Legal Commentary

This is part of a series of posts which explores the historical roots of the Privileges or Immunities Clause of the Fourteenth Amendment.  The full historical evidence is presented here.

One of the most common approaches to studying the history behind the Privileges or Immunities Clause has been to seek out various historical documents which included the words ?privileges? or ?immunities.?  This turns out to be a target rich environment, as early American political and legal literature is soaked in the rhetoric of rights, with terms like ?rights,? ?privileges,? ?immunities,? ?advantages,? ?liberties? used interchangeably and in reference to everything from the privileges of individuals, groups, states, nations and corporations, to the privileges and immunities of the Christian Apostles.  Sometimes the references involved natural rights, other times conventional or common law rights, sometimes both.  In brief, simply looking for occurrences of the single terms ?privileges? or ?immunities? does not allow any particular conclusions regarding the meaning of the terms without knowing much more about the context of the particular occurrence and the particular rights-bearing group at issue.

When combined, however, the term ?privileges and immunities? takes on a more focused historical meaning.  According to early American dictionaries, one of the common meanings of ?privileges? involved the granting of a particular ?public right.?  The combined phrase ?privileges and immunities? closely tracked this definition, with antebellum legal and political sources commonly using the phrase in reference to a set of unique or specially conferred rights.  From the time of the Founding right up to and beyond the Civil War, one can find countless references to the peculiar ?privileges and immunities? of kings, diplomatic emissaries, private societies, churches, artillery company, ecclesiastics, and corporations?including incorporated towns and municipalities.  This last group was so thoroughly associated with conferred ?privileges and immunities? that antebellum dictionaries defined ?disenfranchise? as meaning ?to deprive cities, &c. of chartered privileges or immunities.? 

Antebellum legal documents, court cases, newspaper articles and treatises repeatedly placed adjectives like ?special,? ?peculiar,? ?exclusive,? and particular? in front of the paired terms ?privileges and immunities? in order to highlight the unique nature of such conferred rights.  These ?peculiar? rights might include natural rights or any other variety and combination of conferred liberties.  In short, the paired terms did not refer to a particular defined set of rights, but rather indicated the existence of a unique set of liberties or advantages, the content of which differed depending on the context and the group at issue.