Privileges or Immunities Clause
The Privileges or Immunities Clause refers to provisions in the U.S. Constitution that protect certain rights of citizens from state infringement. Specifically, it is found in Article IV, Section 2, and is reinforced by the Fourteenth Amendment, which prohibits states from abridging the privileges or immunities of U.S. citizens. Historically, this clause was intended to ensure that citizens from one state are treated equally in another state, promoting interstate comity. However, the Supreme Court has often limited the scope of this clause, primarily using it to address issues related to commerce and state discrimination rather than protecting individual rights broadly. Notable cases, such as *Slaughterhouse Cases* and *Doe v. Bolton*, demonstrate the evolving judicial interpretation of these provisions, often influenced more by political contexts than by a commitment to individual rights. Despite some revivals of the clause's relevance, particularly in the late 20th century, the Supreme Court has primarily relied on other constitutional provisions to safeguard individual liberties. This ongoing dialogue reflects the balance between federal and state powers in the U.S. legal system and the complexities of ensuring equal treatment for all citizens.
Privileges or Immunities Clause
Description: Special rights and exemptions provided by law, which are protected from state government abridgment by Article IV of the US Constitution and the Fourteenth Amendment.
Relevant Amendments: First through Eighth
Significance: The Court made only limited use of these clausesits reluctance to protect rights with them is a reflection more of the Court’s political concerns than of the provisions’ substance.
The Supreme Court has interpreted the privileges or immunities clause in various waysaccording to what it considered the nation’s exigent political and economic needs. Opinions addressing these provisions illustrated the political nature of the Court’s decision making. Both clauses arose from intergovernmental concerns within the federal system and required state governments to treat citizens with basic equalitylitigation about them has also examined the federal courts’ role in guaranteeing “fundamental rights.”
Article IV, Section 2 of the US Constitution provides that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the other states.” In The Federalist (1788) No. 80, Alexander Hamilton maintained this clause was “the basis of the Union.” Along with the full faith and credit clause and fugitive felons and fugitive slaves provisions, this clause was designed to ensure interstate comity. Its obvious purpose was to protect citizens of one state from being treated as aliens while in another state. Evidently, the clause did not literally mean what it saidGeorgia has the right to conduct trade in Maryland but not to vote in Maryland’s elections. The earliest standard to distinguish between these activities was propounded by Justice Bushrod Washington. Sitting on circuit court, he held this clause protected out-of-state citizens’ fundamental rightsthose that “belong, of right, to citizens of all free governments” in Corfield v. Coryell (1823).
Substantial Reason Test
The Court never fully embraced Washington’s interpretation. It rarely used the clause to protect fundamental rights, except to ensure some measure of equal treatment by state governments for citizens of other states. Its concern was primarily with the political fallout of interstate relations rather than the rights of individual citizens. The nineteenth-century court limited its use of the clause to protect the professional, property, and business rights of out-of-state citizens and provide them access to state courts. The court’s major twentieth-century development of the Article IV clause held that lawful state discrimination against citizens of other states must exhibit a “substantial reason for discrimination” beyond their out-of-state citizenship in Toomer v. Witsell (1948). The most notable use of the Toomer standard was Doe v. Bolton (1973), in which the court struck down a statute that allowed only state residents to obtain abortions in Georgia.
After it adopted the Toomer “substantial reason” test, the court returned to the fundamental rights standard in one significant case. It upheld a Montana law that required a higher fee for the hunting licenses of nonresidents than for those for residents. It ruled that equal access to hunting licenses for nonresidents was “not basic to the maintenance of well-being of the Union” in Baldwin v. Fish and Game Commission (1978). In all cases, the court applied the Article IV clause only to unequal treatment of out-of-state citizensin most of them, it also based its holdings on the commerce clause.
The Fourteenth Amendment
The Fourteenth Amendment includes the injunction that “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” This clause’s primary authorJohn Binghamcontended the privileges or immunities referred to “are chiefly defined in the first eight amendments to the Constitution”which he maintained “were never limitations upon the power of the States, until made so by the Fourteenth Amendment.”
The Slaughterhouse Cases (1873) presented the first significant litigation concerning the meaning of the Fourteenth Amendment. In that decision, the court rendered the privileges or immunities clause ineffective as the basis for federal protection of individual rights. The appellants claimed their right to labor was violated by a Louisiana law that required New Orleans butchers to use a central slaughterhouse. Writing for a 5–4 majority, Justice Samuel F. Miller ruled the privileges or immunities clause did not protect a right to labor. He maintained the clause protected only the privileges or immunities granted by the United States and regulation of the right to labor fell within the authority of the states.
The next day, the court applied Slaughterhouse’s narrow interpretation to hold the clause did not prevent Illinois from denying women licenses to practice law in Bradwell v. Illinois (1873)thus confirming and perpetuating the court's view of the clause ever since. The political and cultural basis of the decision was indicated by Justice Joseph P. Bradley’s concurrence, “Women are to fulfill the noble and benign offices of wife and mother.”his “is the law of the Creator.” A century later, when the court turned to the Fourteenth Amendment to protect women from discriminatory state laws, it relied on the equal protection clause.
