What is the Privileges or Immunities Clause?

The Privileges or Immunities Clause is the second substantive guarantee of Section 1 of the 14th Amendment, ratified July 9, 1868: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is one of three parallel guarantees in Section 1 -- alongside the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause -- all of which apply by their terms only to state action, not to the federal government. The clause is distinct from the Privileges and Immunities Clause of Article IV, Section 2, which provides that the citizens of each state are entitled to all privileges and immunities of citizens in the several states; that earlier clause is a comity provision requiring states to treat visiting citizens of other states on equal terms with their own citizens in certain respects and has never been read to prohibit a state from favoring its own residents in all matters. The 14th Amendment clause was drafted by Representative John Bingham of Ohio and Senator Jacob Howard of Michigan to constitutionalize the Civil Rights Act of 1866 and to ensure that the fundamental rights of national citizenship -- including freedom from discriminatory state laws -- could not be stripped away by ordinary congressional majorities or by state action. Within five years of ratification, the Supreme Court delivered an interpretation that would leave the clause largely dormant for more than a century.

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court's first major interpretation of the 14th Amendment, settled the clause's initial scope in a 5-4 decision written by Justice Samuel Miller. The Louisiana legislature had granted a 25-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company, requiring all New Orleans slaughterhouse operations to be conducted at the company's facility. Independent butchers challenged the monopoly under the Privileges or Immunities Clause, arguing that the right to pursue a lawful occupation was a privilege of United States citizenship that Louisiana could not abridge. Justice Miller rejected the argument by drawing a distinction between two categories of rights: the privileges and immunities of national citizenship, which owe their existence to the federal government and which the clause protects against state abridgment, and the antecedent civil rights of state citizenship, which existed before the Constitution and belong to individuals as members of their respective states. The rights of national citizenship Miller identified were a limited set: the right of access to federal government seats and offices, protection on the high seas and in foreign countries, the right to travel to Washington as the seat of government, use of the navigable waters of the United States, and protection against violence while in federal custody. The right to butcher animals for a living was a privilege of state citizenship, not national citizenship, and the clause therefore did not shield it from state regulation. Justice Field wrote in dissent, joined by Chief Justice Chase and Justices Swayne and Bradley, arguing that the clause was designed to protect the fundamental rights common to all free citizens -- including the right to pursue a lawful occupation, to acquire property, and to enjoy personal security -- against state interference. Field's dissent foreshadowed a reading of the clause that would have made it a sweeping constraint on state economic regulation. The Slaughter-House majority's narrow reading prevailed, and for the next century the clause played almost no role in constitutional adjudication; most rights protection flowed through the Due Process Clause and Equal Protection Clause instead.

Saenz v. Roe, 526 U.S. 489 (1999), gave the Privileges or Immunities Clause its most significant application since Slaughter-House. California's welfare statute conditioned new state residents' eligibility for Aid to Families with Dependent Children on a one-year durational-residency requirement, limiting their benefits during that period to what they would have received in their prior state. Justice Stevens, writing for a 7-2 majority, identified three distinct components of the right to travel: first, the right of a citizen of one state to enter and leave another state; second, the right to be treated as a welcome visitor while temporarily present in another state, protected by the Article IV Privileges and Immunities Clause; third, the right of a new resident, once established, to be treated on the same terms as other citizens of the new state. The third component, the Court held, is a privilege of national citizenship protected by the Privileges or Immunities Clause of the 14th Amendment: a citizen who moves from one state to another acquires an immediate and unconditional right to the same privileges and immunities as long-established residents. California's welfare waiting period imposed a penalty on the decision to exercise the right to travel by treating newly arrived residents as lesser citizens for one year, and the state's asserted fiscal interests did not justify that penalty. Chief Justice Rehnquist and Justice Thomas each dissented. Thomas wrote that the majority's invocation of the Privileges or Immunities Clause was historically questionable; he expressed skepticism about whether the majority had identified the clause's original meaning and warned that relying on a provision whose scope remained undefined could produce unpredictable consequences. Saenz thus applied the clause to protect what the Court characterized as the right to become a permanent, fully equal resident of a new state, but Thomas's dissent signaled a willingness to reconsider both the majority's use of the clause and Slaughter-House itself on originalist grounds.

McDonald v. City of Chicago, 561 U.S. 742 (2010), brought the Privileges or Immunities Clause to the Court's attention through a different route. The central question was whether the Second Amendment, which the Court had held in District of Columbia v. Heller, 554 U.S. 570 (2008), to protect an individual right to keep and bear arms for self-defense, applies against state and local governments through the 14th Amendment. Justice Alito wrote for a plurality of four justices -- joined by Chief Justice Roberts and Justices Scalia and Kennedy -- that the Second Amendment is incorporated against the states through the Due Process Clause, extending the standard selective-incorporation doctrine under which most Bill of Rights provisions have been applied to the states. Justice Thomas concurred in the judgment, providing the decisive fifth vote to incorporate the Second Amendment, but wrote separately to argue that the Privileges or Immunities Clause, not the Due Process Clause, was the proper vehicle for incorporation. Thomas argued that the Slaughter-House Cases were wrongly decided: the congressional framers of the 14th Amendment, particularly Bingham and Howard, understood the Privileges or Immunities Clause to codify the rights listed in the Civil Rights Act of 1866 and the natural rights recognized in antebellum free-state constitutions, including the right to keep and bear arms for personal defense. The right to arms therefore was a privilege of national citizenship protected against state abridgment. Thomas further argued that substantive due process incorporation rested on a methodological foundation that departed from the text and history of the Due Process Clause and that the Privileges or Immunities Clause offered a more historically grounded basis for the same protective result. No other justice joined Thomas's concurrence; the Alito plurality's due-process incorporation carried the day on the merits. Thomas's opinion nonetheless represents the most sustained recent challenge to Slaughter-House from within the Court and has generated substantial academic commentary on the historical and originalist case for restoring the Privileges or Immunities Clause to the central role its framers intended.

For the 2028 election, the Privileges or Immunities Clause matters primarily because the continued validity of the Slaughter-House Cases' narrow construction may be tested by a future Supreme Court. The clause is the 14th Amendment's third and least-developed substantive guarantee: Saenz v. Roe (1999) applied it to one aspect of the right to travel, and Justice Thomas's McDonald concurrence (2010) argued it should be the basis for incorporating the Second Amendment, but the Slaughter-House framework remains controlling for all other applications. If that framework were overruled or substantially narrowed in a future case, the clause could become an independent basis for protecting economic liberties, unenumerated natural rights, and Bill of Rights provisions against state abridgment -- potentially providing a more textually secure foundation than the substantive due process doctrine that Justice Thomas's Dobbs concurrence (2022) called into question for rights such as contraception (Griswold), intimate conduct (Lawrence), and same-sex marriage (Obergefell). Whether such a development would be beneficial or appropriate depends on contested questions about the original meaning of 'privileges or immunities of citizens of the United States,' the relationship between national and state citizenship, and the appropriate role of unenumerated rights in constitutional adjudication. The 2028 winner's nominations to the federal bench -- including any Supreme Court vacancies arising during the term beginning January 20, 2029 -- will determine whether originalist justices open to revisiting Slaughter-House come to command a majority and whether the Privileges or Immunities Clause emerges from its 150-year dormancy as an operative constitutional guarantee.