The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause

by Douglas Kendall, President, & David Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

Today, the Constitutional Accountability Center (CAC) will release a report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause, the first of a series of “narratives” about the text and history of critical constitutional provisions. The report is available here. Jack Balkin, who serves on CAC’s Advisory Board, has kindly given us the opportunity to start a conversation about this report and the Privileges or Immunities Clause on his blog in a series of posts over the next several days.

Why start with the Privileges or Immunities Clause? Of all the great words and important clauses in our Constitution, why would a new organization with a mission of promoting the progressive force of the Constitution’s text and history choose as the star of its first narrative a clause that has been a virtual dead letter for 135 years? We will discuss two answers to this valid question in this series of posts.

The first answer is that the hole left in the Constitution by the Supreme Court’s refusal to honor the text and history of the Privileges or Immunities Clause has produced a gaping chasm that separates Americans today in the debate over the protection of fundamental human rights and liberties. The text matters, and when it comes to the constitutional protection of civil and human rights, the Privileges or Immunities Clause is indispensible text. Second, the left/right/center scholarly consensus about the Court’s shabby treatment of the Privileges or Immunities Clause – coupled with recent murmurs on the Court itself – suggest that the time is ripe for a serious push towards a reconsideration of the Clause and the central role it was supposed to play in American constitutional law.

In 1866, Schuyler Colfax, the Speaker of the House of Representatives, called Section One of the Fourteenth Amendment “the gem of the Constitution . . . because it is the Declaration of Independence placed immutably and forever in our Constitution.” The Privileges or Immunities Clause is at the core of Section One: it was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the “unalienable rights” to which the Declaration referred. Yet, the Clause was never allowed to fulfill its promise. The Supreme Court interred the Privileges or Immunities Clause in the Slaughterhouse Cases in 1873, and it has been little more than a dead letter ever since. Slaughterhouse is an embarrassment to anyone who cares about the text and history of the Constitution; it wrote out of the Constitution one of the document’s most important protections of human and civil rights. And, it is sorely missed today. Without any clear textual hook in the Constitution for protecting fundamental rights against the actions of state and local governments, debates over the basic human rights all Americans possess have run aground, mired in endless debates about whether the Constitution’s text, in fact, protects substantive liberty.

The text and history of the Privileges or Immunities Clause are clear and straightforward. The text – following on the heels of the Citizenship Clause’s grant of national birthright citizenship – provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The key words – privileges or immunities – have gone out of favor in modern American usage, but for most of our history, a privilege was the same thing as a right. This is how James Madison used the word when proposing the Bill of Rights – he called “freedom of the press” and “rights of conscience” the “choicest privileges of the people.” This example is just the tip of the iceberg; as Professors Akhil Amar and Michael Kent Curtis have painstakingly shown, similar examples abound from the founding era through the Civil War. Thus, the words of the Clause secure the fundamental rights of American citizens against hostile state action.

In adding this protection of substantive liberty, the Reconstruction framers acted both from principle and experience. They sought to add this protection to make the words of the Declaration of Independence – invoked by Lincoln at Gettysburg in his call for a “new birth of freedom”– into a constitutional mandate. The Declaration’s protection of “life, liberty, and the pursuit of happiness” was foremost in the mind of the Reconstruction framers because in 1865 and 1866, just after the Civil War, Southern state governments passed the Black Codes, laws that violated virtually all of the fundamental rights of Americans in their efforts to keep African Americans in slavery. Many of the fundamental rights the Clause was meant to protect were rights enumerated in the Bill of Rights, but some were not. The post-Civil War framers regularly invoked fundamental rights – such as the right of access to courts, the right to personal security and bodily integrity, and the right to have a family and raise children – that have no textual basis in the Bill of Rights. Thus, as Professor Michael Gerhardt has written, the Privileges or Immunities Clause is the “natural textual home . . . for unenumerated fundamental rights.”

This account should hardly be controversial. Indeed, it reflects the scholarly consensus of the text and history of the Fourteenth Amendment, thanks principally to the writings of Michael Kent Curtis, Akhil Amar, Larry Tribe, John Hart Ely, Jack Balkin, Randy Barnett and others. Doctrinally, however, Slaughterhouse still reigns supreme, despite its indefensible reading of the text and history of the Privileges or Immunities Clause. Slaughterhouse has been demolished everywhere but on the Court. As Akhil Amar has observed, “[v]irtually no serious modern scholar – left, right, and center – thinks that [Slaughterhouse] is a plausible reading of the Amendment.”

