Congress' Power to Define the Privileges and Immunities of Citizenship

Harvard Law Review, February 2015 | Go to article overview

Congress' Power to Define the Privileges and Immunities of Citizenship


In 1866, months after the end of the Civil War and the ratification of the Thirteenth Amendment, Congressman John Bingham introduced a new constitutional amendment to the floor of the House of Representatives. (1) Bingham announced that his amendment would "arm the Congress ... with the power to enforce the bill of rights" and require state governments to respect the privileges and immunities of citizens of the United States on equal terms. (2) The proposal stated in its entirety:

   The Congress shall have power to make all laws which shall be
   necessary and proper to secure to the citizens of each State all
   privileges and immunities of citizens in the several States, and to
   all persons in the several States equal protection in the rights of
   life, liberty, and property. (3)

The House rejected the amendment as unneeded, however, because even its supporters believed Congress already possessed the power it supposedly conferred. (4)

Indeed, later that year and without the firepower of Bingham's amendment, Congress passed the Civil Rights Act of 1866. (5) That statute not only made all persons born in the United States citizens, but also prohibited state governments from discriminating against "such citizens" with regard to their right to contract, sue, testify, hold property, or receive the "full and equal benefit of all laws." (6) Opponents of the Civil Rights Act, including Bingham, argued that Congress had no constitutional power to interfere with these state-law "privileges and immunities." (7) Bingham was so persistent that even after the Act's passage, he introduced his constitutional amendment again--this time as the first and fifth sections of what would become the Fourteenth Amendment. (8)

Much scholarly and judicial attention has been dedicated to deciphering the Privileges or Immunities Clause of the Fourteenth Amendment, which states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (9) Some scholars, echoing antebellum judicial opinions, (10) suggest "privileges or immunities" refer to so-called natural rights, such as property ownership. (11) Others suggest "privileges or immunities" refer to protections granted by positive law, either by state law (12) or by the Bill of Rights. (13) Both groups criticize nineteenth-century judicial interpretations, such as the Slaughter-House Cases, (14) for arriving at yet another suspect: benefits that require federal citizenship for their protection, such as the right to use navigable waters, travel, or seek protection overseas. (15) Much less attention has been dedicated to determining the appropriate detective--is it even up to courts to determine what the "privileges or immunities of citizens" are in the first place?

This Note suggests that in the eighteenth and nineteenth centuries, privileges and immunities were widely understood as the products of legislation, to be defined by courts and legislatures. The Privileges or Immunities Clause was understood as empowering Congress, not just courts, to itemize particular rights as subject to federal protection. Just as the Civil Rights Act of 1866 enumerated attributes of citizenship and protected them from state discrimination, the 1866 Congress thought the Fourteenth Amendment would confirm its authority to articulate attributes of citizenship and prevent states from granting or withholding those privileges unequally--even if they were solidly within core state functions. Despite modern Supreme Court restrictions on Congress's power to enforce the Fourteenth Amendment--most notably in City of Boerne v. Flores (16)--a historically sensitive interpretation of the Privileges or Immunities Clause today would give Congress the power to define certain rights as privileges of federal citizenship that states cannot distribute unequally. Such privileges could include the right of same-sex couples to marry, the right of ex-felons to vote, or the right of children to receive an education. …

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