The Meanings of the Privileges and Immunities of Citizens on the Eve of the Civil War
Document Type
Article
Publication Title
Notre Dame Law Review
Abstract
The Fourteenth Amendment to our Constitution provides, in part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This “Privileges or Immunities Clause” has been called “the darling of the professoriate.” Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. This Article proceeds from the same professorial ardor. Still, relative to many other treatments, this Article is both more modest and more ambitious. On the one hand, I do not propose to offer a full account of the original meaning of the Clause. On the other, I do aim to help build a genuine scholarly consensus by presenting compelling evidence that has been, for the most part, largely overlooked by contemporary scholars. The focus of this particular study is the interpretation of the “privileges and immunities of citizens” offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the eve of the Civil War. This study proceeds in four parts. First, the Article defends the relevance of this inquiry. I am to refute the conclusion of Justice Miller and (more recently) of Justice Thomas that the “privileges and immunities of citizens in the several states” secured by Article IV were generally understood to be sharply distinct from the “privileges or immunities of citizens of the United States” secured by the Fourteenth Amendment. Rather, the authors of the Clause largely believed that it would provide greater security to the privileges guaranteed in Article IV. Second, the Article provides a brief account of the understanding of the Privileges and Immunities Clause before 1857, concluding that the provision’s original understanding was ambiguous and generated only sporadic (though important) national controversy and commentary. As a result, up to 1857, the Privilege and Immunities Clause’s meaning remained largely obscure, even among jurists. Third, the Article explains that from 1857 to 1861, in the course of national debates, at least three contrasting interpretations rose to substantial public prominence: (1) a pro-slavery, absolute-rights reading; (2) an absolute-rights reading endorsed by Republicans, which sometimes incorporated claims of black citizenship; and (3) a strictly interstate-equality understanding. The prominence of the first two readings represented radical developments relative to the third reading, a reading that had prevailed in the past and would prevail again in courts in the future. Consequently, there arose a substantial gap between the judiciary and the polity as a whole as to the meaning of the constitutional privileges of citizenship. Fourth, this Article concludes by noting the ways in which this antebellum evidence illuminates both (1) the original understanding of the “privileges [and] immunities of citizens of the United States” secured by the Fourteenth Amendment and (2) the vulnerability of this Amendment to judicial misconstruction in the Slaughter-House Cases.
First Page
1117
Last Page
1166
Publication Date
3-2016
Recommended Citation
David R. Upham, The Meanings of the Privileges and Immunities of Citizens on the Eve of the Civil War, 91 NOTRE DAME L. REV. 1117 (March 2016).