The Privileges or Immunities Clause and Unenumerated Fundamental Rights

by Doug Kendall, President, and David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

For the last forty years, the Court’s fundamental rights jurisprudence developed under the Due Process Clause has been dogged by persistent claims of illegitimacy. Roe v. Wade has been the target of most of these attacks, but the claims made by Roe’s attackers go well beyond Roe or even abortion rights. Justice Scalia – the most fervent of the challengers – argues that the protection of unwritten fundamental rights is simply not lawyer’s work. “The tools of this job,” he says “are not to be found in the lawyer’s – and hence not the judge’s – workbox.” But one need not reach for tools beyond Scalia’s favorites—text and history—to see that judges properly protect substantive fundamental rights not enumerated elsewhere in the Constitution. On Scalia’s own terms, his objections fall flat when faced with the text and history of the Privileges or Immunities Clause.

The words of the Privileges or Immunities Clause protect the substantive fundamental rights of all Americans. As Senator Jacob Howard said in the Senate debates on the Amendment: “[i]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .” Many others said the same thing, and the Amendment’s opponents never once contradicted them.

The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.

What should be striking about this list of protected rights is how closely it dovetails with the results of the Court’s substantive due process jurisprudence. The rights of heart and home that the Court’s substantive due process cases have vindicated beginning with Meyer v. Nebraska are the very rights that the framers of the Fourteenth Amendment sought to guarantee for the newly freed slaves. The framers recoiled at the treatment of slave families – parents were denied the right to marry and often separated, children were taken from them, and education and free worship were limited or prohibited altogether – and they wrote the Privileges or Immunities Clause to protect these liberties of heart and home.

Thus, the results the Court has reached under substantive due process need not be jettisoned; the Court simply has focused on the wrong clause of the Fourteenth Amendment. That should make the task of developing a new Privileges or Immunities jurisprudence considerably easier. The Court should not (and need not) start from scratch; it can turn to the lessons learned over 135 years of wrestling with the questions about what constitutes protected substantive liberty.

Even the most controversial of the Court’s substantive due process precedents – Roe and Lawrence v. Texas – flow logically from the substantive fundamental rights the framers of the Fourteenth Amendment wrote the Privileges or Immunities Clause to secure. Both cases, it should be mentioned, are about equality as well as substantive liberty, but our focus here is on the Court’s recognition of a protected liberty. As Jack Balkin and others have recognized, Roe protects a right of bodily integrity. A woman’s right to terminate a pregnancy flows out of her right to control her body. The right of bodily integrity has a long heritage as a core aspect of liberty. The framers of the Privileges or Immunities Clause called this right the right of personal security, and there is little doubt that they considered it one of the privileges of national citizenship. Lawrence, too, is rooted in the substantive liberties that the framers of the Privileges or Immunities Clause sought to protect. Lawrence held that the rights of heart and home recognized by the framers and protected since Meyer apply to all Americans, regardless of sexual orientation.

There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. This has been doubly damning. On the Court, Justice Scalia has gotten far too little push back on his reading of the Constitution’s text and history – a reading that views the Reconstruction Amendments as minor tinkering around the edges of our original Constitution. No one on the Court consistently challenges Scalia on how to read the Constitution’s text and history. Off the Court, Republican presidents and politicians argue that we need more Justices like Scalia who are committed to the Constitution’s text and history, while Democratic politicians all too often talk about the results of cases they care about, not the Constitution. For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.

That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights. Progressives have the chance to rejuvenate the Clause in the Fourteenth Amendment that was meant to protect the substantive liberty of all Americans, and to show how the Constitution’s text and history support the Supreme Court’s existing fundamental rights jurisprudence. With a text that explicitly protects the substantive liberties of all Americans finally back in the Constitution, claims that the Court has no textual basis to safeguard substantive constitutional rights would lose their force, and the protection of fundamental constitutional rights would be on secure textual footing.

Originally posted at Balkinization.

This article has been reprinted in the following publications