Amendment 14 — Modern Doctrine On Privileges Or Immunities Clause

prev | next

Fourteenth Amendment , Section 1:

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; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Although the Court in the Slaughter-House Cases expressed a reluctance to enumerate those privileges and immunities of United States citizens that are protected against state encroachment, it nevertheless felt obliged to suggest some. Among those that it identified were the right of access to the seat of government and to the seaports, subtreasuries, land officers, and courts of justice in the several states, the right to demand protection of the Federal Government on the high seas or abroad, the right of assembly, the privilege of habeas corpus, the right to use the navigable waters of the United States, and rights secured by treaty.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn1amd14 " 83 U.S. (16 Wall.) 36, 79–80 (1873). ") In Twining v. New Jersey,[2](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn2amd14 " 211 U.S. 78, 97 (1908). ") the Court recognized “among the rights and privileges” of national citizenship the right to pass freely from state to state,[3](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn3amd14 " Citing Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868). It was observed in United States v. Wheeler, 254 U.S. 281, 299 (1920), that the statute at issue in Crandall was actually held to burden directly the performance by the United States of its governmental functions. Cf. Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283, 491–92 (1849) (Taney, C.J., dissenting). Four concurring Justices in Edwards v. California, 314 U.S. 160, 177, 181 (1941), would have grounded a right of interstate travel on the Privileges or Immunities Clause. More recently, the Court declined to ascribe a source but was content to assert the right to be protected. United States v. Guest, 383 U.S. 745, 758 (1966); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969). Three Justices ascribed the source to this clause in Oregon v. Mitchell, 400 U.S. 112, 285–87 (1970) (Stewart and Blackmun, J.J., and Burger, C.J., concurring in part and dissenting in part). ") the right to petition Congress for a redress of grievances,[4](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn4amd14 " Citing United States v. Cruikshank, 92 U.S. 542 (1876). ") the right to vote for national officers,[5](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn5amd14 " Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S. 58 (1900). Note Justice William O. Douglas’s reliance on this clause in Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (concurring in part and dissenting in part). ") the right to enter public lands,[6](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn6amd14 " Citing United States v. Waddell, 112 U.S. 76 (1884). ") the right to be protected against violence while in the lawful custody of a United States marshal,[7](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn7amd14 " Citing Logan v. United States, 144 U.S. 263 (1892). ") and the right to inform the United States authorities of violation of its laws.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn8amd14 " Citing In re Quarles and Butler, 158 U.S. 532 (1895). ") Earlier, in a decision not mentioned in Twining, the Court had also acknowledged that the carrying on of interstate commerce is “a right which every citizen of the United States is entitled to exercise.” [9](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn9amd14 " Crutcher v. Kentucky, 141 U.S. 47, 57 (1891). ")

In modern times, the Court has continued the minor role accorded to the Clause, only occasionally manifesting a disposition to enlarge the restraint that it imposes upon state action.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn10amd14 " Colgate v. Harvey, 296 U.S. 404 (1935), which was overruled five years later, see Madden v. Kentucky, 309 U.S. 83, 93 (1940), represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the Privileges or Immunities Clause into a source of protection of other than those “interests growing out of the relationship between the citizen and the national government.” In Harvey, the Court declared that the right of a citizen to engage in lawful business in other states, such as by entering into contracts or by lending money, was a privilege of national citizenship, and this privilege was abridged by a state income tax law which excluded interest received on money from loans from taxable income only if the loan was made within the state. ") In Hague v. CIO,[11](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn11amd14 " 307 U.S. 496, 510–18 (1939) (Justices Roberts and Black; Chief Justice Hughes may or may not have concurred on this point. Id. at 532). Justices Harlan Stone and Stanley Reed preferred to base the decision on the Due Process Clause. Id. at 518. ") two and perhaps three justices thought that the freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen, and, in Edwards v. California,[12](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn12amd14 " 314 U.S. 160, 177–83 (1941). ") four Justices were prepared to rely on the Clause.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn13amd14 " See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id. at 285–87 (Justices Stewart and Blackmun and Chief Justice Burger). ") In many other respects, however, claims based on this Clause have been rejected.[14](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-privileges-or-immunities-clause#fn14amd14 " E.g., Holden v. Hardy, 169 U.S. 366, 380 (1898) (statute limiting hours of labor in mines); Williams v. Fears, 179 U.S. 270, 274 (1900) (statute taxing the business of hiring persons to labor outside the state); Wilmington Mining Co. v. Fulton, 205 U.S. 60, 73 (1907) (statute requiring employment of only licensed mine managers and examiners and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen); Heim v. McCall, 239 U.S. 175 (1915); Crane v. New York, 239 U.S. 195 (1915) (statute restricting employment on state public works to citizens of the United States, with a preference to citizens of the state); Mo. Pac. Ry. v. Castle, 224 U.S. 541 (1912) (statute making railroads liable to employees for injuries caused by negligence of fellow servants and abolishing the defense of contributory negligence); W. Union Tel. Co. v. Milling Co., 218 U.S. 406 (1910) (statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873); In re Lockwood, 154 U.S. 116 (1894) (refusal of state court to license a woman to practice law); Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879) (law taxing a debt owed a resident citizen by a resident of another state and secured by mortgage of land in the debtor’s state); Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1874); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86, 91 (1890); Giozza v. Tiernan, 148 U.S. 657 (1893) (statutes regulating the manufacture and sale of intoxicating liquors); In re Kemmler, 136 U.S. 436 (1890) (statute regulating the method of capital punishment); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874) (statute regulating the franchise to male citizens); Pope v. Williams, 193 U.S. 621 (1904) (statute requiring persons coming into a state to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters); Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922) (statute restricting dower, in case wife at time of husband’s death is a nonresident, to lands of which he died seized); Walker v. Sauvinet, 92 U.S. 90 (1876) (statute restricting right to jury trial in civil suits at common law); Presser v. Illinois, 116 U.S. 252, 267 (1886) (statute restricting drilling or parading in any city by any body of men without license of the governor); Maxwell v. Dow, 176 U.S. 581, 596, 597–98 (1900) (provision for prosecution upon information, and for a jury (except in capital cases) of eight persons); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 71 (1928) (statute penalizing the becoming or remaining a member of any oathbound association—other than benevolent orders, and the like—with knowledge that the association has failed to file its constitution and membership lists); Palko v. Connecticut, 302 U.S. 319 (1937) (statute allowing a state to appeal in criminal cases for errors of law and to retry the accused); Breedlove v. Suttles, 302 U.S. 277 (1937) (statute making the payment of poll taxes a prerequisite to the right to vote); Madden v. Kentucky, 309 U.S. 83, 92–93 (1940), (overruling Colgate v. Harvey, 296 U.S. 404, 430 (1935)) (statute whereby deposits in banks outside the state are taxed at 50¢ per $100); Snowden v. Hughes, <a href="/supremecourt/text/321/1" aria-labe