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The Unenumerated Rights of the Privileges or Immunities Clause

Does the Fourteenth Amendment’s Privileges or Immunities Clause include unenumerated rights, like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article that it does not. But that seems to be contradicted by the textual and historical foundation of the clause.

To understand the meaning of the Privileges or Immunities Clause in the Fourteenth Amendment, requires understanding the meaning of Article IV’s Privileges and Immunities Clause, which came first. We must start with the definition of each word according to the dictionaries of the era.[1] According to the relevant definitions in those dictionaries:

  • “privilege” meant some particular advantage or right not universal
  • “immunity” meant freedom (in a more universal sense).

In other words, a “privilege” refers to the positive rights granted by government to some individuals, while an “immunity” referred to the general or universal rights of freedom for individuals. Together, they meant all rights. This has been demonstrated in many other contemporaneous contexts by Eric Claeys.[2]

While Article IV’s Privileges and Immunities Clause is stated in the affirmative (of what citizens are entitled to) and the Fourteenth Amendment’s Privileges or Immunities Clause is stated in the negative (of what cannot be taken away), what’s significant is that other parts of the text are different.

The Privileges or Immunities Clause speaks of the right of “Citizens of each State” being entitled to the rights “in the several States.” The citizen of one state cannot be denied by another state the same rights that state recognizes for its own citizens.

Meanwhile, the Privileges or Immunities Clause protects the rights “of citizens of the United States.” A state cannot refuse to recognize the rights recognized by the federal government. If there is a right against the federal government’s power, that same protection is applied against the state’s power.

The historical context in which the Privileges or Immunities Clause was written is important as well. Specifically, there is a prior source for those words in the Articles of Confederation:

The free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges or immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively.

Given this, we know at least one of the privileges or immunities referred to concerns “trade and commerce.” That was specifically cited as protected under the prior incarnation of this clause.

This clause was first substantially interpreted by Justice Bushrod Washington’s in Corfield v. Coryell (1823). It states those rights protected by the clause are those that:

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 . . . [including] 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.

To this Washington also added “the benefit of the writ of habeas corpus,” the rights to “maintaining actions of any kinds in the courts,” and to “take, hold and dispose of property, either real or personal.” Many of the rights referred to by Justice Washington are not enumerated in constitutions but are natural rights, such as the right to “enjoyment of life and liberty” in the Declaration of Independence.

Finally, a key context to understanding the Privileges or Immunities Clause is the Civil Rights Act of 1866. Many in Congress feared the law would not hold up in court without a constitutional amendment, so the Fourteenth Amendment was enacted to constitutionalize it. That law protected the right “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” If we are speaking of privileges or immunities that were meant to be protected, this is a good list to start from, but the list also included natural rights not specifically enumerated in the Constitution.

It is true, as Lash states, that Rep. John Bingham and Sen. Jacob Howard, the respective floor managers for the House and Senate, made explicit the intent to apply the first eight amendments of the Constitution against the states. If they had merely stopped there, maybe the clause could be read to only apply to the enumerated rights, but they didn’t. For example, Sen. Howard specifically read on the floor of the Senate when debating this amendment a part of Justice Washington’s opinion in Corfield v. Coryell as some of the rights protected by the proposed clause. Sen. Howard’s speech included a variety of unenumerated natural rights such as the right to “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.”

Sen. Howard then goes on to say it is “to these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.” So clearly the clause must mean the first eight amendments plus something things that “are not and cannot be fully defined in their entire extent and precise nature,” i.e. unenumerated rights. This explanation comes directly from the lawmakers who proposed the amendment. The purpose, according to Sen. Howard, was to “restrain the power of the States and compel them at all times to respect these fundamental guaranties.”

And yet, Lash would protect the enumerated rights against state abridgement, but he would not protect the unenumerated immunities that the authors said were also protected by the clause. If the purpose is to restrain states and compel them to respect these rights, including those that “cannot be fully defined in their entire extent and precise nature,” then Lash’s interpretation cannot be the original meaning.

