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Thomas Mitchell
Privileges or immunities: a fancy way to say 'rights'
Somewhere along the way we've devolved from a society of people free to exercise our nearly unlimited rights to one in which every act and utterance requires a government permit, license or inspection -- along with a tax, fee or fine.
Get a job, gather in a public park, drive, speak on a public sidewalk, sell vegetables from a stall, build on your property or carry a gun -- you must meekly go stand in line and obtain paperwork from a government functionary.
What has changed?
The phrase "privileges and immunities" appeared in the Articles of Confederation, according to Seth Lipsky's book "The Citizen's Constitution," but extended only to "free white inhabitants." It shows up again in our operator's manual under Article IV, Section 2: "The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens of the several states."
But, as Lipsky notes, this did not apply to a free black citizen of Massachusetts traveling in the South. A memo spelling out this distinction was written by Andrew Jackson's attorney general, Roger Taney. It was Taney who, as a Supreme Court justice, penned the Dred Scott decision, putting the country on the path to civil war.
The Civil War gave us the 14th Amendment and its declaration: "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."
A mere five years later the high court again gutted "privileges and immunities" in the Slaughterhouse Cases. Louisiana set up state-run butcher shops and prohibited all others from working as butchers -- thus denying the right to engage in a specific occupation.
The court ruled the 14th Amendment applied to citizens of the nation but not to citizens of the various states.
"It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual," the court ruled.
Though the 14th Amendment was written specifically to ensure the Bill of Rights applied to the states, so freed blacks could not be denied them, the ruling turned legislative intent on its head.
For 137 years, the Privileges and Immunities Clause has lain fallow. When the 14th has been invoked, it has been with the Due Process Clause.
That's what happened in June, when the high court ruled 5-4 that Chicago could not prohibit possession of guns. Four of the majority cited the Due Process Clause, but Justice Clarence Thomas, while agreeing with the outcome, wrote a concurrence plowing up the Privileges and Immunities Clause.
Thomas lambasted the plurality for its weak-kneed stance.
"All of this is a legal fiction," he declared. "The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one."
Thomas explained that the phrase privileges and immunities, as used at the time, had the precise same meaning as rights and liberties.
"In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood -- just as the Framers of the Second Amendment did -- that the right to keep and bear arms was essential to the preservation of liberty," Thomas wrote. "The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery."
People should assert their rights, enumerated and unenumerated, to engage in commerce, to travel, to work at a profession without having to have the imprimatur of some bureaucrat's due process by doling out work cards, health cards, licenses, permits and charters.
Rights belong to the individual. They are not meted out by the stingy hand of our lords and masters at City Hall.
Thomas Mitchell is editor of the Review-Journal and writes on the role of the press and constitutional rights. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.
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"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." - James Madison, Federalist No. 45, January 26, 1788
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution." - Madison, Federalist No. 39, 1788
Though it took a while, I believe the 14th Amendment was designed to do what it has done: centralize power in the federal government, to the detriment of the states. By morphing individuals into citizens of the corporate United States, which follows maritime/mercantile law, our Constitution was effectively neutered.
Thomas Jefferson was right.....
The next big issue we face in America, with the potetnial of Revolution, is the understanding that we are not supposed to be a one rule government country of federalism but a group of states UNITED. If we are to remain a strong country we must get back to the constitutional basis of what the federal government was meant to administer. If the federal government continues(especially under progressive socialism) to expand this one rule government and displaces the states from their constitutional rights, we no longer are working under the same rules. We either fight for our rights or lose them. The states rights over federal is the last step and the most important step to individual liberty. Without our states ability for us to make individual choices based on our localized differences. We are faced with a one size fits all(really none) socialized government with no he UNITED STATES but just America.
God this is a poorly communicated story;
BUT we need to clarify that citizens have liberties and rights and we don't need government bureaucrat's permission given at a price of course
It should have been called the Bill of Prohibitions.
We will never have rights until we make clear to our rulers who they work for. Our votes are term limits and when they become rulers instead of "people", we fire them. When our representatives don't represent us, and we keep re-electing them, we deserve everything we get.
We should never forget the difference between a "right" and a "privilege".
The government does not give us rights. Look at the Bill of Rights (which is actually misnamed). NOWHERE does it say "The government gives the right of freedom of speech, or religion, or to bear arms, or . . .
No, we have those rights from birth. The Bill of Rights only precludes the federal government from trampling on those rights.
A privilege is something else. You give your teenage son the privilege of using your car on the weekend. If he abuses the privilege you revoke it. Plain and simple.
Very well said! Thank you