17.2 14th Amendment Privileges or Immunities Clause

The 14th Amendment's Privileges or Immunities Clause aimed to protect fundamental rights of national citizenship from state infringement. Ratified in 1868, it was designed to safeguard newly freed slaves and ensure equal protection under the law.

However, the 1873 Slaughter-House Cases narrowly interpreted the clause, limiting its effectiveness. This shifted focus to the Due Process and Equal Protection Clauses, sparking ongoing debate about reviving the Privileges or Immunities Clause to protect individual rights.

Historical context of the 14th Amendment Privileges or Immunities Clause

Ratification and purpose of the 14th Amendment

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• Ratified in 1868 as part of the Reconstruction Amendments following the Civil War
• Designed to protect the rights of newly freed slaves and ensure equal protection under the law
• Responded to the Black Codes and other discriminatory state laws that sought to limit the rights of newly freed slaves and other minorities (Jim Crow laws, literacy tests for voting)
• Aimed to address the lack of federal protection for individual rights against state infringement

The Privileges or Immunities Clause

• Found in Section 1 of the 14th Amendment
• States: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
• Intended to protect fundamental rights of national citizenship from state infringement (right to travel, right to due process, right to equal protection under the law)
• Seen as the primary vehicle for protecting individual rights against state action by the 14th Amendment's drafters (John Bingham, Jacob Howard)
• Sought to establish a federal standard for the protection of civil rights and liberties

Slaughter-House Cases and the 14th Amendment

Background of the Slaughter-House Cases

• Decided in 1873, the first major Supreme Court cases to interpret the 14th Amendment's Privileges or Immunities Clause
• Involved a challenge to a Louisiana law that granted a monopoly to a single slaughterhouse company
• Butchers argued that the law violated their right to practice their trade under the Privileges or Immunities Clause
• Presented an opportunity for the Supreme Court to define the scope and meaning of the Privileges or Immunities Clause

Supreme Court's narrow interpretation

• In a 5-4 decision, the Supreme Court narrowly interpreted the Privileges or Immunities Clause
• Held that the clause only protected rights of national citizenship (right to travel, access to federal courts), but not fundamental rights of state citizenship (right to practice a trade)
• Distinguished between rights of state citizenship and rights of national citizenship, finding that the 14th Amendment only protected the latter from state infringement
• Majority opinion, written by Justice Samuel Miller, expressed concern that a broad reading of the clause would give the federal government too much power over the states and alter the federal-state balance

Impact of Slaughter-House Cases on 14th Amendment Jurisprudence

Rendered the Privileges or Immunities Clause ineffective

• The Slaughter-House Cases effectively rendered the Privileges or Immunities Clause a dead letter
• Rarely invoked in subsequent cases to protect individual rights against state action
• Shifted the focus of 14th Amendment jurisprudence to the Due Process and Equal Protection Clauses, which became the primary vehicles for protecting individual rights in the 20th century (Roe v. Wade, Brown v. Board of Education)

Criticism of the Slaughter-House Cases

• Critics argue that the Slaughter-House Cases were wrongly decided and contrary to the original intent of the 14th Amendment's drafters
• The decision has been criticized for limiting the scope of the 14th Amendment and failing to protect the rights of newly freed slaves and other minorities from state discrimination
• Some scholars argue that the Slaughter-House Cases set back the development of civil rights law by several decades
• A more robust interpretation of the Privileges or Immunities Clause could have provided greater protection for individual rights

Revival of the 14th Amendment Privileges or Immunities Clause

Calls for a revival of the Privileges or Immunities Clause

• In recent years, some scholars and judges have called for a revival of the Privileges or Immunities Clause to protect fundamental rights (right to earn a living, right to keep and bear arms, right to travel)
• Proponents argue that the clause provides a more textually and historically grounded basis for protecting individual rights than the Due Process and Equal Protection Clauses
• The Due Process and Equal Protection Clauses have been criticized as being overly broad and subjective

Potential applications of a revived Privileges or Immunities Clause

• In McDonald v. City of Chicago (2010), Justice Clarence Thomas argued in a concurring opinion that the Privileges or Immunities Clause, not the Due Process Clause, should be the basis for incorporating the Second Amendment right to keep and bear arms against the states
• Some scholars have argued that a revived Privileges or Immunities Clause could provide greater protection for economic liberties, such as the right to pursue an occupation free from excessive government regulation
• A revived Privileges or Immunities Clause could potentially strengthen the protection of other fundamental rights, such as the right to privacy or the right to vote

Criticisms and challenges to reviving the Privileges or Immunities Clause

• Critics argue that a revived Privileges or Immunities Clause would give the federal judiciary too much power to strike down state laws
• Concerns that it could lead to a return to the Lochner era of economic substantive due process, where the Supreme Court struck down labor regulations and other progressive legislation
• The Supreme Court has not yet fully embraced a revival of the Privileges or Immunities Clause, but some justices have expressed interest in revisiting the Slaughter-House Cases and exploring the clause's potential for protecting individual rights in modern constitutional law