Privileges or Immunities Clause — Slaughterhouse to Timbs

The Privileges or Immunities Clause of the Fourteenth Amendment — "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" — is one of the most consequential provisions in the Constitution's history, and also one of the most underused. Written in 1868 primarily to overrule Dred Scott v. Sandford (1857) and guarantee that all persons born in the United States are citizens with enforceable national rights, the Clause was almost immediately gutted by the Supreme Court in The Slaughterhouse Cases (1873). Justice Miller's majority held that the Clause protects only the "privileges or immunities of citizens of the United States" — a narrow set of rights arising from national citizenship — not the broad catalog of civil rights arising from state citizenship that the Reconstruction Framers almost certainly intended to protect. Slaughterhouse left the Privileges or Immunities Clause largely inoperable as a vehicle for protecting fundamental rights, forcing courts to use the Due Process and Equal Protection Clauses instead. The Clause was briefly revived in Saenz v. Roe (1999), which used it to strike down California's durational residency requirements for welfare benefits. McDonald v. City of Chicago (2010) incorporated the Second Amendment against states through the Due Process Clause rather than Privileges or Immunities, with Justice Thomas writing separately that Slaughterhouse should be overruled. The Clause's dormancy has had profound doctrinal consequences: the structure of incorporation doctrine, substantive due process, and fundamental rights jurisprudence are all, in part, workarounds for the Privileges or Immunities Clause that Slaughterhouse disabled.

Current Law (2026)

Key Mechanics

The Privileges or Immunities Clause of the Fourteenth Amendment — "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" — was intended by the Reconstruction framers to protect a broad range of individual rights against state infringement, likely including most of the Bill of Rights. The Slaughterhouse Cases (1873), decided just 5 years after ratification, gutted this interpretation: a 5-4 majority construed "privileges or immunities of citizens of the United States" to cover only rights arising from national citizenship (a narrow list: access to Washington D.C., use of navigable waters, protection on the high seas) — explicitly excluding the broad rights associated with state citizenship. This interpretation rendered the Clause effectively dead for 126 years. Instead, the Court achieved incorporation of the Bill of Rights against states through the Due Process Clause (beginning in the 1920s). The Clause had one modern application: Saenz v. Roe (1999) used it to strike California's one-year residency requirement for welfare benefits because it violated the right of newly arrived state citizens to be treated equally to long-time residents — protecting the right to travel and to be treated as full citizens upon arrival. Three current justices (Thomas, Gorsuch, and others) have expressed willingness to overrule Slaughterhouse and restore the Clause's original scope — which would relocate the doctrinal basis for incorporation from Due Process to Privileges or Immunities and potentially expand constitutional protection for unenumerated rights. The Article IV Privileges and Immunities Clause is distinct — it protects interstate comity (non-discrimination against out-of-state citizens) and remains active.

Legal Authority

• U.S. Const. amend. XIV, § 1 — "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"
• U.S. Const. art. IV, § 2, cl. 1 — Privileges and Immunities Clause (Article IV): "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" — related but distinct provision protecting interstate comity; not the same as the Fourteenth Amendment provision
• The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873) — Privileges or Immunities Clause narrowed to rights arising solely from national (not state) citizenship; the Clause's evisceration
• Saenz v. Roe, 526 U.S. 489 (1999) — California's one-year residency requirement for welfare benefits struck down; P or I Clause protects the right of new state citizens to be treated equally to long-time residents
• McDonald v. City of Chicago, 561 U.S. 742 (2010) — Second Amendment incorporated against states through Due Process Clause; Thomas would overrule Slaughterhouse and use P or I Clause instead
• Timbs v. Indiana, 586 U.S. 146 (2019) — Excessive Fines Clause of Eighth Amendment incorporated against states through Due Process; Gorsuch concurrence would use P or I Clause
• Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) — Alito majority relies on Due Process for substantive rights analysis; Thomas concurrence again calls for overruling Slaughterhouse

How It Works

The Reconstruction Framers' Intent

The Fourteenth Amendment was ratified in 1868 as the constitutional cornerstone of Reconstruction. Its authors — Republicans in the Thirty-Ninth Congress who had lived through the Civil War — wrote the Privileges or Immunities Clause to accomplish several overlapping goals:

Overrule Dred Scott: Taney had held in Dred Scott that African Americans could not be citizens. The Citizenship Clause of Section 1 directly reversed this. The Privileges or Immunities Clause then guaranteed that these new citizens — and all U.S. citizens — would have their privileges and immunities protected against state infringement.

