From the United States Constitution, Article IV, Section II, Clause I:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

In the many times this clause was referenced in the courts, it was mostly associated with the rights of a visiting citizen from another state still being protected.

Why has it never been read as recognition of the Federal government's role in protecting the rights of citizens within their own State? Were there political machinations that prevented such a reading, possibly due to the importance of State sovereignty at the time of ratification?

These words were then paraphrased in the first section of the 14th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,...

Combined with the fifth section of the same amendment, this was seen as formerly empowering the Federal government to protect individual rights. I've seen thus as just a reiteration of the restriction already existing on State government. However, it is viewed as being read out of the constitution by the Slaughter House cases of 1873, not rising again until McDonald v Chicago of 2010.

So, why was the "Privileges and Immunities" clause never reviewed, referenced or addressed?

  • 1
    As pure lay-person speculation, I'd think that it could be paraphrased "If you're a citizen of a state, you are entitled to all the privileges and immunities of citizens, no matter what state you're in". But I have no clue if that was the actual intent. Interesting question! – Bobson Sep 13 at 21:05
  • My reading of Article IV, Section II, Clause I is that you can treat out-of-state citizens crappily if you treat your own citizens crappily. In other words, citizens are entitled to Privileges and Immunities of the state they are in, even if it's not their home state (but, of course, the 11th Amendment changes this). That's why it says "Privileges and Immunities of Citizens in the several States", not "Privileges and Immunities of Citizens of the several States". – barrycarter Sep 15 at 15:06

A 5-4 ruling of the United States Supreme Court in 1873 in the Slaughter House cases gave the privileges and immunities clause a very narrow reading. This ruling was made over a strong dissent:

Justice Stephen J. Field wrote in his dissent (which was the only dissent in the case joined by all the other dissenting justices) that Miller's opinion effectively rendered the Fourteenth Amendment a "vain and idle enactment."

Field, joined by three other justices, wrote an influential dissent in which he accepted Campbell's reading of the amendment as not confined to protection of freed slaves but embraced the common law presumption in favor of an individual right to pursue a legitimate occupation. Field's reading of the due process clause of the amendment would prevail in future cases in which the court read the amendment broadly to protect property interests against hostile state laws.

The contemporary majority view is that the judges in the majority and in the subsequent cases continuing these precedents did so with an intent to undermine the 14th Amendment and to limit the rights of freed slaves. This movement in the judiciary gained further steam when Plessy v. Ferguson was decided holding that "separate but equal" accommodations satisfy equal protection requirements.

Since other routes under Brown v. Board of Education and the 14th Amendment due process clause began to address what would have made more sense as privileges and immunities claims, no serious effort was made to reinvigorate the privileges and immunities clause when segregationists no longer controlled the court, and the Slaughter House cases remain settled law.

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    I've down voted your answer because you're looking at the wrong clause. The 14th clause is "privileges or immunities," while Article IV is "privileges and immunities." I've edited the question to differentiate the two. – Drunk Cynic Sep 13 at 21:23
  • I know that this portion of the 14th can be seen as an effort to reassert the reading the question is focused on, and that Slaughter House is seen as an attack on the same. If you could bridge from the Constitution to the Amendment, and then close with what you have, I'd vote up. That is the gap I've run into. – Drunk Cynic Sep 13 at 21:32

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