The Meanings of the "Privileges and Immunities of Citizens" on the Eve of the Civil War

[I]n a given State, every citizen of every other State shall have the same privileges and immunities--that is, the same rights--which the citizens of that State possess. --Lemmon v. People, 20 N.Y. 562, 608 (1860). The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired. --CONF. CONST. art. IV, [section] 2, cl. 1 (1861). Resolved, That we deeply sympathize with those men who have been driven, some from their native States and others from the States of their adoption, and are now exiled from their homes on account of their opinions; and we hold the Democratic Party responsible for this gross violation of that clause of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. --Supplemental Resolution proposed by Ohio's Joshua Giddings and unanimously adopted by the Republican National Convention of 1860. (1) Congress shall provide by law for securing to the citizens of each State the privileges and immunities of citizens in the several States. (2) INTRODUCTION The Fourteenth Amendment to our Constitution provides, in part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (3) This "Privileges or Immunities Clause" has been called "the darling of the professoriate." (4) Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. (5) This Article proceeds from the same professorial ardor. Still, relative to many other treatments, this Article is both more modest and more ambitious. On the one hand, I do not propose to offer a full account of the original meaning of the Clause. On the other, I do aim to help build a genuine scholarly consensus by presenting compelling evidence that has been, for the most part, largely overlooked by contemporary scholars. (6) The focus of this particular study is the interpretation of the "privileges and immunities of citizens" offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the eve of the Civil War. This study proceeds in four parts. First, the Article defends the relevance of this inquiry. I am to refute the conclusion of Justice Miller and (more recently) of Justice Thomas that the "privileges and immunities of citizens in the several states" secured by Article IV were generally understood to be sharply distinct from the "privileges or immunities of citizens of the United States" secured by the Fourteenth Amendment. Rather, the authors of the Clause largely believed that it would provide greater security to the privileges guaranteed in Article IV. Second, the Article provides a brief account of the understanding of the Privileges and Immunities Clause before 1857, concluding that the provision's original understanding was ambiguous and generated only sporadic (though important) national controversy and commentary. As a result, up to 1857, the Privilege and Immunities Clause's meaning remained largely obscure, even among jurists. Third, the Article explains that from 1857 to 1861, in the course of national debates, at least three contrasting interpretations rose to substantial public prominence: (1) a pro-slavery, absolute-rights reading; (2) an absolute-rights reading endorsed by Republicans, which sometimes incorporated claims of black citizenship; and (3) a strictly interstate-equality understanding. The prominence of the first two readings represented radical developments relative to the third reading, a reading that had prevailed in the past and would prevail again in courts in the future. …