UCLA National Black Law Journal Title Reviving the Privileges or Immunities Clause Permalink https://escholarship.org/uc/item/8r747795 Journal National Black Law Journal, 6(2) ISSN 0896-0194 Author Forman, Ivery Publication Date 1979 Peer reviewed eScholarship.org Powered by the California Digital Library University of California REVIVING THE PRIVILEGES OR IMMUNITIES CLAUSE f foyur, or nearly five, milion people have been !ffedfrom the thraildom of sfa very and made free, !f the Government by its amendments to the Constilu- tion has guaranteed to them all rights and immunities, as to other citizens, they must necessarily therefore carry along with them all the privileges en- joyed by all other citizens of the Republic. Richard H. Cain I. INTRODUCTION The fourteenth amendment provides a trilogy of protections against state infringement of personal rights and freedoms.' Civil rights litigants often rely upon the due process and equal protection clauses of the four- teenth amendment for constitutional safeguards against the abuse of state police powers. On the other hand, the fourteenth amendment's privileges or immunities clause2 has practically no significance in present day civil rights litigation.3 The relative subordination of the privileges or immunities clause has been attributed to the restrictive judicial interpretation of that clause in the Slaughter-House Cases. 4 More importantly, the prevalent judicial con- struction of the privileges or immunities clause, promulgated in Slaughter- House, appears to be contrary to the expressed intent of the framers of the fourteenth amendment. Despite the specific phraseology of the fourteenth amendment, its cen- tral purpose was to secure the freedom and equality of Blacks after the Civil War.5 Each clause in the amendment had a definite function in securing a * Remarks of Cong. Richard H. Cain (R.S.C.) on the Civil Rights Bill, 43rd Cong. 1st Sess., (Jan. 10, 1874), reprintedin A. MCFARLIN, BLACK CONGRESSIONAL RECONSTRUCTION ORATORS AND THEIR ORATIONS 1869 - 1879, 35 (1976). I. U.S. CONST. amend. XIV, §1 (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 jurisdic- tion the equal protection of the laws.). 2. This clause should not be confused with similar language in Art. IV, § 2 of the Constitu- tion, which reads "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States .. " As will be discussed later there is some controversy as to the relationship between these two constitutional provisions, but the latter is usually interpreted as prohibiting discrimination by the states against citizens of another state. It does not, however, prevent a state from infringing upon fundamental rights of persons as long as it treats its own citizens and those of another state alike. See Doe v. Bolton, 410 U.S. 179, 200 (1973); Toomer v. Witsell, 334 U.S. 386, 403 (1948); Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183-85 (1869); Rios v. Jones, 63 I11. 2d 488, 498, 348 N.E.2d 825, 830 (1976); Antieau, Paul's Perverted Privileges and Immunities Clause ofArticle Four, 9 WM. & MARY L. REv. 1 (1967). 3. Benoit, The Privileges or Immunities Clause ofthe Fourteenth Amendment.: Can There Be Life After Death?, 11 SUFFOLK L. REV. 61, 61-62, 99 (1976); Cf. Lomen, Privileges and Immunities Under the FourteenthAmendment, 18 WASH. L. REV. 120, (1943), (privileges or immunities clause is of limited practical significance); Kurland, The Privilegesor Immunities Clause. "1isHour Come RoundAt Last"?, 1972 WASH. U. L. Q. 405 (1972). 4. 83 U.S. (16 Wall.) 36 (1872). 5. Id at 71; Cox, The Supreme Court, 1965 Term-Foreword"ConstitutionalAdjudication and the Promotion ofHuman Rights, 80 HARV. L. REV. 91, 114 (1966); Kinoy, The ConstitutionalRight ofNegro Freedom, 21 RUTGERS L. REV. 387, 388 (1967). 212 THE BLACK LAW JOURNAL certain measure of protection against state infringement upon civil rights.6 "Juridically, relinquishment of federal power to enforce the Reconstruction Amendments [is] a violation of the nation's federal schema as well as specific Reconstruction guarantees."7 Thus, any unreasonable judicial emasculation of the privileges or immunities clause might have had a significant effect upon the protection of the rights of Blacks as contemplated by its framers. In fact, it has been argued that the dismantling of reconstruction rights by the federal government8 imposes a duty upon that government to recompense its Black citizens. This Comment will examine the legislative history and the judicial in- terpretation of the privileges or immunities clause. Then, the right to reme- dial compensation or reparations for Blacks, as a consequence of the judicial construction of fourteenth amendment rights and privileges will be dis- cussed. Finally, it will be indicated how, the privileges or immunities clause should now be interpreted. II. THE LEGISLATIVE HISTORY The extreme political partisanism which characterized the period before the adoption of the fourteenth amendment led Professor Charles Fairman to describe the era as the "age of hate in America."9 In the 39th Congress, a cogent group of radical republicans'0 introduced new legislation to reduce "an abstract adherence to the concept of equality in the South to solemn and tangible commitments."" They felt that a constitutional basis was required to more forcefully and adequately confront state practices that conspicu- ously disregarded national civil rights legislation. 