Tag Archives: Fourteenth Amendment

You’ve REALLY Got to Hate Brown People….

Politico recently calculated the cost of Donald Trump’s oh-so-realistic immigration plan. It came to 166 Billion dollars. (Billion with a B.)

I guess when you’re rich and delusional, a billion here and there isn’t daunting, but really– are the Republicans who are cheering Trump on really prepared to pay that much money to deport the people who–among other things– are picking their vegetables?

Here’s Politico’s breakdown– the price tag for each of Trump’s immigration policies:

• Mass deportation: $141.3 billion
• Triple the number of Immigration and Customs Enforcement (ICE) officers: $8.4 billion per year
• Building the wall: At least $5.1 billion (not including yearly maintenance)
• Nationwide E-Verify system: $2.15 billion
• Visa-tracking system: $7 billion
• Mandatory detention: $1.7 billion

These are just the cash outlays; the total doesn’t include the higher prices of produce and other economic “hits” to an economy that depends much more on the exploitation of undocumented workers than we–or The Donald– like to admit.

This is only one of Trump’s spectacularly stupid positions, of course.

Although it is really difficult to choose a favorite idiocy (and increasingly difficult to distinguish satire from reality), my favorite to date has to be this gem, uttered during an interview with Bill O’Reilly (who, next to Trump, actually looked reasonable): in a discussion of the Fourteenth Amendment provision granting “birthright citizenship” to children born in the U.S., Trump said that the Fourteenth Amendment “would never hold up in court.”

Putting aside the obvious–Trump doesn’t understand the difference between a Constitutional provision and a statute (or the operation of the American legal system, with the exception of bankruptcy law)–this effort by nativists to eliminate birthright citizenship has been embraced by a number of Republicans. Including Indiana Governor Mike Pence when he was in Congress.

A recent interview with WRTV included discussion of Pence’s sponsorship of the “Birthright Citizenship Act of 2009,” a bill to “redefine” birthright citizenship to prevent children born in the U.S. of immigrant parents from being considered citizens. (Fortunately, like virtually everything then-Congressman Pence sponsored during his tenure in Congress, the bill went nowhere.) Most Hoosiers had been unaware of Pence’s assault on that part of the 14th Amendment until Trump’s antics focused attention on the issue.

As for Trump–I don’t object to the spectacle of an yet another un-self-aware, self-aggrandizing, self-parodying jerk running for President. What freaks me out is that this one is currently leading the GOP pack.

Fourteenth Amendment: The Privileges or Immunities Clause

 Section 1 of the Fourteenth Amendment reads: “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.”

As Constitutional scholar Erwin Chemerinsky has written (in The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise), “The simplest, and perhaps most elegant, way of understanding the Fourteenth Amendment is to view the Privileges or Immunities Clause as protecting rights from government interference, the Equal Protection Clause as assuring equal treatment, and the Due Process Clause as prescribing the procedures that government must follow when it takes away life, liberty or property.”(1151-52)

Although subsequent case law has relied far more substantially upon the Due Process and Equal Protection Clauses, the history of the Amendment suggests that the Privileges or Immunities Clause was originally intended to play a far more vital role than has subsequently been the case.

The Privileges or Immunities Clause should not be confused with the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution. That clause reads “The Citizens of each State shall be entitled to all Privileges and Immunities in the several states,” and has been applied to situations where residents of one state have been disadvantaged under the laws of another state; in other words, to situations involving the refusal of a state to treat U.S. citizens from other states equally under its laws.


Passage of the Privileges or Immunities Clause and the rest of the Fourteenth Amendment was a direct outgrowth of the national debate over slavery, and the subsequent emancipation of the slaves during the Civil War. In the aftermath of that war, Congress confronted a number of thorny issues: what would be done about the rebel leaders? Would the defeated states contribute to paying off the Union’s debts? Would slave owners be compensated for the loss of their property? What measures would be required of the defeated states as a condition of their full re-admittance to the Union?

While the Republican Congress wrestled with these and other issues, and engaged in arguments with Democratic President Andrew Johnson about their resolution, the governments of the former slave states were passing measures intended to prevent the freed slaves within their jurisdictions from enjoying the same rights accorded to white citizens. There was little or nothing Congress could do about these efforts. The Constitution offered no remedy to people treated unequally or unfairly by state and local governments, as the Supreme Court had made abundantly clear in 1833, in Barron v. Baltimore.

John Barron was one of the owners of a wharf in Baltimore’s harbor. The wharf had been quite profitable; however, as the city expanded and more and more development occurred, the city allowed large amounts of sand to be dumped in the harbor. The build-up of sand eventually deprived Barron and his partners of the deep waters they needed in order to continue their successful operation of the wharf. Barron sued the city to recover a portion of his financial losses, citing the Fifth Amendment’s prohibition on taking private property for public use without just compensation. The Supreme Court ruled that the Fifth Amendment, and the other provisions of the Bill of Rights, applied only to actions by the federal government.

The Barron decision thus prevented Congress from using provisions of the Bill of Rights to punish states that acted to oppress or disadvantage former slaves, no matter how official or egregious the act.

Several Senators and Representatives had come to believe that the Constitution should be amended so that the limitations of the Bill of Rights would restrain state level governments, but the first section of the Fourteenth Amendment owes both its form and substance to Ohio Representative Jonathan Bingham, who authored the language and worked tirelessly for the enactment of the Fourteenth Amendment. In an important speech that later was reprinted as a pamphlet (One Country, One Constitution, and One People: Speech of Hon. John A Bingham of Ohio in the House of Representatives, February 28, 1866, In Support of the Proposed Amendment to Enforce the Bill of Rights), Bingham argued that the proposed Amendment was not an intrusion on states’ rights, as some asserted, because no state had the right “to withhold from any citizens of the United States, on any pretext whatever, any of the privileges of a citizen of the United States.” He insisted the Amendment was necessary to correct both the racial inequities upheld by the Supreme Court in the infamous Dred Scott decision, and the economic injustices allowed by Barron v. Baltimore.

