[Below, I originally cited the "Privileges and Immunities" Clause of the Fourteenth Amendment when actually it should be "or" as the opening quote shows. For some reason, the P&I of Art. IV was changed and a new conjunction used. Literalists might suggest some difference, but I sort of doubt it has any real effect. But, the error deserves correction all the same.]
All persons born or naturalized within the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
-- Fourteenth Amendment, Section 1.
A guest blogger (some of the regulars are starting to get tiresome) at Balkanization brought to the readers attention a recent article on the Privileges or Immunities Clause of the Fourteenth Amendment. Substantive liberty as applied to state action is generally protected in the federal courts by means of the Due Process Clause in large part because the Slaughterhouse Cases supplied a narrow reading to the former provision, if by a 5-4 margin. [The case defined them to cover those "which own their existence to the Federal government, its national character, its Constitution, or its laws," providing a more expansive list in Twining v. N.J. (1908).] But, an open-ended security to liberty still was in the air, but like a dammed river, it was secured via a different route. Namely, the Due Process Clause with an assist at times from the Equal Protection Clause.
And, so is the case today, though Saenz v. Roe recently cited P or I in regard to discriminating in the realm of benefits depending on how long you resided in the state. Justice Thomas dissented, supporting a broad understanding of the clause but not thinking it covered such benefits, but the ruling as a whole has a certain flavor -- the right to become a state citizen on an equal basis, not a general concern with rights. So, using it to guide us to a new understanding of the clause is open to doubt. Likewise, it should be noted (it wasn't in the flawed article) that Justice Scalia split from Thomas (see Troxel v. Granville) respecting the the meaning of the clause; in fact, Scalia actually joined the majority in Saenz.
But, the article is correct that the Fourteenth Amendment's text and history is on the side of a broad interpretation of the Privileges or Immunities Clause. Since critics of substantive due process often (a bit tediously) focus on text, and history also is relied upon (especially rhetorically) by others, "text and history" matters. The article provides the first clause of the Fourteenth Amendment as a united whole -- birthright federal citizenship brings with it "privileges or immunities" (rights), rights that must be secured equally, and by means of fair procedures. The tie to national citizenship underlines the necessity of federal protections, including by the courts, as compared to pre-Civil War realities. Likewise, as Justice Ginsburg has noted, equal citizenship requires such things as control of "bodily autonomy and integrity."
The path taken now is protection of "liberty" per the Due Process Clause, which has (as Justice Stevens etc. have noted) origins in the Declaration of Independence. This has various benefits. First, and the article ignores the point, this applies to all persons. Where do the millions of non-citizens look under a regime that protects that rights of "citizens" after all? Some supporters of the P or I path point, easily enough, to the Equal Protection Clause. This is an indirect means that implies that lawful aliens are in some fashion a second class group, at least, more so than focusing on "persons." Comparably, some do not use references to the "right of the people" in the Bill of Rights to apply just to citizens.* Second, "privileges and immunities" does not sound as powerful as "liberty." It sounds like something given on sufferance.
Finally, it has a long history. See, e.g., Justice Harlan's dissent in Poe v. Ullman. There is an understanding, partially correct, that use of the Due Process Clause was an answer to the evisceration of the Privileges or Immunities Clause. But, this is only part of the story. Substantive due process -- and citations of Dred Scott underline the point in a negative way -- was already in the air. There was a radical Republican understanding of the provision -- "liberty" was protected, so could not be removed without due process. What did that mean? Well, simply put, it included wrongful deprivation of natural rights. This was the point, the other way, in Dred Scott. Congress was held not to have the power to deprive slaveholders their property to bring slaves into federal territories. A clear provision (cf. the ban on the international slave trade) might do the trick.
"Due process of law" developed from a provision in the Magna Charta concerning deprivation of rights by the "law of the land." Basically, the argument here is/was that there were certain rights that were basic to freedom, rights no free nation could legitimately deny. QED, there would be no "due process" available to do so. Rights that existed even without explicit enumeration. See, the Ninth Amendment, and life before the BOR were ratified. Those who argued the BOR were redundant very well might have also noted that wrongful congressional deprivation of its liberties would not be "due process" and thus actionable in federal court. The P or I, like the BOR, provides explicit federal force to rights. This would be particularly important when previously their security was mostly left to the states, leading to wrongs like slavery.