In both Slaughterhouse and Bradwell, the court responded to political considerations. It recognized that all citizens’ fundamental rights should be secured against infringement. It was also committed to the federal system and determined that the states should retain primary responsibility for governing and protecting the rights of the people. To rule otherwisethe Slaughterhouse majority arguedwould make “this court a perpetual censor upon all legislation of the states.”
Justice Stephen J. Field decried Slaughterhouse for reducing the privileges or immunities clause to “a vain and idle enactment, which accomplished nothing.” His dissent contained the seeds of the doctrines of freedom of contract and substantive due process that dominated the court’s economic rulings for half a century. Because Slaughterhouse emasculated the privileges or immunities clause, when the Court espoused these doctrines, it based them on the Fourteenth Amendment’s due process clause. To this day, when the court chooses to protect individual rights, it turns to the due process, equal protection, or commerce clauses rather than the weakened privileges or immunities clause.
The Supreme Court resurrected the privileges or immunities clause in Saenz v. Roe in 1999it struck down California’s durational residency requirement for welfare benefits. Justice John Paul Stevens declared newly arrived residents of a state must be provided the same privileges or immunities as the state’s citizens. The Saenz holding raised the possibility that in the future, the court might rely on the privileges or immunities clause, rather than substantive due process.
For the most part, the reliance upon substantive due process continued in the ensuing years, as the privileges or immunities clause was not further assessed. However, in the case of Timbs v. Indiana (2019)the Supreme Court ruling used the due process clause of the Fourteenth Amendment to come to the conclusion that the Eighth Amendment's excessive fines clause is an incorporated protection that applies to states as well as the federal governmentJustices Clarence Thomas and Neil Gorsuch stated in separate concurrences that the privileges or immunities clause would have been more appropriate.
Presumptive Presidential Immunity
In July 2024, the US Supreme Court decided on a matter dealing with immunity and privileges on a different scope than previous cases. By a vote of 6 to 3, the Supreme Court ruled a US President has absolute immunity from criminal prosecution for any act they commited while executing the functions of the office. The Court did rule this immunity could not apply to unofficial conduct or private acts. The Supreme Court's ruling immediately altered an on-going prosecution of former President Donald Trump on charges that he conspired to illegally overturn his electoral defeat in Novemeber 2020 presidential elections. Prior to the Supreme Court decision, lawyers for former President Trump argued Trump could not be prosecuted for any alleged wrongdoing since a US president held such immunity. Trump’s lawyers asserted that if the court allowed the possibility for prosecution would make future presidents unable to discharge their official responsibilities out of fear of possible future retributive legal actions against them.
In an immediate test of how this new ruling would be appliedin August 2024Special Prosecutor Jack Smith re-filed an changed indictment which argued that Trump did not act in an official capacity in his attempts to overturn the 2020 presidential election. Smith also referenced Trump as "candidate" rather than as "President," a term he had appeared as in the original indictment. Smith also removed allegations from the amended indictment of Trump's alleged coercion on the Justice Department to overturn the 2020 electionas the former president’s interaction with the Justice Department could be construed as an official act.
Bibliography
Bomboy, Scott. "Supreme Court Confirms Excessive Fines Clause Applies to States." Constitution Daily, 20 Feb. 2019, constitutioncenter.org/blog/supreme-court-confirms-excessive-fines-clause-applies-to-states. Accessed 21 May 2019.
Feuer, Alan, and Charlie Savage. "Special Counsel Revises Trump Election Indictment to Address Immunity Ruling." New York Times, 27 Aug. 2024, www.nytimes.com/2024/08/27/us/politics/trump-indictment-election-jan-6.html. Accessed 30 Aug. 2024.
Hurley, Lawrence. "Supreme Court Gives Win to Trump, Ruling He Has Immunity for Some Acts in Election Interference Indictment." NBC News, 1 July 2024, www.nbcnews.com/politics/supreme-court/supreme-court-rules-trump-may-immunity-federal-election-inter-rcna149135. Accessed 30 Aug. 2024.
"NYU Law Forum Critiques the Supreme Court’s Ruling on Presidential Immunity." NYU Law, 30 May 2024, www.law.nyu.edu/news/forum-supreme-court-presidential-immunity. Accessed 30 Aug. 2024.
Olsen, Trisha.“The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment.” Arkansas Law Review, vol. 48, 1995, pp. 347–438.
Rosen, Jeffery. “Translating the Privileges or Immunities Clause.” George Washington Law Review, vol. 66, 1998, pp. 1241–68.
Scarborough, Jane L. “What If the Butcher in the Slaughterhouse Cases Had Won?: An Exercise in ‘Counterfactual’ Doctrine.” Maine Law Review, vol. 50. 1998, pp. 211–24.
Simson, Gary J. “Discrimination Against Nonresidents and the Privileges and Immunities Clause of Article IV.” University of Pennsylvania Law Review, vol. 128, 1979, pp. 379–401.