Note, Congress's Power to Define the Privileges & Immunities of Citizenship

Abstract

Much scholarly and judicial attention has been dedicated to deciphering the Privileges or Immunities Clause of the Fourteenth Amendment, which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Some scholars, echoing antebellum judicial opinions suggest “privileges or immunities” refer to so-called natural rights, such as property ownership. Others suggest “privileges or immunities” refer to protections granted by positive law, either by state law or by the Bill of Rights. Both groups criticize nineteenth-century judicial interpretations, such as the Slaughter-House Cases, for arriving at yet another suspect: benefits that require federal citizenship for their protection, such as the right to use navigable waters, travel, or seek protection overseas. Much less attention has been dedicated to determining the appropriate detective — is it even up to courts to determine what the “privileges or immunities of citizens” are in the first place?

This Note suggests that in the eighteenth and nineteenth centuries, privileges and immunities were widely understood as the products of legislation, to be defined by courts and legislatures. The Privileges or Immunities Clause was understood as empowering Congress, not just courts, to itemize particular rights as subject to federal protection. Just as the Civil Rights Act of 1866 enumerated attributes of citizenship and protected them from state discrimination, the 1866 Congress thought the Fourteenth Amendment would confirm its authority to articulate attributes of citizenship and prevent states from granting or withholding those privileges unequally — even if they were solidly within core state functions. Despite modern Supreme Court restrictions on Congress’s power to enforce the Fourteenth Amendment — most notably in City of Boerne v. Flores — a historically sensitive interpretation of the Privileges or Immunities Clause today would give Congress the power to define certain rights as privileges of federal citizenship that states cannot distribute unequally. Such privileges could include the right of same-sex couples to marry, the right of ex-felons to vote, or the right of children to receive an education.

Keywords: constitutional law, legal history, fourteenth amendment, civil rights act, privileges or immunities clause