Privileges or Immunities

Abstract

INTRODUCTION What was meant by Fourteenth Amendment's Privileges or Immunities Clause?1 Did it incorporate U.S. Bill of Rights against states or did it do something else? In retrospect, Clause has seemed to have poignancy of a path not taken-a trail abandoned in Slaughter- House Cases and later lamented by academics, litigants, and even some judges.2 Although wistful thoughts about Privileges or Immunities Clause may seem to lend legitimacy to incorporation, Clause actually led in another direction. Long-forgotten evidence clearly shows that Clause was an attempt to resolve a national dispute about Comity Clause rights of free blacks.3 In this context, phrase the privileges or immunities of of United was a label for Comity Clause rights, and Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights. The incorporation thesis runs into problems already on face of Privileges or Immunities Clause. The Bill of Rights guarantees rights generally, without distinguishing from other persons. In contrast, Fourteenth Amendment sharply juxtaposes privileges or immunities of citizens with due process and equal protection rights owed to person. It therefore is not easy to understand how Amendment's guarantee of privileges or immunities of can be understood to refer to rights of persons protected by Bill of Rights.4 What then was Privileges or Immunities Clause doing when it guaranteed that [n]o State shall make or enforce any law which shall abridge privileges or immunities of of United States? The answer lies in nineteenth-century dispute about whether free blacks had benefit of Comity Clause. This clause assured that [t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in several States.5 Many states, however, especially in South, denied Comity Clause rights to free blacks-the justification being that only of United States were entitled to benefit of Comity Clause and that free blacks were not U.S. citizens. Opponents of slavery responded in kind, arguing that free blacks were U.S. and so were entitled to privileges and immunities secured by Comity Clause. Thus, each side interpreted this clause to exclude or include free blacks on basis of whether or not they were federal citizens. In these circumstances, opponents of slavery defended Comity Clause rights of free blacks in terms of the privileges and immunities of of United States. After Civil War, Fourteenth Amendment echoed this antislavery interpretation of Comity Clause and secured it in Constitution.6 The phrase employed by Fourteenth Amendment's Privileges or Immunities Clause thus has a history-indeed, a genealogy-that clearly reveals its historical meaning. It will be seen that allusions to privileges and immunities could occur in different contexts with different meanings.7 But only one combination of context, text, and meaning led directly to Fourteenth Amendment, thereby revealing a historical genealogy that leaves meaning of Privileges or Immunities Clause unmistakable. Although this history has been largely forgotten, it was once a central element in struggle against slavery and a foundation of Fourteenth Amendment. And it had nothing to do with incorporation. 1. The Missing Evidence.-The incorporation thesis has seemed plausible because scholars have tended to focus either on too narrow a slice of evidence (which excludes what is essential) or on too broad a range of evidence (which conflates different contexts). In fact, although relevant evidence comes from a wide array of sources, it arose in a specific context, in which the privileges and immunities of of United had a very specific meaning. …