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14th Amendment: "privileges and immunities"

Posted by David Hardy · 6 April 2005 07:46 PM

Section one of the 14th Amendment provides:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For me, the meaning is straightforward. Background: the infamous Dred Scott case of 1857 had ruled that free blacks could never be US citizens. The opinion repeated uses "privileges and immunities" to describe citizen's rights. It begins,

"The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution."

The opinion argues that the creators of the United States could not have intended blacks to be citizens, because that would give them the "privileges and immunities" of citizens. And in listng those P&I the opinion goes right down the bill of rights, including the Second Amendment:

More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

Sounds like a slam-dunk. The 14th Amendment had a clear target: Dred Scott. By providing that anyone born or naturalized in the US was a citizen, it eliminated that decision's racial barrier. It also changed in a more complex way the concept of citizenship: national citizenship became primary (Dred Scott had also said that a person could be a citizen of a state without being a citizen of the United States: no more would that be the case). And it forbade States to deny the "privileges and immunities" of US citizenship.

From where else but their target Dred Scott would the drafters of the 14th have taken "privileges and immunities?" Dred Scott says the P&I are the Bill of Rights and other similar liberties.

Of course, the Supreme Court had to have its say...

The Supreme Court was then populated with what we might term Andrew Johnson Republicans, as opposed to the Radical Republicans who had been the main supporters of the 14th. In the Slaughterhouse Cases and the Cruikshank decision, the Supreme Court basically made the 14th Amendment's P&I clause meaningless. The rulings were, I believe, based upon a word-game. The reasoning goes like this:

1. There are privileges and immunities of State, and P&I of Federal, citizenship.

2. P&I of Federal citizenship must be privileges a person did not have before there was a Federal government. Otherwise, what is "Federal" about them?

3. (Pick a right--freedom of speech, association, arms) existed before there was a Federal government, because it is a form of natural right and exists in all free governments. Thus it is not a Federal P&I, and if you want protection of it, talk to your State government.

How many trucks can we drive through that reasoning? Why do Federal and State P&I have to be distinct? What precludes a thing from being a privilege and immunity of Federal citizenship and of state citizenship? If a right is a P&I under all free governments, and the Federal government is a free government, how is it not a Federal P&I? [This is without taking account of the legislative history, so well compiled by Prof. Michael Kent Curtis in his book No State Shall Abridge, showing that the framers of the 14th clearly saw the bill of rights liberties as among the Federal P&I].

Anyway, the P&I clause was knocked off as a means for "incorporating" the Federal bill of rights liberties into the 14th Amendment, and thus making them applicable to the States. Decades later, the Supreme Court began "due process" incorporation, under the separate 14th Amendment provision that no State may deprive a person of due process of law. The Court gradually ruled that one bill of rights freedom and then another were incorporated, were rights that could not be denied without denying "due process of law."

This would mean that "due process" would be denied even if a person was given, well, due "process." And it has no particular logical basis, and no basis in statutory history. Further, as Prof. Curtis points out, the one right which was most apt to be cited as a requirement of "due process" in pre-14th amendment legal texts was ... the right to a grand jury indictment to begin a felony case ... which is, with the right to arms, one of the bill of rights liberties NOT yet held to be within the due process clause.

As the great political commentator Mel Brooks observes, in "History of the World, Part One," "It's nice to be king!"

· 14th Amendment

6 Comments | Leave a comment

Doug Kenline | April 7, 2005 12:13 AM | Reply

David,

Thank you for teaching me about the law.

I would be interested to hear your comments regarding the work of Bob Schulz at GiveMeLiberty.org.

http://www.givemeliberty.org

Please take a moment to review Bob's website and tell me what you think about the work he is doing.

Here is perhaps a letter written by Bob that you could take a quick look at and comment on for me.

Thank you very much.

