Don't Fear the Privileges or Immunities Clause

In 1868, Congress passed and the American people, well, sort of ratified the Fourteenth Amendment to the United States Constitution. Its first section transformed the fabric of our government more or less from top to bottom. Its first clause overturned the Dred Scott decision, granting citizenship to all persons "born or naturalized" in the US. The third and fourth clauses guaranteed due process of law and equal protection of the laws to all person within each state's jurisdiction. But the second clause was pretty clearly supposed to be at least as important as these other clauses:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

This, rather plainly, was a vehicle for enforcing protections of nationally-defined individual rights against the state governments. Except the Court didn't see things that way, holding in the 1873 Slaughterhouse Cases that only those rights regarding federal matters (access to ports and waterways, running for federal office, protection on the high seas, etc.) were "privileges or immunities of citizens of the United States," while ordinary civil rights were not. They seemed to justify this holding on the grounds that it was just implausible that Congress meant to shift protection of all civil rights from the states to the federal government. That's clearly absurd.

But I've heard another, somewhat less absurd argument for why one ought to be skeptical of using the Privileges or Immunities Clause as the vehicle for "incorporation" of general civil rights against state governments, instead of the Due Process Clause: the former protects only citizens, while the latter protects all persons. This sounds plausible: it should trouble us if the right to freedom of speech, or free exercise of religion, or any of the privacy rights the Court has found over the past century, were only to be enjoyed by citizens, and not by lawfully resident aliens. But this objection also seems to me to be one that does not actually stand up, because of the Equal Protection Clause.



My view of the Equal Protection Clause is that, when Persons A and B are treated differently on the grounds of some difference between them (and the Due Process Clause probably prohibits most differential treatments that are just arbitrary), we must ask whether the difference between the two is a sufficient justification for the differential treatment. Denials of equal protection are those unequal treatments which are not sufficiently justified by the differences between people: thus, if we imprison A for many years while letting B go free because A committed murder and B did not, that's a sufficient justification and not a denial of equal protection, but if we do this because A is black and B is white, that's clearly not a sufficient justification, and is a denial of equal protection.

This is useful in easing fears of limiting civil rights to citizens. Suppose we accept that, through the Privileges or Immunities Clause, the substantive guarantees of the Bill of Rights are incorporated against the state (perhaps including the unbounded Ninth Amendment). Now we bring Equal Protection into play. Let A be a citizen, and B not be a citizen, and this the only meaningful difference between them. Is this sufficient to justify protecting A's free exercise of religion, but not granting B the same protection? Clearly not. Likewise with freedom of speech, or reproductive freedom, or liberty of contract, or most other human rights we might think of (whether or not they're actually given constitutional protection). But this is sufficient to justify allowing A to serve on a jury, while prohibiting B from doing the same. It is sufficient to let A join the military, but not B. Or to allow A to vote, and not B. Or to allow A to hold state office, and not B. Now a state may choose to allow non-citizens to join the military, or run for office, or even vote, but I think very few would claim that if the state wishes to discriminate on this basis it lacks a sufficient justification.

The worry is that granting rights protections on the grounds of citizenship will wrongfully deny those rights to non-citizens. But the beauty of the Equal Protection Clause is that this worry itself is what prevents this from happening. We believe that lack of citizenship is not sufficient cause to deny someone most individual rights, and the Equal Protection Clause says therefore that it is not sufficient cause, and therefore we may not so deprive someone of those rights on that ground. So if we use the Privileges or Immunities Clause to grant national rights protection to citizens, then through the Equal Protection Clause we extend to non-citizens all and only those rights which it is commonly held to be improper to deny on the grounds of non-citizenship. It's kind of elegant, really, and it demonstrates why the fear of wrongfully discriminating against non-citizens is not a good reason to fear the Privileges or Immunities Clause.