The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art
Kurt T. Lash
University of Illinois College of Law
August 18, 2009
Georgetown Law Journal, Vol. 98, p. 1242, 2010
Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.
A close analysis of antebellum law, however, suggests that Justice Miller’s approach was faithful to long-standing legal doctrines regarding the meaning of Article IV and a distinct category of rights known as the “privileges and immunities of citizens of the United States.” As of Reconstruction, Article IV’s protection of “privileges and immunities of citizens in the several states” was broadly understood as providing sojourning citizens equal access to a limited set of state-conferred rights. The “privileges and immunities of citizens of the United States,” on the other hand, was an accepted term of art which referred to those rights conferred upon United States citizens by the Constitution itself. Even as the country came apart over the issue of slavery, slave-state advocates and the proponents of abolition both expressly maintained the distinction between Article IV and national privileges and immunities. In the Thirty-Ninth Congress, John Bingham, the drafter of Section One, insisted that this distinction informed the meaning of the final draft of the Fourteenth Amendment. According to Bingham, the Privileges or Immunities Clause protected “other and different privileges and immunities” than those protected by Article IV. Understanding the roots of this distinction in antebellum law helps illuminate Bingham’s explanation of Section One, and the likely reception of the Privileges or Immunities Clause by the public at large.
This is the first of a three-part investigation of the origins of the Privileges or Immunities Clause. This first part explores antebellum law in order to determine the historical understanding of words, phrases, and case law at the time of Reconstruction. Part II, "John Bingham and the Second Draft of the Fourteenth Amendment" (also available on SSRN) considers how the historical understanding of "privileges and immunities" affected the debates on the first and second draft of the Fourteenth Amendment. It turns out that a critical number of Republicans in the Thirty-Ninth Congress maintained the antebellum distinction between Article IV privileges and immunities and federal privileges and immunities-a fact which ultimately led John Bingham to withdraw his original Article IV-based draft of the Fourteenth Amendment and replace it with a second and final draft which protected the privileges or immunities of citizens of the United States.
Number of Pages in PDF File: 63
Date posted: August 19, 2009 ; Last revised: September 30, 2012