“Privileges And/Or Immunities” in State Constitutions Before the Fourteenth Amendment

Abstract

Before the Fourteenth Amendment, Americans had used the words "privileges" and "immunities" in close conjunction with each other in a constitution more than two dozens times. Almost all of these were in state constitutions. State constitutional use of these words therefore can provide clues as to the original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

This Article catalogues and analyzes every time a state constitution used these terms before the framing of the Fourteenth Amendment. It finds that they were overwhelmingly used in three contexts: the rights of corporate bodies, equality protections, and the protection of fundamental liberties. This began in 1776 and continued through the Civil War. The exact words "privileges" or "immunities," or various similar words, did not matter, but were used in various formations to protect a wide variety of interests from governmental intrusion.

When this history is applied to the Fourteenth Amendment we learn that the most important words in the Privileges or Immunities Clause are not "privileges or immunities," but are "of citizens of the United States." But we also learn that those words are broad enough that they suggest the Clause can be interpreted both to protect equality and fundamental liberties.

Keywords: State Constitutions, Privileges or Immunities, Fourteenth Amendment, Blackstone, Colonial, Corporate Bodies, Magna Carta