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       “Privileges or Immunities”

      No State shall . . . abridge the privileges or immunities of citizens of the United States

      THE “privileges or immunities” clause was the central provision of the Amendment’s §1, and the key to its meaning is furnished by the immediately preceding Civil Rights Act of 1866,¹ which, all are agreed, it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their “life, liberty, and property” —no more. For the framers those words did not have the sprawling connotations later given them by the Court but, instead, restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to “fundamental rights,” “life, liberty, and property,” and a few historical comments will show the ties between the two.

      At Locke’s hands, said Edward S. Corwin, natural law dissolves “into the rights of ‘life, liberty, and estate,’ ” a derivation noted by Francis Bacon. The trinity was reiterated by Sir Matthew Hale² and sharply etched by Blackstone in his chapter on “The Absolute Rights of Individuals”:

      these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a person’s legal and uninterrupted enjoyment of his life, his limbs . . . II. . . . the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless by due course of law . . . III. The third absolute right, inherent in every Englishman . . . of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.³

      For Blackstone “due course of law” and the “laws of the land” did not enlarge, they did not add to, the “absolute rights” of an Englishman, but rather marked the sole means whereby those rights might be diminished. These “absolute,” “fundamental” rights of “life, liberty, and property” referred, in sum, to (1) personal security; (2) freedom of locomotion; and (3) ownership and disposition of property.

      On this side of the water the opening Resolve of the First Continental Congress affirmed that the Colonists “by the immutable laws of nature, the principles of the British Constitution . . . ‘are entitled to life, liberty, and property.” ⁴ Blackstone, whose work was widely circulated in the Colonies, was cited in Federalist No. 84 and paraphrased by Kent.⁵ Instead of the “absolute rights” of “life, liberty, and property” the Framers resorted to the terminology of Article IV, §2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” These words were construed “confiningly” by Justice Bushrod Washington on circuit, in Corfield v. Coryell, as comprising “fundamental” rights such as freedom of movement, freedom from discriminatory taxes and impositions, ownership of property, access to the courts.⁶

      For the “principal spokesmen” and theorists of the abolitionist movement, Lysander Spooner and Joel Tiffany, “privileges and immunities” meant that a citizen has a right “to full and ample protection in the enjoyment of his personal security, personal liberty, and private property . . . protection against oppression . . . against lawless violence.” ⁷ This echoes Blackstone’s formulation and in large part anticipates the privileges embodied in the Civil Rights Act of 1866. The sponsors of the Act, Senator Lyman Trumbull and Representative James F. Wilson, chairmen respectively of the Senate and House Judiciary committees, cited Blackstone, Kent, and Coryell, as did others.⁸ And John A. Bingham, draftsman of the Amendment, stated that he had drawn the “privileges or immunities” clause of the Fourteenth Amendment from Article IV, §2.⁹

       The Civil Rights Act of 1866

      The meaning and scope of the Fourteenth Amendment are greatly illuminated by the debates in the 39th Congress on the antecedent Civil Rights Act of 1866. As Charles Fairman stated, “over and over in this debate [on the Amendment] the correspondence between Section One of the Amendment and the Civil Rights Act is noted. The provisions of the one are treated as though they were essentially identical with those of the other.” ¹⁰ George R. Latham of West Virginia, for example, stated that “the ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” ¹¹ In fact, the Amendment was designed to “ constitutionalize ” the Act,¹² that is, to “embody” it in the Constitution so as to remove doubt as to its constitutionality and to place it beyond the power of a later Congress to repeal. An ardent advocate of an abolitionist reading of the Amendment, Howard Jay Graham, stated that “virtually every speaker in the debates on the Fourteenth Amendment—Republican and Democrat alike—said or agreed that the Amendment was designed to embody or incorporate the Civil Rights Act.” ¹³

      Section 1 of the Civil Rights Bill provided in pertinent part,

      That there shall be no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full

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