Privileges or Immunities: Academic Resources

After the Civil War, free blacks and former Union soldiers faced serious danger from Southern state governments that stripped them of economic liberty and their right to bear arms, leaving them vulnerable to virtual enslavement and hate-motivated crime.  The Privileges or Immunities clause of the Fourteenth Amendment, ratified in 1868, was written to address these abuses by ensuring that rights guaranteed in the federal constitution are protected against the states.  Seven years after ratification, however, the amendment’s Privileges or Immunities clause was practically nullified by the Slaughter-House decision.  Today, that judicial error continues to take its toll on important freedoms like economic liberty: unenumerated rights that are left vulnerable to government abuse without the protection of the Privileges or Immunities clause.

Economic liberty is one of the pillars of constitutional freedom defended by the Institute for Justice.  A new case going before the Supreme Court, McDonald v. City of Chicago, provides a unique opportunity to restore the Privileges or Immunities clause to its full meaning.  The Institute for Justice has filed two briefs in this case to support the reconstitution of this important protection from government intrusion on economic liberty and the right to bear arms.

Collected below are primary sources and scholarly publications on the history of the Privileges or Immunities clause, its sudden death, and potential revival.

The Constitution, Slavery and Reconstruction
Slaughter-House and Civil Rights
Substantive Due Process and the Second Amendment
Privileges or Immunities and Economic Liberty

The Constitution, Slavery and Reconstruction

These sources depict the conflict between state and federal power before the Civil War, and the renewed debate during Reconstruction, as former Confederate states violated rights protected in the federal constitution by codifying the persecution of freed blacks and former Union soldiers.

Case Law

Barron v. Baltimore (1833)
Dred Scott

Statutory Law

Freedmen’s Bureau Act (1865)
Civil Rights Act of 1866

Other Sources

Congressional Debates:
John Bingham, February 11, 1859 (PDF)
John Bingham, February 28, 1866 (PDF)
Frederick Woodbridge, February 29, 1866 (PDF)
John Bingham, May 10, 1866 (PDF)
Jacob Howard, May 23, 1866 (PDF)

Lysander Spooner, The Unconstitutionality of Slavery (1845, 1860)

Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (1849)

Lysander Spooner, No Treason (1867-1870)

Christopher Tiedeman, The Unwritten Constitution of the United States (1890)

Richard Aynes, “On Misreading John Bingham and the Fourteenth Amendment” (1993)

David T. Hardy, “Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68” (2009)

Slaughter-House and Civil Rights

The 1872 Slaughter-House decision effectively nullified the Privileges or Immunities clause by narrowing the definion of the federal rights it protects to a few specific privileges like access to national waterways.  This stripped the clause of its vital original function, the protection of all federal rights – enumerated and unenumerated – against the states.  In rendering Privileges or Immunities an “inkblot,” the Slaughter-House decision opened the door for Jim Crow, and began a 100-year process of recovering lost rights that is still incomplete.

Case Law

Slaughter-House (1872)
Wysinger v. Crookshank (1890)
Plessy v. Ferguson (1896)
Brown v. Board of Education (1954)
Saenz v. Roe (1999)

Other Sources

Richard Aynes, “Constricting the Law of Freedom,” a recent examination of Slaughter-House (1994)

Substantive Due Process and the Second Amendment

The doctrine of “substantive due process” has been used to replicate the function of the Privileges or Immunities clause by “incorporating” federal rights against the states through individual cases.  The right to bear arms is one of the few Bill of Rights privileges still unincorporated.  Heller v. District of Columbia established that the Second Amendment protects anindividual right to bear arms, and the upcoming McDonald v. City of Chicago will incorporate that right against the states.  However, it remains to be determined how that right will be incorporated – creating the unique opportunity to argue Privileges or Immunities back into the book.

Case Law

Presser v. Illinois (1886)
Heller v. District of Columbia

Institute for Justice Amicus Briefs for McDonald

Chicago Gun Ban Certiorari Brief
Chicago Gun Ban Merits Brief

Scholarship by IJ Attorneys

Audio: IJ Senior Attorney Clark M. Neily III debates Loyola Law School professor Kurt Lash on the Second Amendment for the Federalist Society’s SCOTUScast (2009)

Clark M. Neily III and Robert J. McNamara, “Getting Beyond Guns:  Context for the Coming Debate over Privileges or Immunities” (2009); condensed and reprinted by the Federalist Society here.

Clark M. Neily III, “The Right to Keep and Bear Arms in the States: Ambiguity, False Modesty, and (Maybe) Another Win for Originalism” (2009)

Other Sources

Kimberly C. Shankman & Roger Pillon, “Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government” (1998)

Michael Lawrence, “Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses” (2006)

Josh Blackman and Ilya Shapiro, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States” (2009)

Privileges or Immunities and Economic Liberty

The Privileges or Immunities clause was originally designed to address government persecution of disfavored groups.  The goverment oppressed these groups by depriving them of their right to bear arms and their economic liberty.  That’s why the Privileges or Immunities clause is a much stronger protection against the states than piecemeal “incorporation” of rights – “Privileges or Immunities” protects even unenumerated rights like economic liberty, the deprivation of which has been proven as a tool of tyrannical governments.

Federalist No. 11 describes the role of economic liberty in a free society (1787)

The Institute for Justice’s economic liberty cases incorporate a strong effort to overturn Slaughter-House‘s incorrect interpretation of the Privileges or Immunities clause. The cases below include Privileges-or-Immunities arguments in IJ’s defense of the right to earn an honest living.

Institute for Justice cases:

Florida Interior Design
Massachusetts Nautical Tours
Maryland Funeral Homes
Minnesota Hairbraiding
Mississippi Hairbraiding
Washington (state) Hairbraiding
Arizona Hairbraiding
Louisiana Florists
Oklahoma Caskets
Tennessee Caskets
Ohio Hairbraiding
California Hairbraiding
New York Vans
Washington, DC Hairbraiding