The Original Public Understanding of Privileges or Immunities

Abstract

As the idea of revitalizing the Privileges or Immunities Clause gains traction, many commentators have offered their perspective on what constitutes a privilege or immunity. Most of these perspectives suggest that the Clause was meant to incorporate the Bill of Rights against the states, and a few posit broader applications. This paper examines the contemporary perspective as evidenced by public comment, newspaper articles, and speeches made by public figures. By examining the national conversation related to passage and application of the Fourteenth Amendment, a different approach to privileges or immunities emerges, one based on citizenship rights and nondiscrimination by states among its own citizens. The public understanding of the Privileges or Immunities Clause is at once broader than mere incorporation but narrower than conceptions tied to natural rights. This paper endeavors to show what that understanding was, and how it might apply today.