Doug Kenline | April 7, 2005 12:16 AM | Reply

Also I have been reading your stuff on Waco....very good stuff.....thank you very much......and I like the old west cowboy stories.......I went to school in Phoenix........thanks for blogging.....you are a leader in your field of study..........dk

Dave Hardy | April 7, 2005 11:03 AM | Reply

Looked over the Bob Schultz website ... quick impressions:

1. Lawsuit isn't gonna go very far. The right to petition doesn't necessarily mean there is a right to have someone answer the petition. It just guarantees against cases such as that of the Kentish Petitioners (1713?) where Parliament got upset at a petition and locked up the petitioners on a charge of contempt of Parliament.

2. With regard the IRS codes, I haven't looked at them much, but... Congress is in the business of extracting and spending tax money. It seems to me that IF there were any big loopholes out there, Congress would have changed the law and plugged them long ago.

3. I've heard of a position (didn't read far enough to see if it's his) that essentially this or that law only applies to people born in D.C. or on military bases, since the Constitution only grants Congress "exclusive legislative jurisdiction" in the capital and on certain military installations.

Problem is that exclusive leg. jurisdiction is only one form of jurisdiction. With that, Congress alone has power to legislate, and state laws don't apply. Most federal land is in concurrent jurisdiction, where both sets of laws apply. And even off federal land, Congress has the general powers set out in the constitution, to tax and spend, control interstate commerce, etc.

Once had to do a long pain-in-the-neck opinion on the matter at Interior. Interior HATED exclusive jurisdiction. If we got land that used to be a military base and was exclusive, we'd ask the State to repeal the grant of exclusive. Example of why: a wildlife refuge manager out near Yuma, AZ, found a corpse. It was exclusive jurisdiction land, so he had to arrange and pay for a private autopsy, then call FBI (about 200 miles away) to investigate. If it's been concurrent, all he'd have had to do was call the Yuma County Sheriff's office.

Doug Kenline | April 7, 2005 11:18 AM | Reply

Thank you very much Dave. I'll continue to read over your answer and give it some thought. Thanks for blogging.

Mark Robinson | April 7, 2005 7:06 PM | Reply

Nothing the Supreme Court does is truly in social vacuum. In the late 1860s-70s the north was in a bitter and deadly occupation of the former confederate states. The 14th amendment was a ratified by some very "interesting" methods and raised the already high temperature to nothing the Supreme Court does is truly in social vacuum. In the late 1860s-70s the north was in a bitter and deadly occupation of the former confederate states. The 14th amendment was a ratified by some very "interesting" methods and raised the already high temperature to near a roaring boil. The north wanted out in the worst way.

The court at the time was already biased against individual rights ( most wartime courts are ) and could see the 14th as a obstruction to ending the occupation. In what I feel was partial political and social pressure with a not so small backroom "get together" the idea that some in the south could be pacified by a weaking of the 14th would not be that far out of line. Considering the logic used in Cruikshank and SlaughterHouses you could drive a train through even in 1870.

I really think it would be funny if it was not so sad that the ACLU and the NAACP will use Cruikshank and SlaughterHouses when it comes to 2nd amendment arguments in relation to incorporation when they brought you Jim Crow and the modern theory of states rights.

Dan Goodman | January 4, 2009 11:52 PM | Reply

I wish to point out that the Supreme Court decided in the Slaughterhouse Cases that because of the Fourteenth Amendment there were now two seperate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment; and a citizen of the several States, under Article IV, Section 2, Clause 1. (note 1) The last was later reaffirmed in Cole v. Cunningham:

“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

So you have a citizen of the United States, who can become also a citizen of a state, by residing therein. And you have a citizen of a state who becomes under Article IV, Section 2, Clause 1 of the Constitution, a citizen of the several States. Therefore, under the Constitution of the United States, since the adoption of the Fourteenth Amendment, there are two citizens; a citizen of the several States and a citizen of the United States. And in each State of the Union, there are two types of state citizens; a citizen of the several States and a citizen of the United States.

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Notes:

1. “We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section (first section, section clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” Slaughterhouse Cases page 74.

And, “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF (emphasis mine) the several States.’ ” Slaughterhouse Cases page 75.

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