Hunter Poindexter, Associate Member, University of Cincinnati Law Review
Among other things, the Fourteenth Amendment of the Constitution proclaims, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” For decades, legal scholars have debated the true intention and meaning of the Privileges or Immunities clause. While a number of scholars argue that the clause was established to incorporate the Bill of Rights against the states, others contend that the clause was intended to protect unenumerated fundamental rights, such as those laid about by Justice Washington in Corfield v. Coryell. Regardless of the numerous interpretations asserted by scholars, the Supreme Court definitively ruled on the issue with the infamous Slaughter-House Cases. Writing for the majority, Justice Miller held that the Privileges or Immunities clause only protected rights relating to federal citizenship from infringement, and that other privileges and immunities were “left to the State governments for security and protection . . .” The dissent noted that the majority’s interpretation only protected rights which had already been secured by the Constitution, essentially ridding the Privileges or Immunities clause of all meaning. Since the Slaughter-House Cases, the Court has seldom mentioned or implicated the Privileges or Immunities clause in its opinions. However, on a handful of occasions, the Justices have shown a renewed interest in the provision. Part II of this post discusses the recent background of the Privileges or Immunities clause in the Court’s decisions. Part III focuses on the concurrences of Justices Thomas and Gorsuch in Timbs v. Indiana, and Part IV analyzes whether these concurrences signal a revival of the Privileges or Immunities clause in American jurisprudence.
In Saenz v. Roe, the Court held that the Privileges or Immunities clause protects an individual’s right to travel from one state to another.  Interestingly, this interpretation does not conflict with the majority or dissenting opinions of the Slaughter-House Cases, as each opinion acknowledged that the Privileges or Immunities clause protects a citizen’s right to travel. In his dissenting opinion in Saenz, Justice Thomas contended that the majority placed a meaning on the Privileges or Immunities clause that was unintended by the framers. Moreover, Justice Thomas acknowledged that he would “be open to reevaluating” the interpretation of the Privileges or Immunities clause in a future case, but only with a proper evaluation of the framers’ intent. Eleven years later, Justice Thomas’s willingness to look back into the Privileges or Immunities clause rang true with his concurring opinion in McDonald v. City of Chicago.
In McDonald, the Court held that the Due Process clause of the Fourteenth Amendment incorporates the Second Amendment’s right to bear arms against the states. Notably, the plurality in McDonald explicitly declined to overrule the Slaughter-House Cases, and thus refused to use the Privileges or Immunities clause as a vehicle for incorporation. On the other hand, Justice Thomas, concurring in the judgment, argued that the Privileges or Immunities clause was indeed the correct mechanism for incorporating the Second Amendment. Justice Thomas rejected the Court’s interpretation of the Privileges or Immunities clause in the Slaughter-House Cases, and contended that the clause should be interpreted by “what ‘ordinary citizens’ at the time of ratification would have understood the Privileges or Immunities Clause to mean.”
III. Timbs v. Indiana
Prior to the 2018-2019 term, Justice Thomas appeared to be alone in his Privileges or Immunities jurisprudence. However, in Timbs, Thomas found an ally in Justice Gorsuch. Timbs revolved around the issue of whether the Excessive Fines clause of the Eighth Amendment may be incorporated against the states. The appellant in Timbs was arrested for dealing a controlled substance, and the State of Indiana attempted to seize the appellant’s $42,000 SUV because it was used to transport heroin. In a majority opinion drafted by Justice Ginsburg, the Court held that the Due Process clause of the Fourteenth Amendment incorporates the Excessive Fines clause against the states. In his opinion concurring in the judgment, Justice Thomas again analyzed the issue under the Privileges or Immunities clause, criticizing the majority for its use of the Substantive Due Process doctrine. Under his analysis, Justice Thomas acknowledged that the ratifying public would have understood the Privileges or Immunities clause to protect against excessive fines imposed by the states. While Justice Thomas’s reliance on the Privileges or Immunities clause was not particularly notable given his opinion in McDonald, this time he managed to receive support from a colleague. Writing separately, Justice Gorsuch agreed with the majority opinion in using the Due Process clause to incorporate the Excessive Fines clause. However, Gorsuch also acknowledged that if the case had turned on the issue, “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause . . .” With this nod of approval, Justice Gorsuch opened the door for a potential revival of the Privileges or Immunities clause.