We know from the text, historical context, and legislative history that the clause included protection for unenumerated rights. From the text, according to contemporaneous dictionaries, we know the word “immunity” meant freedom in a universal sense. From the Articles of Confederation we know the unenumerated rights to trade and commerce were included. From the Civil Rights Act of 1866 we know the unenumerated rights to make and enforce contracts were included. And from the floor statements we know that all the rest of the unenumerated natural rights, including the right to the “enjoyment of life and liberty” in the Declaration of Independence, were specifically identified as within the rights protected by the clause. Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges who claim constitutional protection for rights which are not natural rights. But that is not the Constitution we have.

[1] John Ash, The New and Complete Dictionary of the English Language (1775); Thomas Dyche & William Pardon, A New General English Dictionary (13th eds., 1768), Samuel Johnson, A dictionary of the English language (4th ed., 1773).

[2] Eric R. Claeys, Blackstone’s Commentaries and the Privileges or Immunities of United States Citizens: A Modest Tribute to Professor Siegan, 45 San Diego L. REV. 777, 792 (2008).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 26, 2019 at 10:50:12 am

Another definition of "immunity" (from the 1765 dictionary) is "an exemption from a burdensome duty...."
This strikes me as closer to the (intended) meaning of Immunities in the P&I Clause(s). and would seem to take into account the various "political" bargains / arrangements" reached over time in any political community. I am "immune" from agricultural taxation, if X,Y, and Z; I am immune from impressment into the armed forces if A,B, or C.

Such immunities WILL vary by State. The States must only assure that THOSE specific State based P&I are afforded equally and that sojourners are also eligible should they meet certain state based requirements. Of course, the notion of an Immunity, as in taxation, presupposes an inherent unequal application of the law and of P&I. (See pre Revolutionary France and England re: exemption from taxation). So what did they mean by P&I?

Also, let me interject something here that was (perhaps) inadvertently alluded to in James Rogers essay on Inalienable Rights.
What are they?
What are "alienable rights?

How does the "alienability" of rights factor into P&I?

Can we assume that those rights protected under the first eight amendments to COTUS are "inalienable and may neither be taken away or voluntarily yielded in a just republic? These are both natural rights and Privileges of citizenship in a just republic.

Curiously, voting was neither universal NOR even general at the time of Ratification. One needed to own a freehold of a certain value; women were not enfranchised (except under certain circumstances); nor were slaves.
Is it not fair to assert that voting is NOT an inalienable right? If so, then it is not protected by the guarantees of the first eight amendments.
Rather, it is a Privilege afforded to citizens of the individual states as those states deemed advisable. (Then again, we would not have needed a 15th or a 19th amendment were it an inalienable right).

P&I varies from State to State. Yes, Comity Clause dictates a certain level of fairness of application BUT it does not mandate that all State P&I be equal. Indeed, to enforce such a utopian guarantee / vision would (and has, I would add) destroy State Police Powers and subjugate the States to a centralizing uniformity of rights / privileges, etc.

This is precisely what has occurred over the past century +. Jurists lay claim to a vision of greater clarity and wisdom than that of the founders and of their predecessors and have transformed the States into a vestigial appendage of the Federal bureaucracy. This contradicts, indeed contravenes the Federalism purportedly at the heart of COTUS.

I argue, instead for a resuscitation of STATE level P&I in a (hopeless, I know) attempt to restore both State Police Powers and some vestige of Federalism.

This, of course, presupposes that we appoint jurists who "look to the constitution and not within themselves."

I am not all that sanguine about success.

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gabe
on March 26, 2019 at 10:58:47 am

Oops, forgot this:

Consider the age old case of "The Hat".
Is wearing a hat an alienable or inalienable right? Is hat wearing fundamental to the notion of good governance?
We may list other such "rights". What color shall I paint my house? -Purple and Tangerine, of course as I just love those colors.
NOT: Municipalities may, and clearly do, impose restrictions on such a right.
These are alienable - even if I do not agree that it is alienable. My consent to the overall governance is sufficient to deprive me of my color choice.

It strikes me that our problem in modern days is that we have conflated alienable with inalienable rights. Goodness gracious, Edith, Everything is Sacred.

Is the right not to be offended alienable? apparently, some jurists think not and thus we have "Hate Speech."

There are many dangers to reviving P&I, I admit - but if we were to recognize the age old difference between "natural" / inalienable rights and alienable ones then we may be able to navigate our way through the morass of contemporary ideologies and maintain some level of social comity.

