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Introduction to Individual Rights

    If the Privileges or Immunities Clause was in fact designed to prevent the denial of certain fundamental rights, what purpose can be assigned to the Due Process and Equal Protection Clauses? The independent significance of the Due Process Clause is not difficult to envision. It provides procedural protection against the taking of life, liberty, or property. Again, the Republicans were convinced, with some justification, that individuals—in particular, former slaves and Union sympathizers—were being deprived of basic civil rights without proper procedures. The Due Process Clause specifically addressed that concern.

    Similarly, the independent purpose of the Equal Protection Clause appears to have been to ensure that all laws would be applied to individuals in an evenhanded manner. Consider again the language of the 1866 Civil Rights Act: “[C]itizens, of every race and color, … shall have the same right … to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment … and to none other. …” The Equal Protection Clause speaks directly to this concern—equal protection of the laws. The fact that segregation was actively practiced in the North as well as in the District of Columbia at the time the Fourteenth Amendment was adopted suggests that the Equal Protection Clause was not seen as a general prohibition against racial discrimination. The Privileges or Immunities Clause, on the other hand, did provide protection against racial discrimination in the context of the rights protected by the clause.

    Taking the foregoing together, what can be said of §1 of the Fourteenth Amendment? First, the Privileges or Immunities Clause was seemingly intended to prevent state discrimination with respect to fundamental civil rights, such as those protected by Article IV’s Privileges and Immunities Clause. Second, the Privileges or Immunities Clause probably was thought to include certain other fundamental rights found in the Bill of Rights, such as freedom of the press and freedom of speech. Third, the Privileges or Immunities Clause may have been designed to incorporate all the provisions of the first eight amendments to the Constitution. Fourth, the Due Process Clause required states to provide fair or reasonable procedures prior to the deprivation of life, liberty, or property. Fifth, the Equal Protection Clause was probably designed merely to remedy a state’s unequal enforcement of the laws.

    Early Judicial Trends in Construing the Fourteenth Amendment

    Four years after the ratification of the Fourteenth Amendment, the Supreme Court decided the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). At issue was a Louisiana statute that granted a monopoly over the butchering trade in three parishes in Louisiana. The butchers who challenged the statute claimed, among other things, that the monopoly violated the Privileges or Immunities Clause of the Fourteenth Amendment. The premise of the butchers’ argument was that §1 of the Fourteenth Amendment had incorporated the substantive privileges and immunities previously protected by Article IV’s Privileges and Immunities Clause, among which was the right to engage in a common calling.

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