The Constitution and the Court during Reconstruction

The Fourteenth Amendment

The four clauses comprising section one of the Fourteenth Amendment have been the chief sources of legislation and litigation involving civil rights and civil liberties.  Indeed, section one of the Fourteenth Amendment has been the source of more litigation in the federal courts than any other provision of the Constitution.  The Supreme Court’s interpretations of various provisions of the Fourteenth Amendment have changed considerably over time and no doubt will continue to do so.  Following is a brief overview of each clause and examples of interpretive questions that have been taken to the federal courts. 

Citizenship clause.  The original Constitution makes several references to American citizenship.  Articles I and II provide that members of Congress and the President must be United States citizens.  Article IV guarantees to citizens of each state the privileges and immunities of citizens of the several states.  However, the Constitution of 1789 did not define citizenship.  The first sentence of the Fourteenth Amendment provided a definition for the first time in 1868: all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and of the states within which they reside.  The effect of this definition was to overturn Dred Scott v. Sandford.  Disputes over citizenship persisted, however.   In Elk v. Wilkins (1884), for example, the court ruled that Native Americans who were born in the United States were not automatically United States citizens, because their tribal status meant that they were not entirely subject to the jurisdiction of the United States.  (The Snyder Act of 1924 conferred citizenship on American Indians, thereby nullifying Elk.)  The citizenship clause also did not resolve questions about the relationship between citizenship and the right to vote.  In Minor v. Happersett (1875), the court held that women who were citizens did not have the right to vote. (That decision was overturned by the 19th Amendment in 1920.)  

Federal courts also have held that the citizenship clause refers to only natural, not artificial, persons.  Corporations, for example, are examples of artificial persons.  Corporations are not entitled to the privileges and immunities of citizens guaranteed in either Article IV (Paul v. Virginia (1869)) or the Fourteenth Amendment (Insurance Co. v. New Orleans (1870 Louisiana federal district court)).

Privileges or immunities clause.  The next three clauses of Section 1 of the Fourteenth Amendment are written in negative terms: “No state shall. . .” The privilege or immunities clause prohibits states from making or enforcing laws that “abridge the privileges or immunities of citizens of the United States.”  The clause has a close counterpart in Article IV, section 2, of the Constitution, which guarantees citizens of each state “all Privileges and Immunities of Citizens in the several states.”  The meaning of the phrase “privileges or immunities” is not entirely clear in either clause. 

Whatever might have been the intent of the drafters of the privileges or immunities clause in the Fourteenth Amendment, the Supreme Court in the first case brought under the provision rendered it a practical nullity.  The case involved a Louisiana law granting a partial monopoly to the Crescent City Live-Stock Landing and Slaughtering Company in New Orleans and requiring all butchering in the city to be done at the Crescent City facility.  Butchers who were excluded from the monopoly argued that the monopoly violated both the Thirteenth and Fourteenth Amendments.  They asserted that one of the privileges or immunities of citizenship is the right of workers to use their labor to earn a living.  The state-sanctioned monopoly deprived them of that right.  

The Supreme Court upheld the power of the state to grant the monopoly.  Specifically, it held that the privileges or immunities clause applies only to national, not to state, citizenship.  Slaughterhouse Cases (1873). 

The effect of the Slaughterhouse Cases was to shift civil rights enforcement and litigation to the due process and equal protection clauses of the Fourteenth Amendment.  Despite efforts by various groups to have the Supreme Court breathe new life into the privileges or immunities clause—including contemporary claims that the clause was intended to protect fundamental rights such as liberty of contract and the right to carry guns—the court has continued to ignore the clause and focus instead on fundamental rights under the due process clause.