Talk:Privileges or Immunities Clause

Untitled
This page should not redirect "Privileges and Immunities Clause." The United States Constitution has two distinct, although similar, clauses; the Article IV Privileges AND Immunities Clause, and the 14th Amendment Privileges OR Immunities Clause. —The preceding unsigned comment was added by Special:Contributions/ (talk)

Interpretation
I've condensed this section a bit. The usual language is to say that the Court "recognized" stuff instead of "the court created two types of citizenship...." And I don't think it's correct to say that, by doing so, the Court "effectively removed the Privileges or Immunities Clause, opting instead to focus on Privileges and Immunities Clause to protect fundamental rights." The Court in Slaughterhouse arguably diluted the P or I Clause by narrowly interpreting rights of national citizenship --- not by saying that rights of national citizenship do or don't exist. And the Court in Slaughterhouse did not say that the P & I Clause of Article IV protects various fundamental rights (the Article IV Clause only protects out-of-state visitors from discrimination).

Also, I've removed the sentence that says, "the Due Process clause has generally been used to incorporate rights of the accused." Actually, the First Amendment has nothing to do with rights of the accused. And, regarding the Heller case, no state is involved in that litigation, so this Clause of the Constitution (which expressly limits the states rather than the federal government) is not directly at issue.Ferrylodge (talk) 00:12, 16 May 2008 (UTC)


 * This sentence was recently added to the article: "Though it does not involve any state government except as amici curiae, it does address the question of the Second Amendment's applicability to governments other than the U.S. Federal Government." Actually, it's by no means clear that the D.C. government is not part of the U.S. Federal Government.  For example, see this statement from the U.S. Supreme Court:


 * "When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as 'an agency of the federal government.' Domenech v. National City Bank, 294 U.S. 199, 204 -205."


 * So, I'll correct the article accordingly, to give it a neutral point of view.Ferrylodge (talk) 20:24, 16 May 2008 (UTC)

Last paragraph
I removed the last paragraph, starting "Actually, Justice Miller...." It was probably wrong, and it was certainly argumentative.

First, it seems to me to mis-read Slaughterhouse. Justice Miller's theory of the 14th Amendment P or I clause meant that, for him, it protected rights created elsewhere. So, yes, Miller recognized that the 14th Amend. Citizenship Clause was the source of the right; but he also clearly thought that the right was protected by the P or I clause ("One of these privileges is conferred by the very article under consideration."). One could argue (as many have) that Justice Miller's reading of the P or I clause is incoherent: why have a clause that only protects rights that are already protected? Nonetheless, that's clearly what Justice Miller thought the P or I clause did, so it's wrong to imply that Justice Stevens misread Slaughterhouse.

Second, even if you think I'm wrong, our role is not to argue about our original scholarship relative to the Fourteenth Amend. If this criticism is made elsewhere, then we can cite to it; but we have no business inventing our own theories about the Fourteenth and putting them in this article.


 * I generally agree, but think you removed a bit too much.Ferrylodge (talk) 20:33, 27 August 2008 (UTC)

"Early interpretation"
The following material was recently added:

"The most substantial barrier to the Supreme Court's interpretation of the the Privileges or Immunities of the Fourteenth Amendment as a vessel for the protections of the Bill of Rights, at least during the time immediately following the adoption of the Fourteenth Amendment, was that previous cases had already interpreted the same words much more narrowly. Even before the Bill of Rights were added as amendments to the Constitution, the original Constitution included a 'privileges or immunities' provision in Article IV Section 2, presumably referring to the same language in the Articles of Confederation."

"Because both clauses predated the Bill of Rights, it is understandable that a court would be skeptical of the argument that the two should stand for the same proposition. Moreover, Corfield v. Coryell[1], an early federal cases, had suggested that the protections of the Privileges or Immunities clause in Article IV were much narrower than those of the Bill of Rights--including unenumerated rights such as the right to travel, to hold property, and the writ of Habeas Corpus."

"Nevertheless, there is a substantial body of evidence which suggest that, whatever the meaning of the Privileges or Immunities provision of Article IV, or that of the Articles of Confederation, may have been, the members of congress who drafted, debated, and the people who ratified the Fourteenth Amendment believed that its Privileges or Immunities clause would provide similar, if not identical, protections to individuals as against the states, as those individuals already enjoyed as against the federal government under the Bill of Rights."

"One of the strongest pieces of evidence in this regard is the fact that the member of congress introducing the Fourteenth Amendment stated that it would extend the protection of the first eight amendments to the states, and then listed those amendments seriatim. Additionally, abolitionists and radical Republicans (the party introducing the Fourteenth Amendment) had taken to arguing that the Privileges or Immunities clause in Article IV of the Constitution extended the protections in the bill of rights to the states, in an effort to explain why the oppressive policies of the antebellum south were antithetical to the American political system. The merits of the particular legal arguments radical Republicans made at the time argument aside, it is illuminating as to the purpose and understanding that the very people who drafted the amendment pointed to both the Due Process clause of the Fifth Amendment and the Privileges and Immunities clause of the original Constitution, to justify their argument that the southern states had exceeded their proper authority."

I'm going to remove it from the article, for the time being, for several reasons. First, it's largely uncited. We can't provide our own arguments here, and instead everything must be cited to reliable sources. WP:RS.

Additionally, I don't think it's correct. As the article describes, the first draft 14th Amendment tracked the language of Article IV, but then the second draft purposely changed the language. Article IV does not say anything about privileges and immunities "of a citizen of the united states" and instead refers to privileges and immunities of citizens "of the several states". There was clearly an attempt by the drafters of the 14th Amendment to say something different from what Article IV had said.Ferrylodge (talk) 23:03, 11 April 2009 (UTC)

False Information
The declaration that the third amendment has never been incorporated to apply to the states is blatantly false. See, Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982). ("We agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.")  Who writes this stuff? Furthermore, the 7th Amendment does indeed apply to states when a claim involves a federal right. The litigants are entitled to a jury trial in state court by virtue of the 7th Amendment, even if state rules say otherwise. See Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952). (Finding a judgment notwithstanding the verdict in a state court was a violation of the 7th Amendment)  The only way amendments which do not name the states can apply to the states is through incorporation via the 14th Amendment. I will eliminate the false information. Gx872op (talk) 16:36, 2 December 2011 (UTC)