Since it applies to citizens of the United States, the clause also applies to the privileges and immunities of national citizenship. In general, the legal protection associated with national citizenship is immune to restrictions imposed by State law due to the primacy of federal law under article VI of the Constitution. With regard to the privileges and immunities of national citizenship which States had restricted prior to the adoption of the Fourteenth Amendment, the effect of the clause was indirect but important. Although states were required to respect the rights of national citizenship prior to the passage of the amendment, the power of Congress to pass laws positively protecting those rights has been the subject of significant controversy. Article 5 of the Fourteenth Amendment expressly authorizes Congress to apply the amendment, including the privilege or immunity clause. Congress now has the power to create protections for national citizenship rights that it may have lacked before. It is obvious that if the citizens of each State were to be considered aliens to each other, they would not be able to take or hold real estate or other privileges, except as other aliens. The intention of this article was to give them, if you can put it that way, a general citizenship; and to communicate all the privileges and immunities to which citizens of the same State would be entitled in the same circumstances. James Madison discussed this provision of the Articles of Confederation in Federalist No. 42.
Madison wrote: “Those who fall under the designation of free residents of a state, although they are not citizens of such a state, are entitled in any other state to all the privileges of the free citizens of that state; that is, to privileges greater than those to which they are entitled in their own State. Madison apparently did not believe that this clause in the Articles of Confederation dictated how a state should treat its own citizens. Alexander Hamilton wrote in Federalist No. 80 that the corresponding privileges and immunity clause in the draft federal Constitution was “the foundation of the Union.” The privileges or immunities clause of the Fourteenth Amendment refers to the civil rights associated with national and state citizenship. The clause refers to the privileges and immunities of U.S. citizens, and Section 1 of the amendment also makes U.S. citizens citizens citizens of the state in which they reside, thus ensuring that people who are U.S. citizens are also citizens of a state if they live there. The privileges and immunities of citizens are civil rights as they are understood in the legal classifications of the nineteenth century. These are the fundamental rights of ordinary life, especially to own property, enter into contracts and establish domestic relationships, but do not include political rights such as voting, nor special legal advantages such as franchises, that the government grants to individuals primarily to promote the public interest. (The classification of many twenty-first-century state benefits between civil rights and special privileges often raises difficult questions about the application of an old legal concept to new circumstances.) Now that we know which “citizens” are protected in their “fundamental rights”, we are ready to embark on a two-stage investigation. In 1866, during congressional debates on the proposed Fourteenth Amendment to the United States Constitution, Senator Jacob Howard noted that the U.S.
Supreme Court had never directly addressed the importance of the privilege and immunity clause: The privileges and immunity clause of Article IV, Section 2 of the Constitution states that “the citizens of each state are entitled to all the privileges and immunities of the citizens of the various states. States”. This clause protects the fundamental rights of individual citizens and limits the state`s efforts to discriminate against citizens outside the state. However, the privilege and immunity clause does not extend to all commercial activities, but only to fundamental rights. The rights, privileges and immunities of citizens of the United States shall be respected in Puerto Rico to the extent that Puerto Rico was a State of the Union and subject to the provisions of section 1 of section 2 of article IV of the Constitution of the United States. There has been a great scientific debate about the purpose of this constitutional provision. One way of understanding the purpose of the privileges and immunities clause is its textual predecessor, Article IV of the Articles of Confederation, which states: “To ensure and maintain friendship and mutual relations between the peoples of the various States of this Union, the free inhabitants of each of these States … are entitled to all the privileges and immunities of free citizens in the various States; and the people of each State free themselves from the entry and exit of any other State, enjoying there all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as its inhabitants. The Federalist Papers also provide an overview of the clause. Madison Federalist No. 42. Madison stated: “Those who fall under the designation of free residents of a state, although they are not citizens of such a state, are entitled in any other state to all the privileges of the free citizens of that state; that is, to privileges greater than those to which they may be entitled in their own State.
In Federalist No. 80, Hamilton expressed his belief in the meaning of the clause when he wrote that the privilege and immunity clause (the version of the Constitution) was “the basis of union.” According to Supreme Court cases, privileges and immunities that no state can restrict include only a limited number of legal protections related to distinctive national citizenship as opposed to state citizenship. In the Court`s view, the fundamental statutory rights of private law, such as property, contracts, and family relationships, are not related to U.S. citizenship as such. Rather, these rights are linked to the citizenship of the state. According to the Court, national citizenship rights also do not include the protection of the first eight amendments to the Constitution to the extent that these restrictions may apply to states as opposed to the United States. Although the Court has held that the Fourteenth Amendment applies most of these restrictions to States, it considers that this result is not achieved by the privilege or immunity clause. However, in various concurring and dissenting opinions over the years, several members of the Court have emphasized the importance of the privileges or immunities clause as a key or key element in the application of various rights mentioned in the Bill of Rights against state and local governments. B such as the right to speak and pray freely.
The Court established certain national citizenship rights under the clause, such as the right to travel from one State to another and to establish residence in a new State. As Ohio Congressman John Bingham wrote, a crucial clause of the Fourteenth Amendment reads, “No state may enact or enforce any law that restricts the privileges or immunities of citizens of the United States.” In the nineteenth century (as now), these “privileges” and “immunities” included important Bill of Rights protections, such as freedom of expression. Even the infamous Dred Scott v. The Sandford decision (1857) – the most widely read Supreme Court decision of the time – recognized this and called the Bill of Rights “the rights and privileges of citizens” and specific protections such as “freedom of expression” and the right to “possess and bear arms” as “privileges and immunities of citizens.” Bingham`s privileges or immunities clause simply stipulated that the states of post-Civil War America would no longer be allowed to abuse these fundamental rights – as they had so often done in the South before the Civil War and the reconstruction period. .