The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art

Kurt T. Lash University of Illinois College of Law

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Constitutional scholars generally believe that the majority of the Supreme Court in The Slaughterhouse Cases erred in their narrow construction of the Privileges or Immunities Clause. Justice Samuel Miller’s attempt to distinguish the privileges and immunities of Article IV from the privileges or immunities of Section One is particularly vilified as a wholly unjustified interpretation of the Privileges or Immunities Clause.  What has gone unnoticed in contemporary scholarship, however, is a substantial body of historical evidence which indicates that Miller’s distinction was well-rooted in antebellum jurisprudence and anti-slavery Republican thought.  The first in a series of essays on the historical roots of the Privileges or Immunities Clause, this article considers the use of the terms “privileges” and “immunities” in the period between the Founding and the Civil War. 

 
I.
“Privileges” and “Immunities” in Antebellum America

The terms “privileges” and “immunities” evolved alongside the terms “rights” and “liberties,” and were put to the same varied use.  Throughout the late eighteenth and early nineteenth centuries, one finds countless examples of the terms “rights,” “advantages,” “liberties,” “privileges,” and “immunities” used interchangeably, and often at the same time. According to the 1765 Resolves of the Virginia House of Burgesses, for example, colonists were entitled to “all the Liberties, Privileges, Franchises, and Immunities, that have at any Time been held, enjoyed, and possessed, by the people of Great Britain,” and “all Liberties, Privileges, and Immunities . . . as if they had been abiding and born within the Realm of England.”1 According to the Maryland General Court in 1797, the terms “[p]rivilege and immunity are synonymous, or nearly so.”2 Dictionaries of the time also equated the terms.3  As far as their meaning is concerned, the most cursory review of the historical sources shows that the individual terms “privileges” and “immunities” were associated with everything from individual rights to corporate powers—indeed, the range of use is so broad that it is impossible to generalize from any particular appearance of either term.

 
II.
The Pairing of Privileges and Immunities

When the terms “privileges” or “immunities” were paired as part of a larger legal phrase, however, a more focused meaning begins to emerge.  For example, early American legal sources tended to use the paired terms “privileges and immunities” to mean a set of specially conferred rights, or “peculiar advantages and exemptions.”4 Antebellum legal documents, court cases, newspaper articles, and treatises repeatedly placed adjectives like “special,”5 “peculiar,”6 “exclusive,”7 and “particular” 8 in front of the paired terms “privileges and immunities” in order to highlight the unique nature of such conferred rights.  These “peculiar” rights might include natural rights or any other variety and combination of conferred liberties.  The paired terms did not refer to a defined set of rights, but rather indicated the existence of a unique set of liberties or advantages, the content of which differed depending on the context and the group at issue.

 
III.
“Privileges and Immunities of Citizens in the States”

Article IV provides an example of how the individual terms “privileges” and “immunities” took on a particular meaning when embedded in a broader legal phrase.  Known as the Comity Clause, Article IV Section 2 declares, “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”9  Today, the most well known antebellum decision regarding the Comity Clause is Corfield v. Coryell.  Decades before Corfield, however, state courts had established a consensus understanding of the Clause that would remain stable for the remainder of the nineteenth century.  Cases like Campbell v. Morris10 and Livingston v. Van Ingen11 read the Comity Clause as simply providing sojourning citizens equal access to a limited set of state-conferred rights.  Legal commentators of the day, such as St. George Tucker12 and Chancellor James Kent adopted the same reading.13

When Justice Bushrod Washington decided Corfield he followed the same approach: visiting citizens from other states must be granted equal access to a limited set of rights.  According to Justice Washington, this limited set of rights involved only “fundamental” rights traditionally protected by the states—a set of state-conferred rights that did not include the right of out of state citizens to abscond with New Jersey oysters. Justice Washington’s decision was not controversial at the time; for decades, Corfield was cited as simply one of many decisions limiting the scope of Article IV privileges and immunities to a limited set of state-conferred rights.  Later antebellum judicial opinions that cited Corfield treated the case as following the same reasoning as Campbell and Livingston. In fact, the vast majority of antebellum cases discussing Article IV privileges and immunities between the Founding and the Civil War read the Comity Clause as referring to a limited set of state-conferred rights.  This remarkably stable reading of the Comity Clause was unaffected by the debates over slavery, with high profile examples occurring immediately before and immediately after the Civil War.  Although the historical record is not completely unanimous, cases like Campbell, Livingston and Corfield were the most cited antebellum discussions of the Comity Clause, and their reasoning dominated judicial and scholarly discussion of Article IV.

