Selective Incorporation apgoPo Excerpt of the text of the Fourteenth Amendment

The Fourteenth Amendment and the Privileges and Immunities Clause

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The Fourteenth Amendment and the Privileges and Immunities Clause

The Fourteenth Amendment was proposed by Congress to protect the rights of recently freed slaves, to overturn the three-fifths clause of the Constitution (in which slave populations were counted as three-fifths of free populations for purposes of congressional apportionment), to forbid southern insurrectionists from holding federal office, and to repudiate southern state debts incurred during the Civil War. The first section of the amendment creates a national citizenship and contains three clauses that limit the power of state governments to interfere with the rights of U.S. citizens. These clauses are known as the privilege and immunities clause, the due process clause, and the equal protection clause.

The Court had its first opportunity to use the Fourteenth Amendment to limit state power in the Slaughterhouse Cases of 1873. The cases arose from a Louisiana law granting an exclusive franchise to one large slaughterhouse to process all meat in and around the city of New Orleans. This was done to control the dumping of refuse into the Mississippi River, which was polluting the water and causing outbreaks of cholera in the city. The Court was asked to interpret the privileges and immunities clause as establishing a national right to practice one’s occupation free of state-created monopoly.

The Court ruled narrowly; the Fourteenth Amendment only banned the states from depriving blacks of equal rights as a racial group; it did not guarantee that all citizens, regardless of their race, should receive equal economic privileges by the state. Instead, the Court read the privileges & immunities clause to mean that citizens of a state may freely travel to and establish residence in another state, and are entitled to the same privileges and immunities under state law as the citizens of the state to which they travel. This decision has been characterized as “virtually emasculating the privileges and immunities clause,” spelling “the demise of the [clause] as an effective guarantor of federal liberties at the state level.”

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