Dionisopoulos, P. Allan
M.A. (Master of Arts)
Department of Political Science
United States. Constitution. 14th Amendment; Constitutional amendments--United States
This paper is an examination of the privileges and immunities clause of the first section of the Fourteenth Amendment to the Constitution of the United States. The primary purposes of this paper are to determine the intentions of the framers of this clause and to compare those intentions with the subsequent judicial elucidation of the clause. The method of investigation employed here is the one suggested by the United States Supreme Court for the proper construction of constitutional provisions. The guiding principle of this procedure is that the construction must give effect to the intentions of the framers. When the words of a given provision do not themselves clearly spell out those intentions, the court looks to certain extrinsic sources for information on which to base that determination. The court examines, in particular, the legal and historical background of the clause in question, the known purposes of the framers, and the congressional debates on the measure. This paper follows that procedure. The first uses of the terms "privileges" and "immunities" in American constitutional history occurred in the colonial charters. There, and in subsequent colonial acts, the words signified the broad spectrum of individual liberties which the colonists regarded as the "rights of Englishmen." These words were used in a similarly broad sense in the first state constitutions. The basic rights to which they referred were later asserted against the national government in the first eight amendments (or Bill of Rights) to the Constitution of the United States. The terms "privileges” and "immunities" were used in a second and narrower sense in article 4 of the Articles of Confederation and in Article IV, Section 2 (the comity clause) of the Constitution. In these two instances the terms referred only to the rights of state citizenship. The two clauses were intended merely to forbid the states to discriminate in favor of their own citizens against the citizens of other states. These two lines of definition represented separate and distinct developments. In the period between the adoption of the Constitution and the framing of the Fourteenth Amendment, the federal courts clearly asserted the principle that the basic rights of individuals were derived through state citizenship. The guarantees of the Bill of Rights were held to apply to the national government alone and could not, therefore, be enforced against state actions. The privileges and immunities mentioned in the comity clause, although described as "fundamental” by the courts, remained only rights of state citizenship, alterable at the will of the individual states. The applicability of such privileges and immunities was further narrowed shortly before the Civil War when the Supreme Court ruled that only white citizens were entitled to claim such rights in the federal courts. A contrasting body of constitutional interpretation was developed in the same period by the leaders of the antislavery movement. The abolitionists used the comity clause as a basis for the development of their doctrine of a paramount national citizenship imbued with its own broadly-defined privileges and immunities. These rights, the abolitionists claimed, were enumerated principally in the Bill of Rights and belonged to all citizens of the United States, regardless of race, by virtue of their national citizenship. Such rights were beyond the power of the states to abridge. John A. Bingham, the author of the first section of the Fourteenth Amendment (except for the first sentence), and many of his Republican colleagues in the Thirty-ninth Congress espoused the abolitionist position regarding national citizenship. Through the privileges and immunities clause of the proposed Fourteenth Amendment these men sought to secure to all citizens the rights enumerated in the Constitution and Bill of Rights. Both supporters and opponents of the Amendment understood that the chief purpose of the clause was to protect these basic individual rights from state encroachment. The available evidence from the state ratification proceedings indicates that the state legislators also understood this purpose. The earliest and most decisive Supreme Court test of the new privileges and immunities clause came in the Slaughter-house Cases in 1873. The Supreme Court held in that decision that the clause protected only those privileges and immunities pertaining to national citizenship. These rights, unlike those of state citizenship, were held to be relatively few in number and narrow in scope. This construction clearly ignored both the explicit intentions of the framers and the court's own standards for such interpretation. Rigidly adhering to its Slaughter-House opinion, the court held in subsequent cases that none of the provisions of the first eight amendments had been made applicable to the states (or "incorporated") through the privileges and immunities clause. However, a more recent process of "incorporation" through the due process clause of the Fourteenth Amendment has finally made most of the guarantees of the Rill of Rights enforceable against the states. Thus the goal which the framers of the Fourteenth Amendment sought through the privileges and immunities clause has largely been realized, although the clause itself never became the vehicle for this achievement.
Bishop, James Branson, "The privileges and immunities clause of the fourteenth amendment of the Constitution of the United States" (1968). Graduate Research Theses & Dissertations. 6112.
vi, 136 pages
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