James Leroy Wilson's blog

Tuesday, June 28, 2005

The Meaning of the 14th Amendment

First, here's Article IV of the Constitution:
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State....
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States....


What does this mean? From “Exploring Constitutional Conflicts”:

As the Supreme Court sees it, the Privileges and Immunities Clause of Article IV and the Commerce Clause of Article I serve the common goal of unifying the country economically. The primary purpose of the clause is to prevent states from placing unreasonable burdens on non-residents "in their pursuit of common callings within the state." The concern of the framers was that discrimination against non-residents by one state would lead to discrimination of the same sort by other states, to the detriment of the nation as a whole.

Clearly, however, the Constitution does not require states to treat residents and non-residents equally for all purposes. If this were so, non-residents could vote in another state's election, run for office in another state, or collect benefits from another state.

Justice Bushrod Washington, sitting as a circuit judge in the case of Corfield v Coryell (1825), first considered the meaning of Article IV's Privileges and Immunities Clause. Bushrod Washington concluded that the clause was meant to prevent discrimination concerning fundamental matters (such as the right to pursue an occupation in another state), but was not intended to prohibit distinctions between residents and non-residents in less fundamental matters such as opportunities for recreation. To a large extent, Washington's approach has been followed ever since.

In our two other cases, however, the Court found state attempts to restrict occupational opportunities within the state for non-residents to violate the clause. In Hicklin v Orbeck (1978), the Court struck down the "Alaska Hire Law," which gave Alaska residents a preference for jobs in the state's oil industry. And in Supreme Court of New Hampshire v Piper (1985), the Court voided a New Hampshire rule that limited admission to the state bar to New Hampshire residents. In both cases, the Court found that the states had failed to meet the high burden of justification for a law discriminating against non-residents with respect to a fundamental right. Discriminatory laws of this sort, the Court said, would only be upheld when the non-residents are "a peculiar source" of the "evil" the state is attempting to regulate and when the discrimatory law is the best way to get at the problem.


So, “privileges and immunities” are the rights of non-residents to migrate and to earn a living in another state. It doesn’t give them the privilege, however, to pay in-state tuition at the university, nor does it exempt them from the laws of the state.

Next, let’s consider:

Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.


With that in mind, let’s look at the 14th Amendment:

Amendment XIV
Section 1. All persons born or naturalized in 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 or enforce 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.


This is clearly a follow-up amendment to protect ex-slaves. Which is not to say that it is no longer in force, or that it doesn’t apply to all persons of any minority or majority group, but rather that we shouldn’t read more into this then what is written. Since all “persons born or naturalized” - including ex-slaves - are citizens of the United States, no state can deny an ex-slave the right to migrate and earn a living. No state can deny a black non-resident what is granted to a white non-resident. Nothing here suggests that states must respect the restrictions on the federal government as enumerated in the Bill of Rights.

Likewise, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Ex-slaves can not be lynched - they have access to the same court procedures and the same benefit of doubt. But the Amendment does not tell the states what the laws should be. Nothing here suggests that states must respect the restrictions on the federal government as enumerated in the Bill of Rights.

Finally, no state can “deny to any person within its jurisdiction the equal protection of the laws.” Stealing from an ex-slave must carry the same penalty as stealing from a white. Murdering an ex-slave must carry the same penalty as murdering a white. But nothing here suggests that states must respect the restrictions on the federal government as enumerated in the Bill of Rights.

The 14th Amendment does not repeal intrusive, tyrannical, or unjust laws and actions by the states. It only says that such laws can not be discriminatory. The 5th Amendment certainly forbids the federal government from using eminent domain power for private use, but the 14th Amendment does not forbids states from doing so.

So don't blame the Supreme Court for failing to provide justice in the Kelo v. New London decision. It did not have the authority or jurisdiction to interfere. The only regretable part is that the Court does think it has the authority and jurisdiction in many other cases of purely local concern.

1 comment:

  1. "Privileges and Immunities . . . "

    Sure I can't vote in West Virginia and have some of the so called privileges and immunities of a West Virginian, whenever I visit I have to pay for a temporary (four or so days) fishing license that is a lot more expensive than the annual fishing license a citizen of West Virginia pays. From my geo-libertarian perspective I'm not sure if I agree with Corfield v Coryell that the state can discriminate between residents and non-residents when dealing with natural resources, be it fishing or oystering.

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