For nearly 150 years, the Privileges or Immunities clause has played virtually no role in American jurisprudence; rather, the Supreme Court has relied heavily on the Due Process clause to protect fundamental rights. The issue with this reliance, however, is that it has drawn the ire of scholars insistent on an originalist construction of the Constitution. Numerous scholars, most notably Justice Thomas, view the Due Process clause to refer to procedure as opposed to substance. With this originalist interpretation in mind, the Privileges or Immunities clause appears to be an alternative mechanism for the protection of fundamental rights.
With the addition of Gorsuch to the bench in April 2017, conservatives anticipated a highly-originalist jurisprudence from the Justice. After all, Gorsuch was replacing the Court’s premier advocate for originalism, Antonin Scalia. It should be noted, however, that Justice Scalia never elected to utilize the Privileges or Immunities clause in his decision-making. In fact, in McDonald, Justice Scalia chose to join the majority opinion rather than Justice Thomas’s concurrence, although he expressly acknowledged that he was troubled by the majority’s use of the Due Process clause. Thus, even with an originalist approach to rival that of Scalia, Justice Gorsuch’s acknowledgment of the Privileges or Immunities clause was not necessarily expected.
For what it’s worth, Timbs holds no real precedential weight. Because the opinions of Justices Thomas and Gorsuch were merely concurrences, the Court has no obligation to follow their interpretations in future cases. However, Timbs does provide an interesting look into the potential future of constitutional law. As of right now, the Court has two Justices who acknowledge a possible revival of the Privileges or Immunities clause. In 2018, the Court added another conservative member in Brett Kavanaugh. While Kavanaugh did not join Justices Thomas or Gorsuch in Timbs, he is nonetheless expected to have a textualist jurisprudence during his tenure on the Court. As such, it is conceivable that Justice Kavanaugh’s approach could develop over time to match that of Justices Thomas and Gorsuch. If one-third of the Court were to use the Privileges or Immunities clause as a vehicle to protect rights, the remainder of the Court would at least have to acknowledge the possibility of breathing new life into the provision.
Furthermore, Justice Ginsburg and Justice Breyer are anticipated to end their tenure on the Supreme Court within the next decade or so. If conservatives maintain control of the White House during the times of these nominations, the new Justices will almost certainly maintain an originalist jurisprudence. If, at that time, Justices Thomas, Gorsuch, and Kavanaugh are willing to utilize the Privileges or Immunities clause, the new Justices would likely also consider adhering to this methodology. The Court would then have a majority of its members implicating the Privileges or Immunities clause to protect fundamental rights, therefore creating precedent for the Court. While this revival is far from certain, its potential is nonetheless significant.
The Slaughter-House Cases essentially stripped the Privileges or Immunities clause of all meaning. Within the past ten years, Justice Thomas has asserted that the clause should be implicated in lieu of the Due Process clause to protect fundamental rights; however, until Timbs, Thomas was alone in his analysis. With Justice Gorsuch’s concurrence in Timbs, Justice Thomas has been somewhat vindicated in his methodology. As Justice Kavanaugh’s jurisprudence evolves, and as new Justices are welcomed to the bench, the Court faces the real possibility of a revival of the Privileges or Immunities clause.
Douglas G. Smith, The Privileges and Immunities Clause of Article IV, Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 San Diego L. Rev. 809, 812.
6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (asserting that the privileges or immunities of citizenship would fall under several “general heads,” including governmental protection, enjoying life and liberty, owning property, and pursuing happiness).
83 U.S. 36 (1873).
Id. at 78.
See id. at 96 (Field, J., dissenting).
139 S. Ct. 682.
526 U.S. 489 (1999).
Id. at 503-04.
Id. (citing Slaughter-House Cases, 83 U.S. at 80, 112).
Id. at 521 (Thomas, J., dissenting).
Id. at 528.
561 U.S. 742 (2010).
Id. at 791.
Id. at 758.
Id. at 806 (Thomas, J., concurring in part and concurring in judgment).
Id. at 813, 852.
Timbs, 139 S. Ct.at 686.
Id. at 687.
Id. at 691-92.
Id. at 693.
Id. at 692.
See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Meyer v. Nebraska, 262 U.S. 390 (1923).
See Lauren Russell & Nina Totenberg, Trump’s Supreme Court Pick is a Disciple of Scalia’s ‘Originalist’ Crusade, NPR (Feb. 2, 2017, 6:00 AM), https://www.npr.org/2017/02/02/512891485/trumps-supreme-court-pick-is-a-disciple-of-scalias-originalist-crusade [https://perma.cc/9ZY5-DNXR].
McDonald, 561 U.S. at 791 (Scalia, J., concurring).