 
IV.
“The Rights, Advantages, and Immunities of United States Citizens”: Article III of the Louisiana Cession Act

Unlike the state-conferred privileges and immunities of Article IV, the privileges and immunities of national citizenship were linked to federal sources of law.  Discussions of federal rights were most often discussed in the context of United States treaties that promised the inhabitants of newly acquired territory that, once they were fully admitted into the Union, they would enjoy all of the privileges and immunities of United States citizens.  The Treaty of Purchase Between the United States and the French Republic of 1803 (Louisiana Cession Act), for example, presents one of the earliest and most consistently referred to examples of national rights in antebellum America.  According to Article III of the Act:

The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess.14

Newspapers described the efforts that resulted in Article III as an attempt to provide the inhabitants of the territory “all the immunities & privileges of citizens of the United States.”15  According to members of Congress, Article III provided for “the privileges of citizens of the United States,”16 and later political tracts explained that the phrase “rights, advantages, and immunities” in the Louisiana Cession Act “undoubtedly means those privileges that are common to all the citizens of this republic.”17  The language of Article III of the Cession Act adopted the common language of international treaties, and it clearly influenced later American treaties involving territorial cession.

One of the most extensive antebellum discussions of the Louisiana Cession Act and the privileges and immunities of United States citizens occurred during the debates over the admission of Missouri and whether to ban slavery in the state as a condition of admission. During these debates, the opponents and proponents of slavery traced out the positions that dominated the increasingly bitter sectional debate over the next four decades.  Because Missouri had been carved out of the original Louisiana grant, slave owners argued that the Cession Act protected their right as citizens of the United States to carry slaves—their “property”—into the new state.  In response, free state advocates argued that the rights protected under Article III of the Louisiana Cession Act were federal rights as opposed to state-conferred rights like slavery.  Article III of the Cession Act, wrote Daniel Webster, protected only federal rights and “cannot be referred to rights, advantages and immunities derived exclusively from the State governments, for these do not depend on the federal Constitution.”18  Writing to the people of Illinois, the pamphleteer Aristides asked, “if it were possible to consider slavery as a right, an advantage, or an immunity, with what propriety could it be classed among the rights, advantages, and immunities of citizens of the United States, when more than one half of those citizens do not enjoy this pretended right, advantage, or immunity?”19 According to a report of the abolitionist Delaware Society, “[i]n the character of citizens of the United States, as members of the federal compact, slaves cannot be held.  They can be held only by citizens of some particular States, deriving their power solely from the State government.  On this point of distinction between citizens of the United States, and citizens of particular States, your committee can perceive no ground for contrariety of opinion.”20

The basic approach of the free-state advocates was to distinguish state-conferred rights from federal rights, for only the latter was protected under the Louisiana Cession Act.  “Any citizen who enjoys a right which another citizen in the United States does not enjoy,” argued New Hampshire Senator David Morill, “acquires that right from some other source than the constitution of the United States.”21 “If it were the right of a citizen of the United States, as such, to hold [slaves],” wrote “Philadelphian” Robert Walsh, “then they might be legally held in New York or Pennsylvania, as Georgia; since a federal right could not be impaired by the laws of any member of the confederacy.”22 According to Joseph Blunt, writing under the pseudonym Marcus, Article III of the Cession Act referred only to “those privileges that are common to all the citizens of this republic, not those depending upon state laws.”23  Finally, in his Memorial to Congress, Daniel Webster explained that:

[t]he rights, advantages and immunities here spoken of [in Article III] must, from the very force of the terms of the clause, be such as are recognized or communicated by the Constitution of the United States; such as are common to all citizens, and are uniform throughout the United States.24

Both sides in the Missouri debate distinguished the national rights and immunities protected under the Cession Act from the state-conferred rights, privileges, and immunities protected under the Comity Clause of Article IV.  According to Daniel Webster’s Memorial, Article IV only “applies to the case of the removal of a citizen of one State to another State; and in such a case it secures to the migrating citizen all the privileges and immunities of citizens in the State to which he removes.”25  The alternative, argued Webster, would be a disaster.  If Article IV “gives to the citizens of each State all the privileges and immunities of the citizens of every other State, at the same time and under all circumstances,” then slave-holding states would be able to force slavery into every state in the Union.26 Webster’s Memorial is just one example of an antebellum distinction between Article IV privileges and immunities of citizens in the several states and the privileges and immunities of citizens of the United States.  It is, however, an especially potent one. Daniel Webster’s Memorial was republished in 1854 as part of a pamphlet discussing the Nebraska Question.27  It was published again in 1857 as part of a collection of famous American speeches.28 In the Thirty-ninth Congress, John Bingham repeatedly and expressly relied upon the constitutional and political theory of Daniel Webster—Bingham’s self-professed hero- in explaining and defending Section One of the Fourteenth Amendment.