The Fourteenth Amendment was ratified on July 28, 1868, but only after passage of the punitive Reconstruction Acts. Re-admittance of former Confederate states to the Union was conditioned upon that state’s vote to ratify, a coercive measure still cited by opponents of the Amendment who argue that ratification under duress should be considered ineffective.

A reading of the legislative history of the Fourteenth Amendment strongly suggests that its supporters saw the Privileges or Immunities Clause as the vehicle to incorporate the Bill of Rights, that is, to impose the limitations on federal action enumerated in the first eight Amendments on state and local government actors as well. The Supreme Court, however, declined to read the Clause in that way, and in The Slaughterhouse Cases,  dramatically limited its scope.

The Slaughterhouse Cases

The State of Louisiana awarded a 25-year monopoly to Crescent City Livestock Landing and Slaughter-House Company. Other abattoirs were ordered closed, and the legislature authorized the fining of competing businesses.  The Court majority dismissed claims that this favoritism violated the Fourteenth Amendment, and narrowed the Privileges or Immunities Clause into virtual irrelevance.

In a 5-4 decision, Justice Samuel Miller held that the first sentence of the Fourteenth Amendment, “All persons born and naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside,” distinguished between two citizenships, one of the United States and one of the state. He further held that the second sentence, forbidding abridgment of the Privileges and Immunities of citizenship, applied only to situations in which a state was abridging federal rights.

“The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and it is these which are placed under the protection of Congress…” The Court limited application of the Equal Protection Clause to protection “of the Negro Race,” and upheld the grant of the monopoly as a proper exercise of the state’s duty to protect public health.

Most legal scholars today agree with the four dissenters, who read the protections of the Amendment more broadly. The Slaughterhouse Cases ignored the plain effect of the language, and gutted the Privileges or Immunities Clause. In America’s Constitution: A Biography, Yale law professor Akhil Amar explains why credible legal scholars today do not consider the Slaughterhouse Cases a plausible reading of the Amendment.

Current Status and Interpretation

Perhaps the best summary of the unfortunate and continuing consequences of the opinion in the Slaughterhouse Cases was written by Kimberly C. Shankman and Roger Pilon in a 1998 Cato Policy Brief, No. 326,  Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government.

Although intense litigation under the [Fourteenth] amendment should not surprise, what is surprising is that most of it has taken place not under the Privileges or Immunities Clause, which was meant to be the principal font of individual rights, but under the Due Process and Equal Protection Clauses. Using the Due Process Clause, judges have “incorporated” most of the Bill of Rights under the Fourteenth Amendment, then applied those protections against state actions to find the actions unconstitutional. More recently, judges have used the Equal Protection Clause to the same effect and others, raising all manner of questions about the scope of their authority and the grounds of their reasoning. In all of this, however, neither liberals nor conservatives have given more than a moment’s attention to the cardinal clause of the Fourteenth Amendment, the Privileges or Immunities Clause, which remains uncited, unlitigated, uncommented upon–in a word, unnoticed. Whole chapters of modern constitutional law casebooks are devoted to due process and equal protection while privileges or immunities are dismissed in a few pages at most. Like the bark of the hound in the canon of Sherlock Holmes, what is most striking about the Privileges or Immunities Clause in the canon of Constitutional law is its absence.


Amar, Akhil Reed. 2005. America’s Constitution: A Biography. Random House.

Chemerinsky, Erwin. 1992. “The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise,” Loyola of Los Angeles Law Review. Vol. 25: 1143-1158. June.

Magliocca, Gerard N. 2013. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York University Press.

Shankman, Kimberly C. and Roger Pilon. 1998. Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government. Cato Policy Analysis, No. 326.


Sheila Suess Kennedy

Professor of Law and Public Policy, School of Public and Environmental Affairs

Indiana University Purdue University Indianapolis


Madison, Bingham and the Crapshoot of History

There was a lecture at the McKinney School of Law yesterday about Jonathan Bingham, the most important constitutional figure you’ve probably never heard of. One of the professors has just written a biography of him–“American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

I came across Bingham and the role he played in U.S. history a number of years ago, when I was researching a book of my own. He was a Republican Congressman from Ohio, a fervent believer in racial equality, who wrote the first and most famous passage of the 14th Amendment–the one forbidding states to deny “the privileges and immunities of citizenship” to their citizens, and requiring that they extend to those citizens the guarantees of due process and equal protection of the laws.

It was clear even from the brief research I did then that Bingham’s intent was to finish what Madison had tried but been unable to do–apply the entire Bill of Rights to state and local governments. (Originally, the Bill of Rights only restrained the federal government.) In the aftermath of the Civil War, he was able to get it done.

Or so he thought.

The Supreme Court declined to interpret the 14th Amendment as requiring complete and immediate”incorporation,” the weird term used by lawyers that means applying the Bill of Rights’ restrictions against government at all levels. The Court opted for “selective” incorporation–and only over a period of many years, as cases came before it, used the Amendment as a vehicle to ensure that  local government units respect the “fundamental liberties” protected by the Bill of Rights.

What too few Americans appreciate is the importance of the 14th Amendment to our current Constitutional system. Yale Constitutional scholar Akil Amar has called the post-civil rights period and the changes wrought by the 14th Amendment a second founding, and it does seem odd that even Americans who are quite familiar with the roles played by Jefferson, Madison, Franklin, Hamilton et al have never heard of Bingham, nor been taught about the profound effect of his Amendment.

Just goes to show, I guess. HIstory’s a crapshoot.