2 While the congressional majority pushed for new federal constitutional powers, conservatives both inside and outside of Congress remained steadfast in support of antebellum federalism.'3 Thus, the nature of national citizenship and the relations of national and local governments were desperately in need of clarification. " During the opening session of the 39th Congress, several proposals were offered to expand federal powers in order to eradicate the incidents of slav- 6. Lomen, supra note 3, at 121. 7. Schwartzbaum, In Search of a ConstitutionalRight to Federal Compensationfor the Black and the Poor, 15 How. L.J. 590, 597 (1969). 8. Id at 601. But see BITTKER, THE CASE FOR BLACK REPARATIONS (1973). 9. Fairman, Does the Fourteenth Amendment Incorporatethe Bill of Rights? The OriginalUn- derstanding, 2 STAN. L. REV. 5, 9 (1949) [hereinafter cited as Fairman]. 10. Leaders of the congressional policy committee in the 39th Congress. See H. ABRAHAM, FREEDOM AND THE COURT n. 10 (1977) [hereinafter cited as ABRAHAM]. 11. Anderson, The Bill of Rights, the FourteenthAmendment, and the FederalSystem, in As- PECTS OF LIBERTY 287, 295 (1958) [hereinafter cited as Anderson]. See A. LIEN, CONCURRING OPINION 37 (1957) [hereinafter cited as LIEN]. 12. LIEN, supra note 11, at 36. 13. Id Antebellum or dual federalism recognizes the separate and independent existence of states within the governmental system. On the other hand, national federalism, which developed during the post-Civil War period, is premised on a theory of federal supremacy. See National League of Cities v. Usery, 426 U.S. 833, 842, 844 (1976) noted in 18 B.C. INDUS. & COM. L. REV. 736 (1977); Baker, Federalism and the Eleventh Amendment, 48 U. OF COLO. L. REV. 139 (1977). For a short explanation of the concept of federalism, see P. CAROSELL, QUEST FOR ORDERED LIBERTY 12 (1969) [hereinafter cited as CAROSELL]. 14. LIEN, supra note 11, at 36. THE BLACK LAW JOURNAL 213 ery and to protect the newly freed Blacks against state aggressions.' 5 Repre- sentative John Bingham from Ohio drafted and introduced section one of the newly proposed fourteenth amendment. The originally proposed draft, as reported to the House and Senate by the Joint Committee on Reconstruc- tion," provided that "Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privi- leges and immunities of citizens in the several States, and to all persons in several States equal protection in the rights of life, liberty, and prop- the 17 erty." Representative Bingham, in the first session of the 39th Congress, ex- plained that the proposed amendment was intended to establish greater con- gressional powers to enforce the Bill of Rights against the states.' 8 He felt that the new legislation would extend constitutional protection to "the privi- leges and immunities of all citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."' 9 Other members of the 39th Congress shared the sentiments of Repre- sentative Bingham concerning the proposed amendment's effective proscrip- tion of state infringement of certain enumerated and unenumerated rights. For example, Senator Jacob Howard of Michigan, a member of the Com- mittee on Reconstruction, quoted extensively from the opinion of Circuit Judge Washington in Coifield v. Coryell2 while defining the intended scope of the fourteenth amendment in the Senate.2' In Corfeld, Judge Washing- ton described the privileges and immunities of citizens in the several states mentioned in article IV, §2 of the Constitution as: those privileges and immunities which are, in their nature, fundamental; which belong of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several [S]tates which compose this Union,22 from the time of their becoming free, independent, and sovereign. To the foregoing, Senator Howard added the first eight amendments to the federal Constitution. He further explained that "the great object of the first . section of this Amendment is . to restrain the power of the States and23 compel them at all times to respect these great fundamental guarantees. Senator Luke Poland of Vermont understood the new privileges and immunities clause to be a reaffirmation of the traditional privileges and im- munities referred to in article IV.