Restoring the Privileges or Immunities Clause

Why the 14th Amendment matters in the fight for a free society

Last week the Institute for Justice (I.J.), a public interest law firm dedicated to protecting economic and political liberty, filed a federal lawsuit on behalf of Boston entrepreneur Erroll Tyler, whose attempts to start an amphibious sightseeing business have been repeatedly thwarted by city officials who refuse to grant him a license. Under state law, the Boston police commissioner has the authority to regulate all sightseeing vehicles that either originate in the city or stop there to pick up passengers. Yet as the lawsuit notes, Tyler's operation will be based out of nearby Cambridge and his vehicles will make no stops within Boston. They will simply travel the streets like any other car, truck, or bus, making their way to Boston Harbor, where they will fall under federal jurisdiction. For its part, the city claims that a massive public works project that has had no impact on traffic for the last three years requires a "moratorium" on new sightseeing licenses.

This is a classic case of unnecessary and arbitrary regulations that violate fundamental economic rights. It's also significant because I.J. has brought suit under the Privileges or Immunities Clause of the 14th Amendment, which reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (The suit cites the amendment's Due Process and Equal Protection Clauses as well.) The Privileges or Immunities Clause, which was designed to protect substantive individual rights from state abuse, has been essentially dead since the Supreme Court's 1873 decision in The Slaughterhouse Cases, which held that it guarantees only a narrow set of national rights, such as the freedom to travel between states.

Given that I.J. has unsuccessfully raised the issue before, why try to resurrect the clause now? The answer is District of Columbia v. Heller, the Court's landmark 2008 decision holding that the Second Amendment secures an individual right to keep and bear arms and that D.C.'s gun laws violated that right. One big question Heller did not answer is whether the Second Amendment applies only to the federal government (which oversees Washington, D.C.) or to state and local governments as well. That's where the 14th Amendment comes in. Through a series of decisions, the Court has gradually "incorporated" most of the Bill of Rights, making its guarantees applicable to the states via the 14th Amendment's Due Process Clause. When the question of Second Amendment incorporation inevitably reaches the Supreme Court, the Privileges or Immunities Clause also is likely to receive some long overdue attention. Last month, I.J. filed a friend of the court brief (PDF) in the case of McDonald v. Chicago, which challenges Chicago's draconian gun control laws, providing detailed historical evidence that the Privileges or Immunities Clause "protects substantive rights from incursion by state and local governments, and [that] the right of citizens to keep and bear arms for self-defense is among the most important of those rights."

At least one prominent leftist group agrees. Last December, the Constitutional Accountability Center (CAC), a think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history," released a well-crafted, though dangerously incomplete study entitled, "The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment." This document argues that while the Privileges or Immunities Clause does safeguard gun rights from state abuse, it does not protect economic liberty.

The problem with that argument is that the 14th Amendment was written and ratified both to nationalize the Bill of Rights (along with certain unenumerated rights) and to enshrine the free labor philosophy of the anti-slavery movement, which was based on an individualistic and market-oriented form of self-ownership. The abolitionist leader and escaped former slave Frederick Douglass, in his autobiography My Bondage and My Freedom, recalled the "rapturous excitement" of his first paying job: "I was now my own master—a tremendous fact." As the historian Eric Foner has put it, "To Douglass, the wage represented not a mark of oppression but a symbol of a fair exchange, reflecting the fact that for the first time in his life he enjoyed the fruits of his labor."

Such views are central to the historical backdrop that led the Radical Republicans to draft both the Civil Rights Act of 1866 and the 14th Amendment. In each case, they sought to protect African Americans and their white allies from the depredations of the former Confederate states, including the infamous Black Codes, which curtailed property rights, liberty of contract, free speech, and the right to keep and bear arms.

Modern liberals might not like the sound of it, but the fact remains that the 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government. A fully restored Privileges or Immunities Clause would help keep the Second Amendment secure and protect entrepreneurs like Erroll Tyler. Here's hoping the Court recognizes it sooner rather than later.

Damon W. Root is an associate editor at Reason.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Best of luck, IJ, we luv ya.

  • fyodor||

    I don't understand: if IJ's operation does not meet the criteria under which state law allows Boston to regulate it, why has Boston's refusal to grant him a license stopped him? How did it become an issue?

    Also: would invoking the Priveleges and Immunities clause to stop this particular regulation effectively stop ALL regulation? If not, what's particular about THIS regulation that would invoke it? (If it's that Boston has no jurisdiction, then we're back to question 1, how did Boston manage to pre-emptively exert such unfouded jurisdittion?)

