Interactive Constitution Essay: Akhil Amar, The Privileges or Immunities Clause: America’s Lost Clause

Ask any American for a list of the most important Supreme Court cases of the last century, and certain canonical names are sure to follow: Gideon v. Wainwright (1963), ensuring a right to counsel; Engel v. Vitale (1962), ending official prayer in public schools; Miranda v. Arizona (1966), protecting the rights of the accused; New York Times v. Sullivan (1964), affirming America’s commitment to robust free speech rights. For most Americans, these cases represent the core of our Constitution and, in particular, the power of the key protections enshrined in our Bill of Rights. However, strictly speaking, these cases are not Bill of Rights cases.

As originally written and ratified, the Bill of Rights protected against abuses by the federal government, not—as was the case in each of the canonical decisions listed above—against abuses by state and local governments. The federal Constitution today reaches these cases because of an amendment ratified nearly a century after the Founding—the Fourteenth Amendment—and authored by an important generation of constitutional innovators forgotten by too many Americans, the Reconstruction Republicans.

Today, the Fourteenth Amendment is one of the most powerful provisions in the U.S. Constitution. The Supreme Court has read it to protect a variety of rights against state abuses—both substantive rights (like religious liberty) and procedural rights (like the right to a jury trial); those explicitly written in the Constitution (like those in the Bill of Rights) and those that are not (like the right to privacy); those that apply in the political realm (like the right to vote) and those that have nothing to do with voting (like the rights of minors). Can a single sentence in a constitutional amendment ratified nearly a century after the Founding really justify this robust body of case law?

Let’s begin with the Bill of Rights. The Supreme Court began to apply key Bill of Rights protections against state abuses in the late nineteenth century. Was this move consistent with the Fourteenth Amendment’s text and history?

As written by Ohio Congressman John Bingham, a crucial clause of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the nineteenth century (just as today), these “privileges” and “immunities” included key Bill of Rights protections like free speech. Even the infamous Dred Scott v. Sandford (1857) decision—the most widely read Supreme Court decision of its day— recognized as much, referring to the Bill of Rights as “rights and privileges of citizens” and specific protections like the “liberty of speech” and the right to “keep and carry arms” as “privileges and immunities of citizens.” Bingham’s Privileges or Immunities Clause simply declared that in post-Civil War America, states would no longer be permitted to abuse these fundamental rights—as they so often had in the pre-Civil War and Reconstruction-era South. The centrality of these rights, especially the rights of robust political expression, to the Reconstruction generation is obvious in the political slogan that helped launch the Republican Party—the driving force of the Fourteenth Amendment. In its very first presidential campaign, in 1856, the Republican Party nominated John C. Fremont and explained to all America just what the party stood for: “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont.”

The Clause’s history confirms this reading. When explaining his Amendment, Bingham consistently tied the Privileges or Immunities Clause to the individual protections enshrined in the Bill of Rights. And other key Reconstruction leaders—like the Amendment’s spokesperson in the U.S. Senate, Michigan Senator Jacob Howard—followed suit. . . .

Finally, the Civil War and Reconstruction transformed the core meaning of certain key Bill of Rights protections. Take the Second Amendment, for instance. At the Founding, this Amendment protected the collective right to bear arms in a well-regulated militia for purposes of protecting the American people against centralized tyranny. However, by the time “We the People” ratified the Fourteenth Amendment, the Civil War—a war won by a strong federal army over rebellious states—shattered this original vision. Rather than requiring a gun for purposes of mustering as part of one’s local militia, Reconstruction-era families—particularly, African-American families and white Unionists in the South—needed guns in their homes to protect themselves and their families from local violence by white vigilantes. In the process, the Second Amendment’s core meaning shifted from a collective right addressing the threat of federal government oppression to an individual right—an individual “privilege” of American citizenship—targeting state and local abuses. . . .

In the end, despite the strong textual, structural, and historical evidence supporting a robust reading of the Privileges or Immunities Clause, the Supreme Court gutted this key provision shortly after the Fourteenth Amendment’s ratification—in the 1873 Slaughter-House Cases. The Court then waited decades before beginning to protect Americans against state violations of various fundamental rights, first in 1897 in a case involving the right to just compensation and then in a string of cases in the twentieth century involving core individual freedoms, including free speech, religious liberty, the rights of the accused, and the right to privacy. However, even then, the justices didn’t use the clean text of the Privileges or Immunities Clause to make this move, instead relying on the Fourteenth Amendment’s Due Process Clause. While this text fit nicely with procedural protections like the right to a jury, it was a peculiar fit with key substantive freedoms like the right to free speech.

Bingham and his fellow Fourteenth Amendment Framers deserve better. Through the Fourteenth Amendment (and its Privileges or Immunities Clause), they envisioned a new America, one in which Americans were finally protected from state violations of their most cherished rights. By refusing to admit error, the Supreme Court divorced one of its most important constitutional achievements—protecting key freedoms against state abuses—from the Constitution’s text and history. As is often the case, the Constitution itself is more inspiring—and sensible—than the Supreme Court’s handiwork.