Privileges or Immunities Clause (14th Amendment)

The Privileges or Immunities Clause of the Fourteenth Amendment, Section 1, provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Ratified in 1868 as part of Reconstruction, the clause was originally intended to be a primary vehicle for protecting fundamental rights against state interference.

However, in the Slaughter-House Cases (1873), the Supreme Court dramatically narrowed the clause by distinguishing between rights of national citizenship (protected) and rights of state citizenship (not protected). The Court held that fundamental civil rights such as property, contract, and livelihood were incidents of state citizenship, leaving the clause to protect only a narrow set of rights inherently tied to the federal government, such as the right to travel to the national capital, the right to federal protection on the high seas, the right to vote in federal elections, and the right to petition the federal government.

Despite periodic calls for revitalization, the clause remains largely dormant. In McDonald v. City of Chicago (2010), Justice Thomas wrote a concurrence arguing that the clause, rather than the Due Process Clause, should be the basis for incorporating the Bill of Rights against the states. In Timbs v. Indiana (2019), the Court incorporated the Excessive Fines Clause through the Due Process Clause while noting ongoing scholarly debate about the Privileges or Immunities Clause. The clause stands as one of the most underenforced provisions in constitutional law.