Bench Memos

Law & the Courts

Kurt Lash on the ‘Privileges or Immunities’ Clause—Part 1

I’ve been reading law professor Kurt T. Lash’s recent book The Fourteenth Amendment and the Privileges and Immunities of American Citizenship and have found it very interesting, so I figured that I’d do a series of blog posts highlighting its core arguments and offering some observations of my own.

At the outset, let me emphasize that the Privileges or Immunities Clause of the 14th Amendment—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—has been a topic of extensive academic commentary that has reached widely divergent conclusions. I certainly don’t claim to have digested all the commentary, much less to be in a position to purport to arbitrate among the competing positions. I instead intend this series of posts as a working exercise in digging deeper into the controversy.

I’ll start by summarizing some of Lash’s major arguments:

1. Contrary to the views of “almost all current Fourteenth Amendment scholars,” the Privileges or Immunities Clause was not modeled on what Lash calls the “Comity Clause” of Article IV, section 2. (The Comity Clause states: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”). The Privileges or Immunities Clause was instead “based on the language of antebellum national treaties like the Louisiana Cession Act of 1803 and the 1848 Treaty of Guadalupe Hidalgo.”

2. The original meaning of the Privileges or Immunities Clause protects all constitutionally enumerated personal rights, and only those rights, against state interference. The protected rights include “every personal right listed in the Bill of Rights.” They do not include so-called unenumerated rights (i.e., rights not set forth in the Constitution).

3. Among the constitutionally enumerated personal rights that the Privileges or Immunities Clause protects against state interference are the Comity Clause rights under Article IV, section 2. The “Privileges and Immunities of Citizens in the several States” that were protected by the Comity Clause were not unenumerated substantive national rights but were instead “a limited set of state-secured rights that must be equally extended to visiting citizens from other states.”

4. Although the Supreme Court’s 1873 ruling in the Slaughter-House Cases has been widely condemned for supposedly eviscerating the Privileges or Immunities Clause, that criticism is unfounded. Justice Miller’s majority ruling did not hold or imply that the Privileges or Immunities Clause did not bar states from interfering with the rights set forth in the Bill of Rights. It was the Court’s subsequent ruling in United States v. Cruikshank (1873) that failed to “develop[] the textual possibilities of Slaughter-House” and instead “expressly rejected” the proposition that the rights in the Bill of Rights applied against state governments.

Lash’s book, I’ll note, is a 300-page-long work of legal history, replete with historical evidence and argument about such matters as the drafting of the 14th Amendment, its progress through Congress, and the public debate over its ratification. I will, of course, do my best to write accurately (but very selectively) about it, but no one should mistake my posts for a comprehensive account of Lash’s book.

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