 
V.
Conclusion

The second sentence of Section One announces that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”29  Countless scholars have poured over the debates of the Thirty-Ninth Congress seeking clues to what the framers believed they were doing when they added this language to the federal Constitution.  Most have concluded that the Republican members of the Reconstruction Congress sought to nationalize the common law state-conferred rights of Article IV. Mention of “privileges and immunities” in both Article IV and Section One has been enough for some to claim that the text of Section One itself explicitly establishes a link between the Privileges and Immunities Clause and the Privileges or Immunities Clause.  Justice Miller’s failure, or refusal, to grasp this seemingly obvious textual link seems to justify treating his opinion as among the worst ever produced by the Supreme Court and as one of the Court’s precedents most deserving of being overruled.  Certainly a host of constitutional scholars have long argued this is the case.

The historical record, however, calls into question this long assumed flaw in Slaughterhouse.  The evidence briefly sketched in this essay and presented in full in the accompanying article appears to support Justice Miller’s argument that Article IV and Section One protected two entirely different sets of privileges and immunities.  As of Reconstruction, the jurisprudence of Article IV was remarkably stable and reflected a broadly held consensus that the Clause protected a limited set of state-conferred rights. The privileges and immunities of citizens of the United States had stable jurisprudential roots every bit as deep as Article IV.  Beginning with the Louisiana Cession Act of 1803, the phrase “rights, advantages, and immunities of citizens of the United States” was understood to refer to the federal privileges and immunities of citizens of the United States—rights conferred by the Constitution itself and “common to all” who shared such citizenship.  More, it was the advocates of freedom, men like Rufus King and Daniel Webster, who insisted that these federal rights were wholly separate and distinct from the state-conferred rights of Article IV.

It appears then that Justice Miller’s distinction between Article IV Privileges and Immunities and Section One Privileges or Immunities reflects a distinction clearly identifiable in antebellum jurisprudence.  This fact has not been recognized in prior scholarship on The Slaughterhouse Cases or in regard to the original understanding of the Fourteenth Amendment.  At the very least, such evidence suggests a need for renewed investigation of the debates of the Thirty-Ninth Congress in order to determine whether the distinction played any role in the drafting of Section One and whether the distinction informed public understanding of the Privileges or Immunities Clause. 

I will explore these particular issues in a subsequent article.  For now, it seems appropriate to close with a quote from at least one member of the Thirty-Ninth Congress who embraced the antebellum distinction between the state-conferred rights of Article IV and the federally-conferred rights of citizens of the United States. In 1871, John Bingham explained to the House of Representatives his understanding of the Privileges or Immunities Clause—a provision that he had drafted himself:

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.

. . . .

Mr. Speaker, that decision in the fourth of Washington’s Circuit Court Reports [Corfield], to which my learned colleague . . . has referred is only a construction of the second section, fourth article of the original Constitution, to wit, “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” In that case the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own.

. . . .

Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?30

Bingham could not have been clearer: The Privileges or Immunities Clause of Section One protected “other and different privileges and immunities” than those protected under Article IV.  The rights of the Comity Clause involved rights that states had bestowed upon their own citizens.  The rights of the Privileges or Immunities Clause, on the other hand, involved rights listed in the federal Constitution, such as those found in the first eight articles of Amendment—the Bill of Rights. Although the Comity Clause and the Privileges or Immunities Clause use the common terms “privileges” and “immunities,” Bingham believed that these terms took on different meanings and referred to different sets of rights, depending on their use in a broader legal term of art.  If the public understanding of the Privileges or Immunities Clause tracked Bingham’s understanding, then scholars have been wrong to try and equate the Clause with Justice Washington’s list of “fundamental” state-conferred rights.  Instead, the original understanding of the Clause may have been quite close to that proposed decades ago by Justice Hugo Black—the Privileges or Immunities of the citizens of the United States must be found within the four corners of the Constitution, and not in the unenumerated rights of state common law.

