Bench Memos

Law & the Courts

Kurt Lash on the ‘Privileges or Immunities’ Clause—Part 2

Now that I’ve introduced Kurt Lash’s book The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, let’s take a closer look at his argument that the Privileges or Immunities Clause of the 14th Amendment was not modeled on the Comity Clause (aka Privileges and Immunities Clause) of Article IV, section 2, but was instead “based on the language of antebellum national treaties like the Louisiana Cession Act of 1803 and the 1848 Treaty of Guadalupe Hidalgo.”

Lash presents extensive evidence that the terms privileges and immunities, like the terms rights and advantages, were not terms of art with specific meaning but instead “appear[ed] in a variety of contexts and in reference to a variety of liberties.” Further, while privileges and immunities were often paired as terms, the “paired terms did not refer to a defined set of rights” or “to the natural rights belonging to all people,” but instead “indicated the existence of a unique set of liberties or advantages, the particular content of which differed depending on the context and the group at issue.”

Thus, while the modern ear might think it significant that the phrase “privileges or immunities of citizens of the United States” in the 14th Amendment seems to echo the arcane phrase “Privileges and Immunities of Citizens in the several States” from the Comity Clause, Lash argues that the apparent echo is a false one. The reader’s focus should instead be redirected to how the prepositional phrases in the two clauses differ— to the difference between the rights of national citizenship (“of citizens of the United States”) and the rights of state citizenship (of Citizens in the several States”).

As Lash explains, in pre-Civil War America, the rights of national citizenship (“of citizens of the United States”) had “most often [been] discussed in the context of US treaties of cession”—that is, treaties and implementing laws that governed the treatment of the inhabitants of newly acquired territory. For example, the Louisiana Cession Act of 1803 provided that the inhabitants of the acquired territory would be “admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.” Lash cites contemporaneous statements that treat the italicized phrase as interchangeable with “all the immunities & privileges of citizens of the United States” and “the privileges of citizens of the United States.” Likewise, an 1843 treaty with an Indian tribe declared members of the tribe henceforth to be “citizens of the United States to all intents and purposes,” with “all rights, privileges and immunities of such citizens.”

This and other evidence Lash presents seems amply to support his claim that the Privileges or Immunities Clause draws on these treaty declarations of the rights of national citizenship.

Why does this matter? As Lash explains, the belief of “almost all current Fourteenth Amendment scholars … that the [Privileges or Immunities] Clause was modeled on” the Comity Clause has led them to try to figure out, first, what the meaning of the Comity Clause is and, second (and only through the lens of the first), how the Privileges or Immunities Clause expanded or altered or otherwise affected that meaning. If one instead understands the Privileges or Immunities Clause to protect the rights of national citizenship against the states, the straightforward question that ought to be addressed is what are the rights of national citizenship. (But, as we shall see, the Comity Clause returns to have a small part in Lash’s answer to that question.)

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