Override the Black Codes: Southern states had enacted "Black Codes" after the Civil War — statutes that nominally freed enslaved persons but deprived them of the ability to testify in court, make contracts, own property, and enjoy the fundamental legal rights of free persons. The Privileges or Immunities Clause was meant to ensure that states could not strip citizens of these basic civil rights.

Constitutionalize the Civil Rights Act of 1866: Congress had enacted the Civil Rights Act of 1866 — guaranteeing all citizens equal rights to make and enforce contracts, sue, give evidence, and hold property — before the Fourteenth Amendment. Some doubted Congress's power to enact it; the Fourteenth Amendment was partly intended to provide clear constitutional authority for such civil rights legislation.

The Framers understood "privileges or immunities of citizens" to be a broad category of fundamental civil rights — the rights that belong to free persons as citizens of a republic. Senator Jacob Howard, who introduced the Amendment in the Senate, listed the Bill of Rights as among these privileges and immunities, along with the natural rights "protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety."

The Slaughterhouse Cases (1873): The Clause Gutted

Five years after ratification, the Supreme Court decided The Slaughterhouse Cases — a business regulation dispute that became the vehicle for drastically curtailing the Fourteenth Amendment's promise.

The Louisiana legislature had granted a monopoly to a single corporation to operate all slaughterhouses in the New Orleans area, forcing independent butchers out of business. The butchers claimed this violated their Fourteenth Amendment privileges or immunities as citizens.

Justice Miller's majority opinion — decided 5-4 — distinguished two types of citizenship: state citizenship and national citizenship. The Privileges or Immunities Clause, Miller held, protects only the "privileges or immunities of citizens of the United States" — rights that arise from national citizenship. These are limited: access to federal buildings and federal lands, the right to travel to the seat of government, the right to protection on the high seas, the right to use the navigable waters of the United States, the right to the writ of habeas corpus. The sweeping civil rights that citizens enjoy as members of state civil society — the rights to pursue ordinary occupations, make contracts, and own property — are privileges of state citizenship, not national citizenship, and are not protected by the Clause.

This distinction was almost certainly wrong as a historical matter. The Clause's purpose was precisely to federalize protection of fundamental civil rights — to take rights that had been left to state protection and make them enforceable against states as rights of national citizenship. Miller's narrow reading made the Clause nearly useless for this purpose.

Justice Field's famous dissent argued that the Clause protects fundamental rights common to all free citizens — the right to pursue lawful occupations, make contracts, own property, access courts — and that Miller's reading reduced the Clause to a "vain and idle enactment." Bradley's and Swayne's dissents echoed this critique.

The Consequences: Incorporation Through Due Process

Slaughterhouse's evisceration of the Privileges or Immunities Clause had profound downstream effects. Because the Clause was read to protect only a narrow set of national rights, courts could not use it as the vehicle for applying the Bill of Rights to states — which had been one of its intended functions. Instead, the Supreme Court developed the doctrine of selective incorporation through the Due Process Clause of the Fourteenth Amendment.

Starting with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) (just compensation) and accelerating through the twentieth century, the Court held that certain provisions of the Bill of Rights are "incorporated" against states through the Fourteenth Amendment's Due Process Clause — because those rights are "fundamental to ordered liberty" or "deeply rooted in this Nation's history and tradition." This approach incorporates rights one by one rather than wholesale.

The selective incorporation doctrine — which has now incorporated most of the Bill of Rights against states — is a judicial workaround for the Clause that Slaughterhouse disabled. It has produced substantial doctrinal complexity: courts must determine case-by-case which rights are sufficiently "fundamental," and the criteria are contested. Had the Privileges or Immunities Clause been interpreted as the Framers appear to have intended, wholesale incorporation through a more direct route might have been available.