Acknowledgments:

Copyright © 2010 Georgetown Law Journal
Kurt T. Lash is Alumni Distinguished Professor of Law, University of Illinois College of Law

  1. Journals of the House of Burgesses of Virginia, 1761–1765, at 360 (John Pendleton Kennedy ed., 1907).
  2. Campbell v. Morris, 3 H. & McH. 535, 553 (Md. 1797).
  3. See, e.g., William Perry, The Royal Standard English Dictionary 411, 442 (1st Am. ed., Worcester, Mass., Thomas 1788) (Early Am. Imprints, Series 1, no. 21385) (defining “Right” as a “just claim; justice; interest; prerogative, privilege,” and “Privilege” as a “publick right; peculiar advantage”).
  4. Id.
  5. See, e.g., J.V. Smith, Ohio Constitutional Convention, Ohio Daily Statesman, Feb. 14, 1851, at 2.
  6. See Douglass’ Adm’r v. Stevens, 2 Del. Cas. 489, 501 (1819) (“Privilege signifies a peculiar advantage, exemption, immunity. Immunity signifies exemption, privilege.”).
  7. In 1841, The Emancipator called for “{e}qual rights, equal and exact justice to all men, and no exclusive privileges or immunities.” The Necessity of a Liberty Party, The Emancipator (N.Y.), Nov. 11, 1841, at 112.
  8. See Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3,230) (discussing the “particular privileges and immunities” protected under Article IV).
  9. U.S. Const., art. IV, § 2, cl. 1.
  10. 3 H & McH. 535 (Md. 1797).
  11. 9 Johns. 507, 561 (N.Y. 1812) (opinion of Yates, J.).
  12. See Hadfield v. Jameson, 16 Va. (2 Munf.) 53, 56 (1811).
  13. See 2 James Kent, Commentaries on American Law pt. 4, at 35 (7th ed., N.Y., Kent 1851).
  14. Treaty of Purchase Between the United States and the French Republic, art. III, U.S.-Fr., Apr. 30, 1803, 8 Stat. 200.  
  15. Louisiana Memorial, E. Argus (Portland, Me.), Nov. 8, 1804, at 2.
  16. See Debates in the House of Representatives, on the Bills for Carrying into Effect the Louisiana Treaty 60 (Phila., Palmer Bros. 1804) (Early Am. Imprints, Series 2, no. 7492) (providing remarks of Representative Gaylord Griswold).
  17. Marcus, An Examination of the Expediency and Constitutionality of Prohibiting Slavery in the State of Missouri 17 (N.Y., Wilet & Co. 1819).
  18. Daniel Webster et al., A Memorial to the Congress of the United States, on the Subject of Restraining the Increase of Slavery in New States To Be Admitted into the Union 15 (Boston, Phelps 1819) (Early Am. Imprints, Series 2, no. 47390).
  19. Aristides, To the People of Illinois, Edwardsville Spectator (Ill.), June 5, 1819, at 6.
  20. Report of a Committee of the Delaware Society (Sept. 29, 1819), in Minutes of the Sixteenth American Convention for Promoting the Abolition of Slavery, and Improving the Condition of the African Race 18, 25 (Phila., Fry 1819) (Early Am. Imprints, Series 2, no. 46985).
  21. David Morill, Remarks of Mr. Morill in the Senate of the United States on the Missouri Question (Jan. 17, 1820), in Hillsboro’ Telegraph (Amherst, N.H.), Mar. 4, 1820, at 1.
  22. A Philadelphian, Free Remarks on the Spirit of the Federal Constitution, the Practice of the Federal Government, and the Obligations of the Union Respecting the Exclusion of Slavery from the Territories and New States 49 (Phila., Finley 1819).
  23. Marcus, supra note 18, at 17–18.
  24. Webster et al., supra note 20, at 15.
  25. Id. at 16.
  26. Id.
  27. See Daniel Webster et al., A Memorial to the Congress of the United States, on the Subject of Restraining the Increase of Slavery in New States To Be Admitted into the Union (1819), reprinted in The Nebraska Question 9, 9–12 (N.Y., Redfield 1854).
  28. See Daniel Webster et al., A Memorial to the Congress of the United States, on the Subject of Restraining the Increase of Slavery in New States To Be Admitted into the Union (1819), reprinted in The Political Text-Book, or Encyclopedia 601, 601–04 (M.W. Cluskey e.d., Wash., D.C., Wendell 1857).
  29. U.S. Const. amend. XIV, § 1 (emphasis added).
  30. Cong. Globe, 42d Cong., 1st Sess. app. at 84 (1871) (emphasis added).

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