Also known as: privileges and immunities of national citizenship · national privileges or immunities · Privileges or Immunities Clause · national citizenship privileges
Written by attorneys — see sources below.
A set of rights protected by the Fourteenth Amendment's Privileges or Immunities Clause against state abridgment. These rights arise from the relationship of citizens to the national government and include the right to travel throughout the United States and to receive equal treatment as newly arrived residents with respect to public benefits.
Paige Porter moved from State B to State A and applied for welfare benefits six months later. State A limited her payments to the lower amount available in State B during her first year of residency. The durational restriction penalized her exercise of the right to travel by denying equal treatment as a new resident.
Phoebe Park relocated from State C to State D and immediately sought public assistance for her family. State D imposed a one-year residency requirement before granting full benefits at the local level. The policy burdened her national right to travel by conditioning equal access on duration of stay.
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View casePreston Pratt faced trial in a state court where non-unanimous verdicts were permitted. He argued that the Privileges or Immunities Clause required the full protection of national citizenship rights in criminal proceedings. The claim invoked the clause as a vehicle for incorporating fundamental trial protections.
Evangelisto Ramos was charged with a serious criminal offense and tried in a Louisiana state court. At trial, the jury deliberated and returned a verdict of guilty by a vote of ten to two. Under Louisiana law at the time, non-unanimous verdicts were permitted in criminal cases, and only Louisiana and Oregon allowed such verdicts among the states. Ramos's conviction was upheld under the authority of Apodaca v. Oregon, in which the Supreme Court had held that the Sixth Amendment requires unanimous verdicts in federal criminal trials but permits non-unanimous verdicts in state trials. Subsequently, Louisiana voters approved a constitutional amendment requiring unanimous jury verdicts for criminal convictions. Ramos then challenged his conviction on direct review, arguing that the Sixth Amendment, as incorporated against the states, mandates unanimous verdicts in state criminal trials for serious offenses. The Louisiana Supreme Court rejected Ramos's argument, relying on the precedent established in Apodaca. The case reached the United States Supreme Court, which granted certiorari to consider whether Apodaca should be overruled. On April 20, 2020, the Supreme Court reversed the judgment of the Louisiana Supreme Court and remanded the case for further proceedings.
View casePilar Pena refused to answer questions during a state investigation into her business dealings. State officials sought to compel testimony by arguing that the privilege against self-incrimination was not among the rights of national citizenship. The dispute turned on whether the clause extended that protection against state action.
The plaintiff in error was indicted by the grand jury of Monmouth County, New Jersey, for the crime of having exhibited a false paper to the auditor of the township of Neptune, with intent to defraud the township. The indictment was of the second degree, setting forth in two counts the same offense in different language. The plaintiff in error was arraigned and pleaded not guilty. At the trial he was a witness in his own behalf. He was asked on cross-examination, and in the hearing of the jury, whether he had been convicted of any offense. To this question he made no reply. The judge instructed the jury that they might draw an inference of guilt from his silence. The plaintiff in error was convicted, and the judgment of conviction was affirmed by the Court of Errors and Appeals. After the judgment of the highest court of the State had been entered, the case was brought here by writ of error. It is assumed, in respect of each of the two defendants, that the jury were instructed that they might draw an unfavorable inference against him from his failure to testify, where it was within his power, in denial of the evidence which tended to incriminate him.
View caseParker Phillips challenged a federal sentencing guideline as an improper delegation of legislative power. He contended that the Privileges or Immunities Clause limited Congress's ability to transfer core national citizenship protections to administrative bodies. The argument framed the clause as constraining the scope of federal authority.
In 2006 Congress enacted the Sex Offender Registration and Notification Act. The statute requires sex offenders to register in the jurisdictions where they live, work, and attend school. It also directs the Attorney General to specify the applicability of its requirements to offenders convicted before the Act’s enactment and to prescribe rules for their registration. At the time of enactment the nation’s population of sex offenders exceeded 500,000, and Congress left the treatment of these pre-Act offenders to the Attorney General after concluding that immediate application would impose costly burdens on states and localities. The Attorney General first left pre-Act offenders unregulated for six months after enactment. An interim rule issued in 2007 then required all pre-Act offenders to follow the same registration rules as post-Act offenders. Subsequent Attorneys General issued varying guidelines, with one directing states to register only some pre-Act offenders, another requiring registration only for those convicted of a new felony after enactment, and still others differing on whether pre-Act offenders could receive credit for time already spent in the community. Herman Gundy pleaded guilty in 2005 to possessing child pornography. He was released from prison five years later. He was arrested in 2012 for failing to register as a sex offender under the rules then prescribed for pre-Act offenders and faced an additional ten-year prison term. Gundy was convicted in 2012. He argued in the district court that Congress had unconstitutionally delegated legislative power when it authorized the Attorney General to specify the applicability of SORNA’s requirements. The district court rejected the argument. The Second Circuit affirmed, relying on its precedent that SORNA does not unconstitutionally delegate legislative authority. The Supreme Court granted certiorari.
View casePhilip Powell, an eighteen-year-old citizen, sought to register to vote in a state election. State officials denied the application under a law setting the minimum age at twenty-one. The challenge asserted that the right to vote as an incident of national citizenship barred the age-based exclusion.
In 1970 Congress enacted the Voting Rights Act Amendments, Pub. L. 91-285. By its terms the Act lowered the minimum voting age from 21 to 18 in both state and federal elections. It also barred the use of literacy tests in all elections for a five-year period based on findings of racial discrimination. The Act eliminated durational residency requirements while providing uniform absentee voting rules for presidential and vice-presidential elections. Oregon, Texas, Arizona, and Idaho resisted compliance. Oregon and Texas sought to enjoin the 18-year-old voting provisions. The United States sought orders requiring Arizona and Idaho to conform their laws to the Act. Arizona required voters to be 21 and to read the Constitution in English and write their names. Idaho imposed a 60-day state residency requirement for presidential elections along with other restrictions. The suits were argued on October 19, 1970. The record before Congress included evidence of past discriminatory use of literacy tests, statistics showing lower minority registration, and data on educational disparities from prior segregation. Congress also received testimony that 18-year-olds had assumed military service responsibilities and that Georgia and Kentucky had permitted younger voters without difficulty. The Court announced its judgments on December 21, 1970. Separate opinions addressed the three provisions and their application to federal versus state elections.
View caseThe clause protects rights that arise from the relationship of citizens to the national government, such as the right to travel throughout the United States and to receive equal treatment upon establishing residency in a new state. These rights receive absolute protection against state abridgment. The clause does not incorporate the Bill of Rights wholesale against the states.
The clause protects the right of newly arrived residents to be treated the same as longer-term residents with respect to public benefits. A state law imposing a one-year waiting period or limiting benefits to the level available in the former state violates this protection. The right to travel is a core privilege of national citizenship that states may not penalize through such restrictions.
Supporting sources
The clause has not been interpreted to incorporate the Bill of Rights wholesale. Early cases such as Twining rejected its use for that purpose, and modern doctrine relies primarily on the Due Process Clause for incorporation. The clause instead safeguards a narrower set of rights tied directly to national citizenship.
…— Chief Justice Rehnquist (with whom Justice Thomas joins) The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment. In my view, the majority’s analysis is flawed in several respects. First, the Citizenship Clause does not support the broad right to travel that the majority…