendment.

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Eugene Volokh | May 5