Privileges or Immunities Clause

The Privileges or Immunities Clause is a provision of the Fourteenth Amendment to the United States Constitution. It is unique among constitutional provisions in that it was all but read out of the Constitution in a 5-4 decision of the Supreme Court (see Slaughterhouse Cases of 1873) and has remained almost dormant since. It was perhaps originally intended to incorporate the "first eight amendments" of the U.S. Bill of Rights against state laws, much of which has instead been acheived by means of "substantive due process."

Related Topics:
Fourteenth Amendment to the United States Constitution - Supreme Court - Slaughterhouse Cases - 1873 - Incorporate - U.S. Bill of Rights - Substantive due process

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:No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

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Legal scholars agree on little beyond the conclusion that the clause does not mean what the Supreme Court said it meant in 1873. Some theories were noted in dissent to Saenz v. Roe:

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• Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an antidiscrimination provision)
• D. Currie, The Constitution in the Supreme Court 341-351 (1985) (same)
• 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089-1095 (1953) (Clause incorporates first eight amendments of the Bill of Rights)
• M. Curtis, No State Shall Abridge 100 (1986) (Clause protects the rights included in the Bill of Rights as well as other fundamental rights)
• B. Siegan, Supreme Court's Constitution 46-71 (1987) (Clause guarantees Lockean conception of natural rights)
• Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521-536 (1989) (same)
• J. Ely, Democracy and Distrust 28 (1980) (Clause "was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists ... or in any specific way gives directions for finding")
• R. Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866)
• R. Bork, The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot)

It is perhaps the dispute over the clause's meaning that has rendered it, for now, a trivial part of constitutional law.

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