Rediscovering the Privileges or Immunities Clause

Posted on Categories Constitutional Interpretation, Legal History, Legal Scholarship

The Privileges or Immunities Clause of the Fourteenth Amendment has been largely dormant since the Slaughterhouse Cases of 1873.  Courts generally treat the Clause as adding little or nothing to the Fourteenth Amendment’s two better-known provisions, the Equal Protection and Due Process Clauses.  However, Bruce Boyden argues  in a new paper on SSRN that the Clause actually does have a distinctive role to play in constitutional doctrine, specifically, by regulating conflicts between states over competing “status regimes.”

As Bruce explains, America’s prototypical “status regime conflict” related to the rights of northern blacks who traveled to pro-slavery states prior to the Civil War.  Much litigation resulted from the refusal of some southern and western states to recognize the rights of such travelers.  Based on a review of the debates arising from these antebellum cases and the history surrounding the adoption of the Privileges or Immunities Clause, Bruce argues that the Clause was intended to ensure that interstate travelers could retain the legal status they enjoyed in their home states notwithstanding entrenched national divisions over legal status questions.

For Bruce, the ongoing significance of this history is that the Privileges or Immunities Clause should continue to be seen as a device for resolving status regime conflicts. 

Bruce writes:

The Privileges or Immunities Clause offers a structural remedy to the problem, based on how similar the conflict is to the one over black citizens prior to the Civil War.  Thus, if a status conflict between states reaches a kind of critical mass, similar to the division between states prior to the Civil War, the Privileges or Immunities Clause would be triggered as to that dispute; it would require states to classify travelers for purposes of making legal status determinations as they would be classified by their home states.

As Bruce notes, it is possible that the sort of status regime conflict that he thinks should trigger Privileges or Immunities Clause protections will emerge in the next few years with respect to same-sex couples who travel from states that recognize same-sex marriage to states that do not.

Bruce’s article, entitled “Strategies of Containment: Status Regimes and the American Constitution,” will be published in the Alabama Law Review.

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