Answering Justice Thomas in Saenz: granting the Privileges or Immunities Clause full citizenship within the Fourteenth Amendment.

• Author: Shaffer, Derek

Justice Thomas's dissent from the Supreme Court's decision in Saenz v. Roe,(2) handed down in May of this past year, signals a possible reawakening of the long comatose Privileges or Immunities Clause of the Fourteenth Amendment ("the Clause"). In Saenz, Justice Stevens's majority opinion called upon the Privileges or Immunities Clause of the Fourteenth Amendment(3) as a substantive guarantee of personal liberties, specifically "the right of [a] newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State."(4) This decision marked the first time in over sixty years that the Court relied on the Clause(5) and recapitulated the limited conception of it famously espoused over a century ago in the Slaughter-House Cases.(6) The decision may signal a new found willingness to resuscitate a clause that has effectively been read out of the Fourteenth Amendment and to put it to work as a living, breathing part of our Constitution. This Note accepts Justice Thomas's invitation: It provides an account of the history of the Privileges or Immunities Clause of the Fourteenth Amendment, the intent of its framers, and its proper place in modern constitutional law.

But let's begin with the present before getting to the beginning. This Note represents but one of many stabs at arguing that the Clause deserves an expanded role in constitutional law.(7) In fact, an opponent of these arguments commented last year that, "`[e]veryone,' we're told, now agrees that the Supreme Court took a wrong turn in the Slaughter-House Cases in 1873, when a narrow majority read the [Clause] out of the Constitution by construing it into irrelevancy."(8) If those of us lobbying on behalf of the Clause can be accused of beating a dead horse, so be it--an already dead Clause is impervious to worse harm, and the sound and attention we bestow may yet achieve a resurrection.

In Saenz, for the first time in over five decades, the Court has selected the Clause over its far more renowned contemporaries, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as a repository for personal liberties. There is at last a credible prospect that the Court may venture beyond the superfluous interpretation of the Clause it rendered in Slaughter-House. The need is thus all the more real to integrate the commentary and controversy surrounding the Clause and offer a principled conception of its history and meaning.

Part I of this Note traces the limited interpretation of the Clause that the Court adopted in Slaughter-House and that it recently maintained in Saenz. It suggests the Court may be poised to, and should, move beyond its currently cramped conception that the Clause protects only those rights of citizenship inherent in the federal structure and independently established under the Constitution. Part II then surveys and distills the largely chaotic history of the Clause's framing and ratification. It concludes that the Clause was intended to secure against state violation those fundamental rights essentially tautologically accepted as existing throughout the nation.

Part III specifies the role the Clause should play in our overall Fourteenth Amendment jurisprudence, meeting and addressing possible objections along the way. It offers a formulation whereby the Clause enshrines within the Constitution those rights that (1) are fundamental or "implicit in the concept of ordered liberty"; (2) are evinced by a clear consensus among the states; and (3) if established, do not unduly invade the realm of economic policy and allocations. According to this conception, the Clause is a constitutional device for preventing rogue states from backsliding at the expense of fundamental rights that have achieved almost universal recognition throughout the United States.

Finally, Part IV clarifies the contours of this formulation by exploring test cases that implicate the right to vote, specific aspects of the right to privacy, and a possible right to public education. It concludes that (1) a resident's right to vote in a state gubernatorial election constitutes a quintessential privilege/immunity of U.S. citizenship; (2) existing constitutional protections for both a right to contraception and a right to peruse the materials and ideas one pleases in one's own home can be justified under the Clause; (3) the right to engage privately in homosexual relations without fear of prosecution currently has not achieved the status of a privilege/immunity; and (4) the right to a most basic level, and only a most basic level, of public education should be understood as a privilege/immunity.

1. OUR CONSTITUTION SAYS THE SAME THING TWICE: HOW THE CLAUSE'S TEXT BECAME EMPTY SYLLABLES

   1. Slaughter-House Strikes

      The basic holding of Slaughter-House has been exhaustively discussed and criticized for effectively reading the Privileges or Immunities Clause of the Fourteenth Amendment into utter obscurity.(9) The cases arose soon after the Clause's framing in 1866 and final ratification in 1868.(10) The plaintiffs were slaughterhouse operators who challenged legislation that purported to protect the health and safety of the public at large by restricting slaughterhouse operations within the city of New Orleans.(11) The plaintiffs argued that the Fourteenth Amendment's protection of privileges and immunities embraced economic property rights and that the legislation unconstitutionally encroached on their rights to continue slaughterhouse operations.(12)

      The Court's opinion summarily rejected any suggestion that the Privileges or Immunities Clause included "those rights which are fundamental."(13) Instead, Justice Miller's majority opinion perceived in the Fourteenth Amendment "a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning [its] true meaning."(14) That purpose was simply the abolition of slavery and "the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him."(15) The Court stopped short of saying "that no one else but the negro can share in this protection," for "if other rights are assailed by the states which properly and necessarily fall within the protections of the [Fourteenth Amendment], that protection will apply, though the party interested may not be of African descent."(16) Still, the Court determined that the eradication of slavery was the "pervading spirit" of all of Section 1 of the Fourteenth Amendment's provisions and that slavery was "the evil which they were designed to remedy."(17)

      The Court then decided that the inclusion in Section 1 of the Fourteenth Amendment of a definition of U.S. citizenship, as distinct from state citizenship, signaled that the Amendment spoke "only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States."(18) Those privileges and immunities "belonging to [a] citizen of the State as such ... must rest for their security and protection where they ha[d] heretofore rested; for they are not embraced by [the Privileges or Immunities Clause]."(19) The Court bristled at the suggestion that the Clause was meant "to bring within the power of Congress the entire domain of civil rights [that had previously] belong[ed] exclusively to the States."(20)

      The Court instead concluded, over a strong dissent from Justice Field,(21) that the rights the Clause bestowed were exactly "the same" as those of "the corresponding [Privileges and Immunities Clause(22)] found in section two of the fourth article [of the Constitution]."(23) These protections of Article IV, Section 2 secure against state encroachment only those rights of citizenship that spring inexorably from the federal powers and structure established under the Constitution.(24) Examples of such rights include the right to exercise federal rights to assemble and petition for redress of grievances and to apply for a writ of habeas corpus; to visit the seat of the federal government and participate in its offices; to receive federal protection while abroad; and, as reiterated in Saenz, to become a resident of any state through bona fide residence and enjoy the same rights as those enjoyed by any other citizen of that state.(25)

      Of course, if the Clause

      only refers, as held by the [Slaughter-House] majority ..., to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.(26) The Slaughter-House decision nonetheless construed the protections of the newly passed Clause as coextensive with those already secured under the Constitution.(27) and core language of the Fourteenth Amendment was rendered mere surplusage and banished into irrelevancy.

   2. An Attack of Constitutional Conscience: The Clause Breathes a Gasp

      The Clause's pulse flickered briefly between 1935 and 1940. In Colgate v. Harvey,(28) the Court determined that a state tax targeting income from outside the state while exempting income from inside the state violated the Clause.(29) That decision was overruled, however, five years later by Madden v. Kentucky.(30) Since then, the only attention the Clause received was from commentators; the Clause was a dead letter for the Supreme Court.

   3. Saenz's Salvo: A Return to Slaughter-House or the Beginning of Something New?

      The Court's decision in Saenz technically does nothing more than restore the old Slaughter-House doctrine. But while Saenz does not alter or expand that doctrine, it does reassert it for the first time in over fifty years. The Court's reliance on the Clause to invalidate legislation, and its recognition of the Clause as a source of substantive...