  • ||

    I don't understand: if IJ's operation does not meet the criteria under which state law allows Boston to regulate it, why has Boston's refusal to grant him a license stopped him? How did it become an issue?

    Probably he asked the question in the course of researching his new business and was told "no" - after that, hw was on the radar. It would be impossible to hide the fact that he was driving a huge amphibious vehicle through the city, he would expect to be stopped and ticketed with paying customers on board - not good for repeat biz...

    I would think regulation that doesn't violate one persons privledges in favor of anothers would be allowed...

  • KipEsquire||

    As I was reading "Gem of the Constitution" my first thought wasn't "dangerously incomplete" but rather "comically hypocritical."

    It's amazing the mental gymnastics some will engage in to suggest that Consenting Adult 1 can invite Consenting Adult 2 into his bedroom to have homosexual intercourse, but not to paint the ceiling at $3 per hour.

  • ||

    Ceilings painted, $3/hr plus tips.

  • T||

    KipEsq.,

    Whydoes that take mental gymnastics? Haven't we established that Adult 1 and Adult 2 can't contract for the homosexual intercourse at $3 an hour? What makes ceiling painting so special that they can?

  • Gilbert Martin||

    "The 14th Amendment, writes Associate Editor Damon Root, was designed and ratified to protect individual rights against abuse by the states."

    If you're going to talk about the 14th Amendment, it needs to be pointed out that it was never properly ratifed by 3/4 of the states as required by the Constitution to begin with.

  • Wicks Cherrycoke||

    I have said this before: the 14th Amendment is a double-edged sword, because it contains a Section that grants Congress the authority to "enforce" the provisions of the Amendment "through appropriate legislation." Thus, the broader the scope of the Privileges and Immunities Clause, the broader the power of Congress to regulate - which is exactly why left-leaning law professors and think-tanks have been pushing for the re-invigorating of the Privileges and Immunities Clause for years - and economic liberties are the last thing on their minds.

  • Alan Vanneman||

    Gilbert Martin is correct, of course. And the Constitution itself was enacted by "extra-constitutional," that is to say, extra-Articles of Confederational, means. Damon might have noticed that the 14th Amendment was never actually used to protect the rights of Blacks, but was used to protect the "rights" of corporations.

    Shockingly, it's public opinion, not the arbitrary meanings assigned to black marks on sheets of white paper, that rule countries.

    The fact that Damon wishes we were ruled by five old codgers appointed for life, instead of the thousands of federal, state, and local elected officials who do make our laws, for good or ill, suggests that libertarians, seeing that almost no one agrees with them, despair of democracy. But thanks for the history lesson! It wasn't all bad!

  • LarryA||

    Such views are central to the historical backdrop that led the Radical Republicans to draft both the Civil Rights Act of 1866 and the 14th Amendment.

    Isn't history interesting? Once upon a time Republicans used to be the liberal party. Now the Democrats call themselves liberal, but aren't. I want my political philosophy back.

    "liberalism" ( merriam-webster.com)

    1: the quality or state of being liberal
    2 a often capitalized : a movement in modern Protestantism emphasizing intellectual liberty and the spiritual and ethical content of Christianity b: a theory in economics emphasizing individual freedom from restraint and usually based on free competition, the self-regulating market, and the gold standard c: a political philosophy based on belief in progress, the essential goodness of the human race, and the autonomy of the individual and standing for the protection of political and civil liberties.


  • Mike DeSoto||

    Let's see the 14th Amendment be legally ratified first, and then we can discuss the implications of what it means.

  • Mike DeSoto||

    "The fact that Damon wishes we were ruled by five old codgers appointed for life, instead of the thousands of federal, state, and local elected officials who do make our laws, for good or ill, suggests that libertarians, seeing that almost no one agrees with them, despair of democracy."

    Libertarianism has always had a strain in it which rejected our republican form of government and longed for rule by "judges". The scare quotes are because they would not really function as judges in the normal sense, but more as philosopher-kings. People like Damon like to imagine that they would be libertarian philosopher-kings, although they have no way of ensuring that outcome.

  • Mike DeSoto||

    ".. that includes both economic liberty and the right to armed self-defense."

    And the poor fools who wrote it thought it was just to abolish slavery!

  • LarryA||

    ".. that includes both economic liberty and the right to armed self-defense."

    And the poor fools who wrote it thought it was just to abolish slavery!


    Actually, the two ideas are pretty much the same thing. Abolishing slavery consists of making sure people can earn money and spend it, and keep others from stealing it.

  • fashion jewelry wholesalers||

    And the poor fools who wrote it thought it was just to abolish slavery!

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