Slaughterhouse got the text and history of the Privileges or Immunities Clause dead wrong. It refused to read the Clause to protect the fundamental rights of all Americans. Instead, it read the Clause to protect a narrow set of rights connected to the workings of the federal government or the Union. According to this reading, the Clause protected rights that promoted access to the federal government, such as the right to access federal waterways or come to the seat of government; it did not protect free speech or bodily integrity, rights that were crucial to the freed slaves’ liberty and security in the South. This narrow reading rendered the Clause effectively meaningless. Indeed, the few rights Slaughterhouse recognized as Fourteenth Amendment privileges or immunities were already protected by the Supremacy Clause, which would forbid state action that interfered with the workings of the federal government or the Union. Justice Samuel Miller, who wrote for the Court, never liked the Privileges or Immunities Clause. During ratification, he favored a version that did not include it; he wanted it out of the Fourteenth Amendment. And Slaughterhouse gave him the chance to effectively write the Clause out of the Amendment.

With the Privileges or Immunities Clause out of the Constitution, the Court eventually turned to the Due Process Clause to protect substantive liberty, making that Clause do the work of two. We are facing the consequences today. Substantive due process reads like a contradiction in terms, and requires courts to engage in legal gymnastics to sustain the protection of fundamental substantive liberties. Despite efforts by some of the greatest constitutional lawyers in history, there is no account of substantive due process that commands respect. The result is our modern-day war over the Constitution and the future of the Supreme Court. Conservatives point to liberal devotion to substantive due process as Exhibit A in their case that liberals care little about the text of the Constitution and are content to have judges make things up as they go along. Progressives see the conservative attack on substantive due process as evidence that conservative judges are willing to roll back protection for even the fundamental liberties enshrined in the Bill of Rights.

There is a straightforward way out of this seemingly unwinnable war: restore the text of the Privileges or Immunities to its rightful place. The time could not be better. After all, we live in an age in which text and history are the touchstone for constitutional analysis, yet the text and history of the Privileges or Immunities Clause – meant to be the centerpiece of Section One of the Fourteenth Amendment – have been lost to us for over a century.

President-elect Obama is perfectly positioned to make this restoration a central part of his legal agenda. Not only did Obama win a commanding victory by appealing to the common ground we all share, his own writings capture the essence of the Privileges or Immunities Clause and the Declaration of Independence on which it is based — the principle that all Americans, as their birthright, share a basic set of fundamental rights that no government may abridge. As he put it in Audacity of Hope:

For all our disagreements we would be hard pressed to find a conservative or liberal in America today . . . who doesn’t subscribe to the basic set of individual liberties identified by our Founders and enshrined in our Constitution and common law: the right to speak our minds; the right to worship how and if we wish; the right to peaceably assemble to petition our government; the right to own, buy, and sell property and not have it taken without fair compensation; the right to be free from unreasonable searches and seizures; the right not to be detained by the state without due process; the right to a fair and speedy trial; and the right to make our own determinations, with minimal restriction, regarding family life and the way we raise our children. . . . We consider these rights to be universal, a codification of liberty’s meaning . . . .

There is good reason to think that the Supreme Court will be receptive to this approach. In 1999, in Saenz v. Roe, the Supreme Court invalidated a welfare reform measure for violating the right to travel protected by the Privileges or Immunities Clause, marking the first time in modern constitutional law that the Court treated the Clause as anything other than a dead letter. A seven-Justice majority united behind Justice Stevens’ opinion for the Court. Justice Thomas, the only currently sitting Justice to dissent, agreed that the Clause protected fundamental rights, though he disagreed that California had violated such a right. More important, Justice Thomas signaled a willingness to overrule Slaughterhouse, a suggestion he repeated in 2000 in Troxel v. Granville, a case that affirmed the unwritten fundamental right of parents to direct the upbringing of their children.

So far, we have bracketed the big question — what rights should count as fundamental rights protected by the Clause? Our next two posts will take on that question. On Thursday, we will look at the Second Amendment incorporation question. After Heller, gun rights advocates have argued that the Privileges or Immunities Clause should be the vehicle to incorporate against the states the individual right recognized in Heller. Next Monday, in our final post, we will examine the protection the Clause should give to fundamental rights not enumerated elsewhere in the Constitution.

Originally posted at Balkinization.

This article has been reprinted in the following publications