The Fourteenth Amendment’s Privileges OR Immunities Clause
The Supreme Court deserves the respect it earns. When it fails to enforce the Constitution as it was written its credibility is strained. Regarding the Fourteenth Amendment’s Privileges or Immunities Clause, it has been wrong for nearly 150 years.
The Bill of Rights was ratified in 1791 in response to complaints that the original Constitution had few protections for citizen liberty from interference by the new federal government. When the Bill of Rights was adopted, its restrictions on government interference with freedom applied only to the federal government. There was nothing in the national Constitution to prevent states from establishing a religion or with a citizen’s speech. The federal government had no power to enforce the Bill of Rights against the states.
There were a few restrictions on state governments in the Constitution. These were found principally in Article I, Section 10. Section 10 mainly limited certain government functions in dealing with foreign governments, coining money and imposing certain types of taxes. There were a few protections for citizens in Section 10. A state could not “pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts”.
There is one other restriction on states in dealing with citizens in the original Constitution. This is the Privileges AND Immunities Clause (also known as the Comity Clause) of Article IV, Section 2:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. “
The essence of the Privileges AND Immunities Clause is that a state must treat citizens of other states the same as it treats its own citizens. The Article I and IV provisions were the only original constitutional provisions providing protections for citizens from state governments. For protection from state government interference with their rights, citizens needed to look to state constitutions.
Following the Civil War, the Thirteenth Amendment abolished slavery. The Thirteenth Amendment did nothing to address the citizenship status of former slaves and said nothing about providing them the liberty protections that existed in the state constitutions. The national government had no authority to ensure that newly freed slaves would enjoy the protections of the Bill of Rights.
For the US Congress to have such power, another constitutional amendment was necessary.
Keep reading how SCOTUS “forever altered the balance between the states and federal government established in the original Constitution.”