Government by Judiciary

3. The "Privileges or Immunities of a Citizen of the United States"

Judiciary_051-100.indd 7 5/7/11 1:02 PM 3 The "Privileges or Immunities of a Citizen ofthe United States" NARROW as was the protection afforded blacks by the "privileges or immunities" clause, it was at least designed to shield them from violence and oppression. Even that limited goal was soon aborted when the Supreme Court divorced the rights of "a citizen ofthe United States" from the freedom from the discrimination proscribed by the Amendment . Consequently, the provision has become the all-but-forgotten clause of the Constitution.1 In the Slaughter-House Cases the Supreme Court grounded this view in part on the differentiation between the declaration in the first sentence of§ 1 that "all persons born or naturalized in the United States . .. are citizens ofthe United States and ofthe State wherein they reside" and the second-sentence provision that no State "shall abridge the privileges or immunities of a citizen of the United States." From this Justice Miller deduced that a "citizenship of the United States and a citizenship of a State . . . are distinct from each other," and that§ 1 secured only the privileges ofa "citizen ofthe United States."2 So meager was his catalog ofthose privileges as to moveJustice Field to exclaim that if this was all the privileges or immunities clause r. Colgate v. Harvey, 296 U.S. 404, 443 (1935), Justice Stone dissenting. D. 0 . McGovney showed that a goodly number ofJustice Miller's "national" privileges (infra note 3) can be enforced under some specific, direct constitutional grant. "Privileges and Immunities Clause, Fourteenth Amendment," 4 Iowa L. Bull. 219, 22 3 (1918). Hence, as Stanley Morrison remarked, "the effect of the decision was to make the privileges and immunities clause practically a dead letter." "Does the Fourteenth Amendment Incorporate the Bill of Rights?" 2 Stan. L. Rev. 140, 144 (1949). The clause has received little scholarly attention. 2. 83 U.S. (16 Wall.) 36, 74 (1872). 57 Judiciary_051-100.indd 8 5/7/11 1:02 PM s8 GOVERNMENT BY JUDICIARY accomplished, "it was a vain and idle enactment."3 Slaughter-House was a five-to-four decision, and Field was joined by Chief]ustice Chase and Justices Bradley and Swayne in an opinion that took more accurate account of the framers' intention than did that of Miller. Preliminarily it will be useful to pull together a few strands that tie the privileges or immunities of § I to the specific enumeration of the Civil Rights Act of I866. There is first the correspondence to the Civil Rights Bill's "civil rights and immunities," "privileges" being narrower than "civil rights," which had been deleted at Bingham's insistence.4 Second , Chairman Trumbull explained that the Bill had been patterned on the "privileges and immunities" ofArticle rv, § 2, and its construction by Justice Washington. Third, in introducing the prototype of§ I, Bingham said that the "privileges or immunities" had been drawn from Article IV; fourth, Senator Howard similarly referred back to the Article.5 Speaking after Howard, Senator Luke P. Poland stated that§ I "secures nothing beyond what was intended by" the original privileges and immunities provision.6 More important is the all but universal identification of §I with the Civil Rights Act. Why, then, were not the terms of the Act incorporated bodily in § I? Constitutional drafting calls for the utmost compression, avoidance of the prolixity of a code;7 "the specific and exclusive enumeration ofrights in the Act," as Bickel remarked, presumably was considered "inappropriate in a constitutional provision."8 3· ld. 96. Among the rights Justice Miller enumerated were the right to come to the seat of government, to assert claims against it, to have access to its seaports, courts, and offices, to have protection abroad, to assemble and petition, to use navigable waters, to become a citizen of another State by residence. Id. 79· It is anomalous that a "citizen of the United States" is limited to these scanty rights whereas as a "citizen of a State" he may continue to invoke in a sister State the broader rights secured to him by Article :rv, §2. Chambers v. Baltimore & Ohio R.R., 207 U.S. I42, I48 (I907); Blake v. McClung, 172 U.S. 239, 254 (r898). 4·Infra Chapter 7 at notes I I-I 6. 5· Supra Chapter 2 at notes 6, 9, 32, 33; Globe 2765. 6. Globe 2961. 7· Cf. M'Culloch v. Maryland, I7 U.S. (4 Wheat.) 3I6, 407 (I8I9). In the First Congress , Abraham Baldwin, a...