Michael Ramsey and Will Baude recently discussed on this blog what Justice Scalia thought about the idea of incorporation of the Bill of Rights via the Privileges or Immunities Clause of the Fourteenth Amendment, and Professor Baude mentioned that Scalia said in 2009 that the idea is probably wrong as an original matter. But people can change their minds in response to more convincing arguments, and I’m a case in point.
For at least a decade, I had been convinced that the Privileges or Immunities Clause does automatically incorporate provisions in the Bill of Rights vis à vis the states, at least as to the so-called "fundamental" provisions of the Bill of Rights. But this month, I became a lot less sure about it, and now feel that that view may very well be too broad and too simplistic. U.S. Senator Reverdy Johnson served on the committee that drafted the Fourteenth Amendment, and he seemed pretty sure what it meant, except for this particular clause about which he said: “I do not understand what will be the effect of that.” I sympathize.
A main feature of the Privileges or Immunities Clause was very probably to incorporate Bill of Rights provisions against the states, but (as I now suspect) only so as to protect U.S. citizens when they travel to other states. Congress realized that by merely buttressing the Comity Clause (which the Privileges or Immunities Clause accomplished in combination with Section Five), there was still the risk that states might try to cancel various guarantees that those states had made to their own citizens, especially once those states were required to deem African-Americans to be citizens—and if states were ever to do that then the Comity Clause would no longer ensure that citizens from out of state would get even minimal guarantees like free speech from the states they visit. So, as I now understand it, the Privileges or Immunities Clause made sure that the Bill of Rights would protect interstate travelers vis à vis visited states even if those states want to reduce the privileges and immunities of their own citizens. The Privileges or Immunities Clause thus protects citizens of the United States, as distinguished from protecting citizens of the states where the clause is operating.
And here’s where the matter gets more complex. According to an interpretation of the Equal Protection Clause (EPC) that I recently wrote about and subscribe to, the EPC can extend Bill of Rights limitations upon a state so as to protect in-state residents equally with visitors from out-of-state, provided that Congress allows it. That sort of substantive congressional role under the Equal Protection Clause died off soon after the Fourteenth Amendment was adopted, but that congressional role existed as an original matter, it was discussed in the Senate prior to ratification, and it persists in the text of the EPC. Without that congressional role, it would not make sense for the Privileges or Immunities Clause to be extended via the EPC, given that the Privileges or Immunities Clause could have been written in the first place to automatically give Bill of Rights protection directly to everyone within a state (vis à vis that state government).
As time allows, I hope to do some further research about this, and perhaps put together an article about it (or a book).
CORRECTION (May 2018): I was premature to suggest in this blog post that the Constitution allows interstate travelers to enjoy greater privileges or immunities in a visited state than are enjoyed in that state by its own citizens. Of course, it is well-known that the Comity Clause prevents discrimination against U.S. citizens visiting from out of state, but I have learned that it probably prevents discrimination in favor as well. After all, the Comity Clause refers to “citizens of the several states” rather than referring to “citizens of the other states.” It’s unlikely that the Fourteenth Amendment was meant to weaken or amend the Comity Clause, so I’d like to retract this blog post, in view of the precise wording of the Comity Clause. It’s noteworthy that a preliminary version of the Comity Clause, proposed by John Dickinson on July 12, 1776, did refer to the “other” colonies instead of the “several” colonies; the framers probably changed that particular word to avoid implying a national standard for privileges or immunities, but secondarily that change apparently also prevented citizenship-based discrimination in favor of out-of-state citizens. See generally Robert Natelson, The Original Meaning of the Privileges and Immunities Clause, Georgia Law Review, p. 1173 (2009).
Posted at 10:07 AM