Saenz v. Roe (1999): Brief Revival

Saenz v. Roe (1999) is the only significant Supreme Court decision to give the Privileges or Immunities Clause independent doctrinal work in the modern era. California limited new residents' welfare benefits to the level they would have received in their prior state of residence for their first year in California. The effect: a family moving from Mississippi (lower benefits) to California would receive Mississippi-level benefits in California for a year, despite California's higher benefit levels.

Justice Stevens's majority struck down California's rule under the Privileges or Immunities Clause, identifying a third component of the right to travel: the right of new citizens to be treated equally to long-time residents of their new state. The Citizenship Clause makes new citizens of a state upon arrival; the Privileges or Immunities Clause ensures that these new citizens immediately enjoy the same privileges as established residents — states cannot create permanent second-class citizenship for new arrivals.

Saenz revived the Clause for this limited purpose. It has not been significantly extended since.

McDonald and Timbs: Missed Opportunities?

McDonald v. City of Chicago (2010) gave the Court an opportunity to reconsider Slaughterhouse when incorporating the Second Amendment against states. Justice Thomas's concurrence — for himself alone — argued extensively that Slaughterhouse was wrong and that the Second Amendment should be incorporated through the Privileges or Immunities Clause. The majority incorporated through Due Process, leaving Slaughterhouse intact.

Timbs v. Indiana (2019) incorporated the Excessive Fines Clause through Due Process; Justice Gorsuch's concurrence argued the Privileges or Immunities Clause should have been the vehicle. Again, no majority took the opportunity.

Justice Thomas's view — that Slaughterhouse was wrong and should be overruled, and that the Privileges or Immunities Clause should become the primary vehicle for incorporation and protection of fundamental rights — has attracted scholarly support but has not commanded a Court majority. A reconsideration of Slaughterhouse remains a possibility in a future case with the right doctrinal framing.

How It Affects You

If you are a new resident of a state: Saenz v. Roe (1999) directly protects you under the Privileges or Immunities Clause: when you move to a new state and become a citizen of that state, you are immediately entitled to the same privileges as long-time residents. A state cannot impose durational residency requirements that give you lesser benefits or rights than established residents solely because you recently arrived. This applies to welfare benefits (Saenz specifically) and likely to other state-provided benefits and rights. If a state penalizes you for being a new resident — requiring a waiting period for full benefits, denying rights available to established residents — the Privileges or Immunities Clause provides a constitutional basis for challenge.

If you are a constitutional litigant challenging state restrictions on fundamental rights: The current doctrinal landscape routes most fundamental rights claims through the Due Process and Equal Protection Clauses rather than Privileges or Immunities. However, if you are challenging a state law that restricts what might be a "privilege or immunity of national citizenship" — a right that arises from being an American citizen rather than merely a state resident — the Clause provides an alternative or supplemental constitutional theory. Because Slaughterhouse gave the Clause such narrow scope, courts are reluctant to expand it, but the scholarly and judicial dissatisfaction with Slaughterhouse is genuine. A well-developed P or I argument may be more persuasive to certain Justices (particularly Thomas and Gorsuch) than to the full Court.

If you are a constitutional scholar or law professor: The Privileges or Immunities Clause is arguably the most underutilized major constitutional provision in American law. Slaughterhouse's interpretation is widely criticized as historically wrong, and a serious reconsideration could restructure much of constitutional doctrine — providing a cleaner vehicle for incorporation, potentially protecting economic liberties that the Lochner-era Court overprotected and the New Deal Court abandoned, and giving the Fourteenth Amendment its full structural weight. The scholarship on this clause — from Charles Fairman and William Crosskey's historical debates to Michael Kent Curtis's and Akhil Amar's revisionist accounts — is rich. Understanding the clause's history illuminates why substantive due process, selective incorporation, and fundamental rights doctrine all carry such conceptual strain.