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gabe
on March 26, 2019 at 14:52:57 pm

If we are guaranteed rights and privileges in both the Articles and the Admendments, why am I permitted to carry a concealed firearm in my home state of North Carolina but not in liberal hellholes?
Has this issue ever been adjudicated?
Can anyone cite case law?
Would Obergefell v. Hodges apply?
A serious question. Pease email me suggestions. Thank you.

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Ronald Jones
on March 26, 2019 at 17:01:54 pm

No state should be preventing out of state people from getting concealed carry licenses. I believe that some states have tried to do so, but many of these are getting corrected. For instance, I do not live in DC (one of the most liberal jurisdictions in the country which previously almost banned all privately owned firearms), and yet I do have a DC concealed carry license. You can get a non-resident Utah concealed carry license, and that license is valid for 32 other states (I think). Many of the other states require classes on that state's laws before they will issue a license.

There are a few states that have a "may issue" consealed carry permit system where they almost never issue permits (Hawaii, New York (NYC), Maryland, Massachusetts, New Jersey, Rhode Island). Many of these are being challenged as we speak. There are a few US territories that are officially no-issue areas (American Samoa, Northern Mariana Islands, United States Virgin Islands). I suspect people will focus on these once the state laws are fixed.

The only place that I know of that has an official "no resident" concealed carry policy is California. Carry permits in California are weird, you can get one in a very rural county fairly easily, and it applies throughout the state, but in many urban counties they are all denied. There is ongoing litigation on California's permit system. Most recently, the Supreme Court denied cert in 2017 in Peruta v. California, where the circuit court stated: "there is no Second Amendment right for members of the general public to carry concealed firearms in public." https://www.scotusblog.com/wp-content/uploads/2017/02/16-894-opinion-below-9th-cir.pdf So there are a lot of other problems with the California system that have to get worked out currently.

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Devin Watkins
on March 26, 2019 at 17:04:43 pm

When the Constitution was adopted, the citizens were citizens of the states in which they lived, not citizens of the "United States". We the People are referred to in the Preamble, but not We the Citizens.

When the 14th was ratified, the citizens are referred to as "citizens of the United States and of the State wherein they reside." Notice the verbal legerdemain. The citizens are now citizens of the United States primarily, and of the State where they reside only secondarily.

This served to further consolidate political power in DC and to further subjugate the states to the same restrictions placed BY THE STATES on the federal government - see the language of the 14th forcing the states to honor the P&Is the citizenry enjoyed with the Federal government at the state level.

If one truly wants renewed federalism, repealing the 14th Amendment is a great place to start...

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OH Anarcho-Capitalist
on March 26, 2019 at 17:05:47 pm

Opps, I meant "no non-resident"....

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Devin Watkins
on March 26, 2019 at 20:43:41 pm

"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."

Reminds me of something, maybe John Adams' 1780 Massachusetts Constitution:

"Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. "

Now why would Bushrod think that the 1780 Massachusetts Constitution represented all the founders' views on the federal constitution, unless

https://concurringopinions.com/archives/2017/10/not-king-tuts-tomb-but.html

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Gee Mac
on March 27, 2019 at 09:55:14 am

The implications of the Slaughterhouse cases for us and our posterity follows the wisdom of Justice Miller in articulating the subsequent undermining of Federalism through the narrow confines of 14th Amendment jurisprudence:

'Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow if the proposition of the [p78] plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.'

The wisdom of the Miller opinion was born out by the subsequent events resulting in amendment to the LA Constitution eliminating the harmful monopoly, which preserved the integrity of the Federal order while curing the abuse. It was no accident that the Slaughterhouse cases emerged from LA, a civil law state. FL to this day has no Constitutional provision protecting the right of property. The cure ayn't to 'federalize' it all, but to avoid the totalitarian drift by sustaining proper separations, in which Tribe et al have no interest, but the Constitution mandates.

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gdp
on March 27, 2019 at 15:00:03 pm

Nice link.

I agree that ratified constitutional rights are quite distinct from legislative privileges and immunities for the benefit of state residents or citizens. I'm surprised that the law profs here at L&L seem intent on conflating the two; particularly in the name of originalism.

When I was thinking about P&Is, I, too, was thinking more along the lines of planters bringing their slaves along with them when they visited New York and Boston and coastal trade in the context of landing fees, port fees and slips and moorings for vessels engaged in interstate trade.

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