Legal Commentary

Chief Justice Taney on the Privileges or Immunities of Citizens of the United States

By Randy Barnett

How might the Republicans in the 39th Congress have gotten the idea that the Privileges or Immunities of Citizens of the United States included the personal guarantees included in the Bill of Rights? All concede that the Fourteenth Amendment was, among other things, designed to reverse Dred Scott. Here is how Chief Justice Taney described the privileges or immunities that free blacks could never enjoy because they could never be citizens of the United States:

[W]e must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. . . . Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. . . .

The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? . . . It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States. . . .

It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

So free blacks could never be citizens of the United States, in part, because such citizenship carried with it all these fundamental rights with which a state could not interfere, a proposition to which no slave holding state could possibly have consented at the founding. Yet after the Republicans in the 39th Congress reversed this decision by amending the Constitution, the Supreme Court in The Slaughter-House Cases flipped and decided that the privileges or immunities of national citizenship were limited to state infringements of rights pertaining to the federal government such as the right to the protection of life, liberty, and property while on the high seas or the right of access to foreign embassies?as if these were the rights being denied the freedman and white unionists by Southern states. The City of Chicago and the NRA today seek to preserve The Slaughter-House Cases as a hallowed precedent, although no one?not even the City of Chicago or NRA in their briefs?attempts to defend the original reasoning of the case. Tomorrow, we will get some idea of how many Justices will recommit the Supreme Court to its decision in Slaughter-House.

Full post as published by The Volokh Conspiracy on March 01, 2010 (boomark / email).