The framers of the “Privileges or Immunities” Clause sought to prevent the states from making laws that abridge the fundamental rights of their own citizens. These rights likely included the Article IV “privileges and immunities” identified by Justice Washington in Corfield v. Coryell, the personal guarantees in the Bill of Rights, and the fundamental rights protected by the Civil Rights Act of 1866.
The Enactment of the Civil Rights Act of 1866
The adoption of the 13th Amendment in the House of Representatives
Justice Bushrod Washington
Justice Miller wrote the majority opinion, joined by Justices Clifford, Strong, Hunt, and Davis. In dissent were Chief Justice Chase, and Justices Field, Bradley, and Swayne.
Behind Door #1, the Fourteenth Amendment could be read to protect an old group of fundamental rights, “privileges or immunities,” that “citizens of the United States,” all share in common. For example, before the 14th Amendment, Article IV’s protection of the privileges and immunities identified in Corfield was limited: a state could not discriminate against citizens coming from another state. And the rights in the first eight amendments were enforceable only against the federal government. After the 14th Amendment was ratified, both Congress and the federal courts would be empowered to prevent states from abridging these old fundamental rights.
Alternatively, behind Door #2, the Clause can be read to refer solely to the “privileges or immunities of citizens of the United States.” That is, a particular set of distinctly federal or national rights held by virtue of being a “citizen of the United States.” This category would NOT include the rights identified in Corfield or in the Civil Rights Act of 1866.
Justice Miller’s majority opinion stated that the Privileges or Immunities Clause protects a very narrow subset of rights, “which owe their existence to the Federal government, its National character, its Constitution, or its laws.”
Justice Field found that the Fourteenth Amendment “refers to the natural and inalienable rights which belong to all citizens” and “ordains that they shall not be abridged by State legislation.”
Senator Jacob Howard of Michigan
In 1869, Louisiana’s legislature ordered the closure of all private slaughterhouses in New Orleans. The government granted a monopoly to a single, privately owned slaughterhouse. Now, everyone would have to use that facility. A group of butchers sued the state. They argued that the Slaughter-House monopoly that prohibited private butcher shops violated the Privileges or Immunities Clause. Specifically, the law abridged their constitutional “right to exercise their trade” — a right that is not expressly enumerated in the text of the Constitution.
The Court split 5-4, and ruled that the Fourteenth Amendment did not pro- tect this unenumerated right. Justice Miller wrote the majority opinion, joined by Justices Clifford, Strong, Hunt, and Davis. In dissent were Chief Justice Chase, and Justices Field, Bradley, and Swayne.