Three Keys to the Original Meaning Of the Privileges or Immunities Clause.

• Author: Barnett, Randy E.

Establishing the original meaning of the Fourteenth Amendment's Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington's explanation of the meaning of "privileges and immunities" in Corfield v. Coryell; (1) second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard's speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable.

1. CORFIELD V. CORYELL

   We begin with data point number one. The Privileges and Immunities Clause of Article IV, Section 2, provides, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (2) This clause protected the rights of citizens of one state when traveling in another state. Although it was generally taken by courts to bar discrimination against out-of-staters, antislavery activists insisted that it guaranteed to every American citizen the protection of a set of fundamental rights when traveling in an-another state. (3)

   For example, the imprisonment of free black sailors from Northern states by Southern authorities while in Southern ports became a cause celebre in the North. (4) Antislavery activists protested this denial of privileges and immunities under Article IV, Section 2, despite the Southerners' assertion that they were treating out-of-state blacks in the same manner as they treated their own free blacks and hence were not discriminating against them. (5) For the Northerners, the issue was not how a state treated its own citizens, but whether a fundamental right of all citizens was being denied to an out-of-state citizen. (6)

   What were the fundamental rights to which all citizens were entitled under the Privileges and Immunities Clause of Article IV? In 1823, Supreme Court Justice Bushrod Washington, George Washington's nephew, was called upon as a Circuit Judge to address the scope of the rights protected by Article IV, Section 2. (7) He began by identifying the "fundamental" privileges and immunities protected by the clause. He explained:

   We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. (8) For Justice Washington, "privileges and immunities" are rights that (1) "are, in their nature, fundamental"; (2) "belong, of right, to the citizens of all free governments"; and (3) can be found in the positive law in the states, which included common law rights. (9) Justice Washington then proceeded to list some examples, such as the rights to travel, to claim the writ of habeas corpus, to maintain lawsuits, and others. (10)

   In the highlighted passage of Justice Washington's description of these privileges and immunities, he included nearly verbatim the canonical formulation of natural rights penned by George Mason for the Virginia Declaration of Rights, which was replicated in four state constitutions. In his May 27, 1776, committee draft, Mason wrote:

   T[hat] all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. (11) Mason's description of "natural rights" are the same words used by Justice Washington in Corfield. (12)

   It was upon similar language in Article I of the Massachusetts Constitution that the Supreme Judicial Court of Massachusetts based its 1783 ruling that slavery was unconstitutional in that state: (13) "All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." (14)

   If, therefore, the Privileges or Immunities Clause of the Fourteenth Amendment provided federal protection to the same set of fundamental rights to which the Privileges and Immunities Clause of Article IV refers, then these privileges or immunities include, inter alia, the natural right to "the enjoyment of life and liberty, with the [natural] right to acquire and possess property of every kind, and to pursue and obtain happiness and safety." (15)

2. THE CIVIL RIGHTS ACT OF 1866

   Data point number two: On April 9, 1866, Congress passed the Civil Rights Act of 1866, officially styled as an act "to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication." (16) Commonly known as the Civil Rights Act of 1866, the act was passed pursuant to Congress's enumerated power to enforce the Thirteenth Amendment's ban on involuntary servitude. (17) It began by...