But, and in his dissent Justice Bradley in Slaughterhouse Cases clearly referenced the fact, due process on its own could arguably carry the load. The criticism of substantive due process also have a somewhat tired air in other ways. Dred Scott and Lochner are trotted out as scare tactics. But, use of substantive due process is not the flaw in either. It was barely used in Dred Scott, which was more about a twisted view of black citizenship and the reach of the territory clause. Likewise, the basic right to property is not disputed; it is the reach of its regulation. The same applies to the right to contract (deemed wrongly infringed via a "class" legislation favoring one group of workers without legitimate health justification) at issue in Lochner.
As the article notes:
Indeed, in discussing the fundamental rights of citizenship, the framers regularly included fundamental rights – such as the right of access to courts, the right to enter into contracts and enjoy the fruits of one’s labor, the right to free movement, the right to personal security and bodily integrity, and the right to have a family and direct the upbringing of children – that have no obvious textual basis in the Bill of Rights.Lochner is used as a specter by two groups -- those who fear giving courts open-ended power to review laws generally and those who oppose them doing so in the economic realm in particular. The post-New Deal regime left the economic field largely (but not completely) to the legislative process, but provided some special protection to individual liberty of a more private sort. Justice Douglas (see Griswold; Doe v. Bolton, concurring opinion) refused to consider security of a right to privacy a matter of "substantive due process," as if the term only applied to a certain type of adjudication. On this point, Justice Stewart (see his concurrence in Roe v. Wade) is more honest. And, some security to the economic realm is important for liberty too.
Anyway, the fear of giving the courts too much power was at the heart of the majority opinion in the Slaughterhouse Cases, and citations to the P or I Clause will only help if the text/history argument convinces. It does not for the likes of Justice Scalia, just like Justice Black (who cited history to use the clause to incorporate the Bill of Rights) was not convinced it provided an open-ended security of liberty. Even if the Framers were particularly concerned with the private lives of slaves being violated or the like. The article also notes the incorporation of the Second Amendment can serve as a platform for its purposes too, since some who support that cite the clause. Well, incorporation makes sense, and the clause was used by late 19th Century sorts who tried that route.
But, we saw the dispute over history when the Court debated the Second Amendment, just as different justices interpreted the origins of the religion clause differently. This appeal to unity, thus is a bit cloudy. And, the article does not help by its somewhat selective overview. All the same, its bottom line is correct: the P or I Clause is an important aspect of the Fourteenth Amendment, one with text and history that can better be used in promotion of substantive liberty. As with using the Third Amendment to protect privacy and the supremacy of the civil over the military power, this mining of the past has force. OTOH, with reflection, I'm not sure focusing on a citizenship clause (which does have a lot to offer, including in areas like education) is such a good idea. The liberty of "persons" has a more 21st Century feel.
Overall, it's good, but not as good as it thinks.
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* Justice Thomas notes in his dissent in Saenz:
The colonists’ repeated assertions that they maintained the rights, privileges and immunities of persons “born within the realm of England” and “natural born” persons suggests that, at the time of the founding, the terms “privileges” and “immunities” (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons.
Perhaps, (per John Hart Ely, see Akhil Amar's discussion in his own Bill of Rights, which favors the equal protection approach and/or aliens as third party security to the rights of citizens), "privileges and immunities of citizenship" is a term of art that applies to the subject matter, not the recipients alone. Comparably, as Justice Kennedy noted in his separate opinion on a somewhat related subject: "the right of the people" ... "may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it."
Or, to broaden the class, legal aliens might be among "the people" involved. See, Justice Stevens opinion. This would include those whose status is open to debate. All the same, security of "persons" per the Due Process Clause has clearest breadth. One matching current sentiment.
[Update: After all, today is the anniversary of the passage of the Universal Declaration of Human Rights. This is a problem, even when the person isn't a citizen.]