Note: This is an educational course, not legal advice.
After Barron, the Bill of Rights bound only the federal government. In 1868 the Fourteenth Amendment added new limits on the states. Section 1 has four clauses, and the first case to read them shaped constitutional law for a century.
Why it works
Why did a 5 to 4 ruling about butchers matter so much? Because the majority feared that a broad reading would make the Supreme Court the reviewer of every state law touching ordinary rights, a "perpetual censor." By reading the clause narrowly, it left that clause almost empty. When later Courts wanted to protect rights against the states, they turned to the Due Process Clause instead. Scholars of many views have criticized the narrow reading, and Justice Thomas has urged a return to the clause in his opinions. Saenz v. Roe (1999) is the rare modern case resting on it: it protected a new resident's right to be treated like other citizens of the state.
| Clause | Protects | Against |
|---|---|---|
| Privileges and Immunities (Article IV, Section 2) | citizens of other states from discrimination (a state may not favor its own citizens without good reason) | each state, toward out-of-staters |
| Privileges or Immunities (Fourteenth Amendment, Section 1) | the rights of national citizenship (as read in 1873) | each state, toward its own and all U.S. citizens |
Key idea
The Slaughter-House Cases (1873), 5 to 4, held that the Fourteenth Amendment's Privileges or Immunities Clause protects only the rights of national citizenship. That left the clause largely unused; later rights cases went through Due Process and Equal Protection instead.
Worked example: Which clause?
A state charges out-of-state residents ten times more than residents for a commercial fishing license. Which privileges clause is the natural claim?
- The law treats citizens of other states worse than the state's own citizens.
- That is the concern of Article IV's Privileges and Immunities Clause (see Con Law I).
- The Fourteenth Amendment's clause concerns the rights of national citizenship.
Answer: Article IV, Section 2: Privileges and Immunities.
Worked example: A new resident
A state pays families who moved in within the last year only the welfare benefits they would have received in their former state. Which case and clause?
- The law treats new citizens of the state worse than older residents.
- Saenz v. Roe (1999) held that this violates the right to travel, specifically the right of a new resident to be treated like other citizens of the state.
- The Court placed that right in the Fourteenth Amendment's Privileges or Immunities Clause.
Answer: Saenz v. Roe; the Fourteenth Amendment's Privileges or Immunities Clause.
Common mistake
Mixing up the two clauses. Article IV has "Privileges and Immunities" and protects people from other states. The Fourteenth Amendment has "privileges or immunities of citizens of the United States." A quick check: if the law discriminates against out-of-staters, think Article IV; if the claim is about a right of U.S. citizenship, think the Fourteenth Amendment.