If you are a state legislator or attorney general: While the Privileges or Immunities Clause is currently narrow in application, its potential expansion poses future risks for state laws that distinguish between new and established residents, restrict activities protected by national citizenship, or condition access to state benefits on durational residency. Design programs to treat new residents and established residents equally from the moment of state citizenship. Any law that creates a two-tier system of citizenship — privileges for established residents that new citizens do not share — runs the greatest Privileges or Immunities risk under current doctrine.

State Variations

The Privileges or Immunities Clause is a federal constitutional provision directed at state governments; it defines limits on state power, not grants of state power. State variation arises in two forms:

State privileges and immunities clauses: Many state constitutions contain their own privileges and immunities provisions, often broader than the Fourteenth Amendment's Clause as currently interpreted. These state provisions may protect rights that the narrowed federal Clause does not — including economic liberties, occupational rights, and equality between state citizens. State courts applying state constitutional privileges and immunities clauses can provide more robust protection than the narrow federal standard.

State residency requirements: Saenz v. Roe limits states' ability to impose durational residency requirements on new citizens for state benefit programs. Despite Saenz, states have continued to litigate the edges of permissible residency requirements — for voting registration, professional licensing, tuition rates at public universities, and eligibility for state programs. States may impose bona fide residency requirements (you must actually live here) but generally not durational requirements (you must have lived here for a certain period) for benefits and rights available to established residents.

Article IV Privileges and Immunities: The Article IV Privileges and Immunities Clause — distinct from the Fourteenth Amendment's Clause — protects citizens traveling between states from discrimination by host states. A citizen of one state who visits another is entitled to the "privileges and immunities" of citizens of that state for fundamental rights and ordinary economic activities. This clause has generated its own body of law on discrimination against out-of-staters in professional licensing, commercial fishing, and access to state courts — largely independent of the Fourteenth Amendment's Clause.

Pending Legislation

No pending federal legislation directly addresses the Privileges or Immunities Clause — its scope is defined by judicial interpretation rather than by statute. However, constitutional interpretation is shaped by the cases that come before the courts, and several pending or recent litigation areas could provide vehicles for Slaughterhouse reconsideration:

• Interstate travel for abortion: Some states have enacted laws restricting or penalizing interstate travel to obtain abortions in other states. Challenges to these laws implicate Article IV's Privileges and Immunities Clause, the Fourteenth Amendment's Privileges or Immunities Clause, and the right to travel — a convergence that might give the Supreme Court reason to revisit the Clause's scope.
• Professional licensing reform: Federal proposals to improve interstate recognition of professional licenses touch on the Privileges or Immunities dimension of occupational rights — the right to practice one's chosen occupation without arbitrary state restriction was one of the rights the Framers likely intended the Clause to protect.

Recent Developments

• 2010 — McDonald v. City of Chicago: Second Amendment incorporated against states through Due Process; Thomas's concurrence argues for overruling Slaughterhouse and using the Privileges or Immunities Clause. No majority for reconsideration; Slaughterhouse survives.
• 2019 — Timbs v. Indiana: Excessive Fines Clause incorporated through Due Process; Gorsuch concurrence argues P or I Clause should be the proper vehicle. The Court's continued reluctance to disturb Slaughterhouse despite scholarly consensus that it was wrongly decided.
• 2022 — Dobbs v. Jackson Women's Health Organization: Thomas's concurrence explicitly calls for overruling Slaughterhouse, among other substantive due process precedents. The alignment between Dobbs's approach to fundamental rights and Slaughterhouse reconsideration makes a future P or I case more plausible.
• 2025 — Birthright citizenship litigation: The Trump administration's executive orders on birthright citizenship generated constitutional challenges focused primarily on the Citizenship Clause of the Fourteenth Amendment — the same provision that Slaughterhouse distinguished from the Privileges or Immunities Clause. These cases may provide context for broader Fourteenth Amendment structural arguments.
• Ongoing — Academic and judicial interest: The scholarly case for overruling Slaughterhouse continues to build, with prominent constitutional scholars across the political spectrum arguing that the Clause should be restored to something closer to its original meaning. The practical implications of such a ruling — for incorporation, economic liberties, and structural constitutional law — would be enormous, making it a high-stakes doctrinal question the Court has been cautious about reopening.