Understanding the Privileges and Immunities Clause

The 14th amendment is one of the most, if not the most, misunderstood and misconstrued amendments to the Constitution.  Derek Howell from the Institute on the Constitution is this week’s guest on The Forgotten Men program.  Derek is writing a book exclusively on the 14th amendment.

As a primer to our discussion this week it is important to understand the Privileges and Immunities Clause.  The clause is also referred to as the Comity clause.  The privileges and immunities clause appears in the Constitution under Article IV Section 2 and says:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

One of the more common misconceptions about the clause is that it included natural rights.  The founders considered natural rights to be very different from privileges and immunities.  They were not one in the same.  Natural rights, to the extent their exercise did not harm others, were inalienable.  Natural rights were also considered negative rights.  But local law determined who enjoyed which privileges and immunities.  After independence, natural rights and liberties were inherent in one’s humanity, but privileges and immunities were still bestowed.  Privileges and immunities were considered positive law as it required an act of government to bestow an entitlement on a person.

When interpreting the Constitution the order of progression starts with the original understanding; which is the ratifier’s understanding (the states).  Next, if there is insufficient evidence to recover that understanding, then you move to original public meaning.  There is substantial evidence available to recover the original public meaning of the words privileges and immunities.

In 18th century jurisprudence the word “privilege” and the word “immunity” were commonplace, elucidated by a large body of Anglo-American case law and commentary.  According to Jacobs New Law Dictionary of 1762 a privilege is:

  • A benefit or advantage
  • Conferred by positive law
  • On a person or place
  • Contrary to what the rule would be in absence of the privilege

Likewise immunity was understood to mean to be free from certain burdens (i.e. immunity from tolls).  Because immunity was a special benefit, otherwise contrary to law, given to a person or place by special grant, it was a privilege.

In the period from 1776 to 1789 Americans had in mind a certain understanding of privileges and immunities which fell principally into six general categories.

1)   Powers or exemptions for governments or government officials

2)   Advantages bestowed on aristocrats, nobles, and similar groups

3)   Benefits granted through the acts and customs of international law

4)   The franchise of suffrage and the resulting political representation

5)   Preferences bestowed by law on some, but not all, persons and entities pursuant to government regulation of internal affairs

6)   Benefits bestowed by positive law on all citizens as an incident of citizenship.

Both the Articles of Confederation and the Constitution protected only the last category.

The key here is incident of citizenship.  During the confederation the states determined who qualified as citizen and the scope of any privileges attending naturalization.  During the convention some control was given to Congress since Congress would be able to qualify persons as citizens under federal naturalization laws.  During ratification debates the issue was raised that combing naturalization and the Comity Clause would give Congress power to absorb all those powers of the state.  The constitution splits these powers and each state retained the power to decide what privileges and immunities attached to citizenship within their jurisdiction.

So, the clause requires that each state protect the same benefit for visitors.  So, a Marylander goes to Virginia, they are extended the same privileges and immunities as a Virginia citizen.

Now, there were some privileges incident to citizenship that were so important to personal freedom that some people informally called them rights.  For instance, the writ of habeus corpus which was recognized everywhere in America and denominated a “privilege” at the Federal Convention, in state ratifying conventions, and by the Constitution.

This was typical of the classification of other standard judicial procedures such as trials by jury, jury challenges, appeal processes, etc.

Another aspect is the difference between the Articles of Confederation and the Constitution.  The Articles had two comity clauses and used the term “free inhabitants”.  Whereas, the Constitution has one comity clause and uses the term citizen.  The reasons are:

1)   The Articles dealt with privileges and immunities in one clause (which was about government power over a state’s internal affairs) and free trade in another; since the United States in Congress Assembled had no authority over trade (what they called inter-jurisdictional commerce).

2)   Under the Constitution, Congress was granted the power to regulate commerce thus only one comity clause.

3)   Slaveholding states insisted the term citizen be used.  This was to ensure that slaves that escaped to other states did not receive certain rights of citizenship.

This is why the term “citizens of the United States” has a very definitive and limited meaning.  It is extremely important to know this meaning before tackling the 14th amendment.

Under the original meaning if a state bestowed a benefit on its citizens as an incident of citizenship, then that state was required to extend the same benefits to American citizens visiting from other states.  Voting was not considered a privilege incident to citizenship therefore citizens of Maryland couldn’t go to Virginia and vote in their elections.  The clause protected citizens, including women and minors, but it would NOT protect aliens or slaves.

Privileges and Immunities, as well as the rest of Article IV, was meant to address some of the technical points of federalism.  It was not concerned with broad issues of freedom.

In summary we can ascertain these known facts about the privileges and immunities clause:

1)   Natural rights are not privileges and immunities.  Natural rights are inalienable and are referred to as negative rights.

2)   Privileges and immunities were positive acts of law to bestow a privilege upon or grant immunity from a particular act.

3)   Privileges and immunities are incidents of citizenship.  The clause extended the privileges and immunities in one state to citizens from other states.

4)   Some privileges and immunities were so important they were called out separately in the Constitution.

5)   The privileges and immunities clause did NOT apply to aliens, foreigners, or slaves as none of these groups of people were citizens of a state.

6)  Privileges and immunities varied from state to state.  A privilege bestowed in one state may not be a privilege at all in another state.  Likewise, a certain immunity bestowed upon a person or place in one state may not be bestowed in another state.

7)   Privileges and immunities did not include elective suffrage.  That is, the right to vote was not a privilege and immunity granted to all citizens.  Each state determined the laws and qualifications to vote.  Women and children who were citizens were not allowed to vote.  Some states had property requirements.  Even today, few would believe a citizen from the state of Virginia could legally vote in elections held in Ohio.

I would like to give full attribution to Rob Natelson as I relied upon and used much of his work from his book titled “The Original Constitution”.

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