MISCELLANEOUS CLAUSES: 14TH AM. PRIVILEGES OR IMMUNITIES; TAKING; CONTRACT; RIGHT TO BEAR ARMS; EX POST FACTO; BILLS OF ATTAINDER

i. Rights of national citizenship:  The Slaughterhouse majority attempted to rebut the suggestion that under its interpretation, the Privileges or Immunities Clause accomplished nothing. The majority observed that there were several rights of “national” (as opposed to state) citizenship. The majority’s short catalogue of “national” citizenship rights included “free access to … seaports,” federal protection “when on the high seas or within the jurisdiction of a foreign government,” and a few other limited rights. These rights, the majority acknowledged, could not be infringed by any state, by virtue of the Fourteenth Amendment Privileges or Immunities Clause.

c. Minority view:  The four-Justice minority in the Slaughterhouse Cases flatly rejected the majority’s limited reading of the Fourteenth Amendment Privileges or Immunities Clause. Even without the Fourteenth Amendment, the dissent argued, the privileges and immunities of national citizenship were already protected against state action (by virtue of the Supremacy Clause). Thus the majority view made the P-or-I Clause utterly useless. The correct view, the dissent contended, was that the Clause guaranteed to every U.S. citizen that his “fundamental rights,” rights which “belong to the citizens of all free governments,” would not be infringed by any state. These fundamental rights included the right to “pursue a lawful employment in a lawful manner.”

2. View of clause until 1999:  Until 1999, the Slaughterhouse majority’s view of the Fourteenth Amendment Privileges or Immunities Clause prevailed.  For 125 years after that decision, only one state law was ever invalidated under the clause, and that decision was soon overruled. Only a few rights of “national” (as opposed to “state”) citizenship were deemed protected, such as the right to travel physically from state to state, to petition Congress for redress of grievances, to vote in national elections, to enter federally-owned lands, and to be protected while in the custody of U.S. marshall (see Twining v. New Jersey, 211 U.S. 78 (1908)), and these were rarely even claimed to be abridged by state laws.

3. View expanded in Saenz:  But then, a surprising 7-2 decision in 1999 breathed dramatic new life into the Fourteenth Amendment Privileges or Immunities Clause. In Saenz v. Roe, 526 U.S. 489 (1999), the Court held that the clause protects a particular and important aspect of the so-called “right to travel,” namely the right of a person who has recently become a citizen of a state to the same privileges enjoyed by longer-standing citizens of that state. Saenz became only the second case in 125 years to strike down a state law on Fourteenth Amendment P-or-I grounds.

a. Welfare rights:  Saenz involved the right of a newly-arrived resident in California to receive the same state welfare benefits as a person who had been in the state longer.  California, acting under express congressional authority, said that anyone who had resided in the state for less than one year would receive welfare benefits no greater than the level of benefits the person had received in her prior state of residence. (45 of the 49 other states had lower benefit levels than California.) Although California denied that the purpose of its provision was to deter the migration of poor people into California, the lower federal courts in Saenz found that this was indeed the statute’s purpose.