2011 Articles

Privileges or Immunities

Hamburger, Philip

What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? This article examines a much wider range of evidence than the debates from the late 1860s, and it thereby recognizes that those debates discussed an idea that was already widely familiar. On the other hand, rather than assume that all pre- 1868 discussions of privileges and immunities matter for understanding the Fourteenth Amendment's Privileges or Immunities Clause, it focuses on the line of discussion that led directly to the adoption of this clause. The privileges and immunities of citizens of the United States were discussed in different contexts, in different ways, and with different meanings, and it is therefore essential to focus on the genealogy and meaning of the specific ideas that actually led to the Privileges or Immunities Clause.