Privileges or Immunities Clause Poll

[A18]

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=526&invol=489

Some theories noted in Saenz v. Roe.

[Emsworth]

The clause clearly and undoubtedly incorporates the first eight amendments.

[A18]

I added a page on Wikipedia that briefly touches on the theories surrounding the amendment: http://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause

[Emsworth]

Which is closest to your view?

[A18]

Option 2

[A18]

The other views are not entirely without merit, however...

For example, one could perhaps conclude that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to be an anti-discrimination provision modeled on the Privileges and Immunities Clause of Article IV: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Supreme Court has interpreted this as meaning that each state must grant visitors from other states the same rights it gives to its own citizens, while each state is allowed to define those rights as it sees fit.

It could be argued, by analogy, that the Fourteenth Amendment's Privileges or Immunities Clause requires each state to grant the same rights to all classes of its own citizens.

However, if that was indeed the intent, the wording was terrible.

In fact, no matter what the intent, the wording was terrible. Alas, for the clause's central champion, John Bingham, its "euphony and indefiniteness of meaning were a charm."

[Emsworth]

The other views are not entirely without merit, however...

Yes, that is certainly true. Really, the only reason for which one can say with certainty that "privileges or immunities" refers to "rights secured by the first eight amendments" is because Congressional debates and speeches, writings, and newspaper articles of the time indicate that this was the original understanding.

But even then, "privileges or immunities" is a terribly ambiguous phrase. It doesn't seem to have had a settled legal meaning, like "due process of law" or "during good behavior," which, while they may literally be ambiguous, were well-understood legal terms.

[A18]

Really, the only reason for which one can say with certainty that "privileges or immunities" refers to "rights secured by the first eight amendments" is because Congressional debates and speeches, writings, and newspaper articles of the time indicate that this was the original understanding.

The problem is that even those sources don't seem sure of its precise meaning. They say it incorporates the first eight amendments, yes ... but is that its sole effect? Example, Mr. Bingham:

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.

Those eight amendments are as follows: (Here Mr. Bingham recited verbatim the first eight articles.)

On the other hand (from the same speech):

...[N]o State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment...

[A18]

Thomas provides some insight in his dissent in Saenz v. Roe:

The colonists' repeated assertions that they maintained the rights, privileges and immunities of persons "born within the realm of England" and "natural born" persons suggests that, at the time of the founding, the terms "privileges" and "immunities" (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons. Presumably members of the Second Continental Congress so understood these terms when they employed them in the Articles of Confederation, which guaranteed that "the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." Art. IV. The Constitution, which superceded the Articles of Confederation, similarly guarantees that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Justice Bushrod Washington's landmark opinion in Corfield v. Coryell reflects this historical understanding. In Corfield , a citizen of Pennsylvania challenged a New Jersey law that prohibited any person who was not an "actual inhabitant and resident" of New Jersey from harvesting oysters from New Jersey waters. Justice Washington, sitting as Circuit Justice, rejected the argument that the New Jersey law violated Article IV's Privileges and Immunities Clause. He reasoned, "we cannot accede to the proposition ... that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens." Instead, Washington concluded:

We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; ... and an exemption from higher taxes or impositions than are paid by the other citizens of the state; ... the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities.

Washington rejected the proposition that the Privileges and Immunities Clause guaranteed equal access to all public benefits (such as the right to harvest oysters in public waters) that a State chooses to make available. Instead, he endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental  rights that belong to all citizens of the United States.

Justice Washington's opinion in Corfield  indisputably influenced the Members of Congress who enacted the Fourteenth Amendment ... t appears that no Member of Congress refuted the notion that Washington's analysis in Corfield  undergirded the meaning of the Privileges or Immunities Clause.

[Emsworth]

Justice Washington's opinion in Corfield  indisputably influenced the Members of Congress who enacted the Fourteenth Amendment ... t appears that no Member of Congress refuted the notion that Washington's analysis in Corfield  undergirded the meaning of the Privileges or Immunities Clause.

That is certainly true. We are therefore left with the idea that "privileges and immunities" of Article IV are different from "privileges or immunities" of the 14th Amendment. But this is not necessarily as difficult to accept as it seems. After all, Article IV speaks of the "Privileges and Immunities of Citizens in the several states." On the other hand, the 14th Amendment speaks of "privileges or immunities of citizens of the United States." Therefore, I have no qualm in distinguishing between the two; the former refers to privileges and immunities enjoyed as state citizens (fundamental liberties afforded by the common law), and the latter to privileges or immunities enjoyed as U.S. citizens (the protections of the Bill of Rights).

I would say that the privileges or immunities clause, at the very least, incorporates the Bill of Rights.

[A18]

I would say that the privileges or immunities clause, at the very least, incorporates the Bill of Rights.

I agree that it incorporates the first eight amendments. I might simply add those rights that bind the country together as a single nation, such as the right of free travel between states.

[Emsworth]

I might simply add those rights that bind the country together as a single nation, such as the right of free travel between states.

That seems like a reasonable idea. But isn't that already covered by Art. IV's privileges and immunities clause?

In any event, this just convinces me that the wording was absolutely horrible. I am almost convinced to use Robert Bork's term: inkblot.

[A18]

Do they publish old law books? I'd like to get my hands on one.

[Emsworth]

Do they publish old law books? I'd like to get my hands on one.

You mean a book written during that era? Hmm, I don't know if they are still published, but a good library would have a copy available. (Another possibility may be to look for an online copy, but that might be difficult.)

There are, I think, a lot of more recent books relating to the 14th Amendment still in print (many of them cited in Justice Thomas' opinion above).