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.

  • 2
    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
  • @DrunkCynic the choice of "and" in one case and "or" in the other is because one is a positive statement and the other negative. The first says "everybody gets A and B"; the second says "states can't curtail A or B." But they mean the same thing: that both privileges and immunities are protected. – phoog Oct 31 at 18:33
  • @phoog I agree and understand the differences between the two. The aim is to focus investigation more towards earlier understands of the Article. The issue also needs a better citation than Slaughthouse, because it resoundly rejected in Constitutional scholarship. – Drunk Cynic Oct 31 at 18:57

Why has it never been read as recognition of the Federal government's role in protecting the rights of citizens within their own State?

The simple answer is that the plain language of the Section does not address protecting the rights of citizens within their own state; that was not the original intent of that Section of the Constitution.

Constitution of the United States, Article IV, Section 1 addresses comity between the Several States; for the Union to survive citizens of any State within the Union must be protected in any other State within the Union the same as the State's own citizens. Similarly, the Section addresses property rights; that is, the right to have property rights in the Several States; for example, return of property from another state; see, e.g., Fugitive Slave Act 1850

Section 5

And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant, or other process, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of such claimant, on the motion of such claimant, by the Circuit or District Court for the district of such marshal; and after arrest of such fugitive, by such marshal or his deputy, or whilst at any time in his custody under the provisions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or District whence he escaped: and the better to enable the said commissioners, when thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the Constitution of the United States and of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; with authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to ensure a faithful observance of the clause of the Constitution referred to, in conformity with the provisions of this act; and all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose; and said warrants shall run, and be executed by said officers, any where in the State within which they are issued.

Amendment 14 to the Constitution of the United States addresses incorporating an entire class of persons into the Constitution - from the ratification date of that Amendment forwards, not retroactively.

The citizen of the United States created by the 14th Amendment is not the same citizen of a State described at Article IV, Section 1. Those prisoners of war who purportedly became citizens of the United States pursuant to the ratification of the 14th Amendment were, generally, with few exceptions, not considered citizens of the United States when the Constitution was signed; within the meaning of Article IV, Section 1, in general, see Scott v. Sandford, 60 U.S. 393 (1857)

[p393] 1. But if the plea in abatement is not brought up by this writ of error, the objection to the citizenship of the plaintiff is still apparent on the record, as he himself, in making out his case, states that he is of African descent, was born a slave, and claims that he and his family became entitled to freedom by being taken by their owner to reside in a Territory where slavery is prohibited by act of Congress, and that, in addition to this claim, he himself became entitled to freedom by being taken to Rock Island, in the State of Illinois, and being free when he was brought back to Missouri, he was, by the laws of that State, a citizen.

...

  1. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.
  2. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its "people or citizens." Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

...

  1. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of [p394] the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

[p394] 8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

...

[p405] In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the [p406] rights and immunities which the Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the Constitution brought into existence, but were intended to be excluded from it.

It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations...

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument...

Therefor, a so-called "negro", "african-american" or "black" person was not ever originally intended to be a citizen of the United States within the original meaning of the Constitution of the United States. That or those classes cannot invoke Article IV, Section 1 in any Court of competent Jurisdiction without having a firm understanding of the original construction of the Constitution of the United States and be prepared for potentially years of litigation dealing with assertion of Jurisdiction alone - more any merits of the case are reached, if ever.

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

The 14th amendment created a separate class of "citizen", the citizen created by the 14th Amendment cannot claim "Privileges and Immunities" under Article IV, Section 1 - unless they are a "white man". Those "white men" citizens described in the organic Constitution for the United States needed property right protections as they did business to and fro throughout the Union. Not individual protection by the federal government, but rather, comity between the Several States as to not denying a citizen of one of the Several States those "Privileges and Immunities" guaranteed to its own citizens; else, the Union would spiral into a multitude of factions and dissemble from being a Union.

The fact that certain classes are not and cannot be a citizen within the original meaning of the Constitution is one reason why assertion of Jurisdiction under Article III alone in federal court by a so-called non-"white" person is generally attempted to be converted to a "Civil Rights" under 42 U.S.C. Section 1983, et al. by a magistrate; because so-called "African-Americans" are still not citizens of the United States within the meaning of the organic Constitution of the United States. So-called "African-Americans" or "blacks" or "negros" were granted civil rights under Amendment 14 to the Constitution of the United States, Civil Rights Act, and Voting Rights Act; that class are not and cannot be a "citizen" within the meaning of the term within the organic Constitution of the United States.

Article IV, Section 1 deals with so-called "white men", the only original citizens of the United States under the original intent of the Constitution, and the Privileges and Immunities that they can assert when traveling and doing business among the Several States in the Union; Amendment 14 deals with U.S. citizens created by statute - not the Constitution. Amendment 14 did not and cannot retroactively change the original intent of the Constitution. The text of the two sections is similar though the legislative history of the provisions reveal that the original intent of the the provisions are applicable to two entirely different classes of "citizens"; the former being "citizens" (so-called "white" men) within Article IV, Section 1; the latter being statutory "citizens" created by Congress, having not natural rights granted by the Constitution, but civil rights granted by Congress.

Thus, the words are not "paraphrased" in the first section of Amendment 14 from Article IV, Section 1; the words apply to an entirely different class - from that point forwards - who the federal government conferred certain "civil rights" upon - not organic constitutional rights.

  • 4
    I've downvoted this tripe for misconstruing the design of the 14th Amendment. The decision of Scott V Sandford is well regarded by Constitutional scholars as being wholly objectionable. The 14th Amendment didn't not create a new class of 'citizen,' instead recognizing all citizens to be of similar station, despite the follow on SCOTUS decisions that hobbled the Amendment. – Drunk Cynic Oct 14 at 2:20
  • @DrunkCynic Your "downvote" is utterly meaningless. The 14th Amendment has more than a single "design". It does not matter what scholars consider "objectionable"; the decision has not been overturned and the language of the decision, delivered by Chief Justice Taney, is historically and legally accurate. You should answer your own question if you are the only individual who knows what you want to read. – guest271314 Oct 14 at 2:22
  • 1
    Would answer it if I could, don't know the answer. However, I do know what the answer is not. – Drunk Cynic Oct 14 at 2:26
  • @DrunkCynic Your statement makes no sense. The 14th Amendment did create a separate "citizen". Were the 14th Amendment repealed, so-called "negros", "blacks", "african-americans" would not have civil rights under the Constitution of the United States; they would not be legal "citizens" of the United States under the organic Constitution of the United States, and are not now. So-called "white men" would still be citizens under the organic Constitution. Article IV Section 1 deals with rights of existing citizens; Amendment XIV deals with creation of a new class of citizens; they are different. – guest271314 Oct 14 at 2:30
  • @guest271314 - I have no clue what you think the 14th amendment says, but nowhere is race referenced in the Constitution or amendments, except for the "excluding Indians not taxed" lines. Repealing it would just mean that only "free Persons" would be counted, and anyone who wasn't free would count as 3/5 again... but there currently are no "other Persons" in the country, and the 13th Amendment ensures there won't be. – Bobson Oct 15 at 22:05

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