Fourteenth Amendment Privileges and Immunities Clause

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El Aemer El Mujaddid

November 17, 2019

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Stating that the plaintiffs could not rely on the Fourteenth Amendment’s privileges and immunities clause because it “has remained essentially moribund since Slaughter House” Presumably, these rights of national citizenship were protected against state infringement since the beginning of the Republic under the Supremacy Clause, U.S. Const. art. VI, § 2. Thus Justice Field’s charge that Slaughter-House, by refusing to federalize the protection of any of the state-created citizenship rights listed in Corfield, rendered the Fourteenth Amendment Privileges and Immunities Clause “a vain and idle enactment, which accomplished nothing.” Slaughter-House, 83 U.S. (16 Wall.) at 96 (Field, J., dissenting).Lutz v. City of York 899 F.2d 255 (3d Cir. 1990)

It could be argued that because the phrases track the 14th Amendment’s guarantees, the construction of the 14th Amendment’s language should govern the guarantees of § 1985(3). See Bellamy v. Mason’s Stores Inc., 508 F.2d 504, 507 (4th Cir. 1974). Such a conclusion may be unwarranted. First, with respect to the privileges and immunities clause, the language of § 1985(3) is broader than that contained in the 14th Amendment. Because it shields against state abridgement the “privileges or immunities of citizens of the United States”, the 14th Amendment has been held to secure only the privileges and immunities of national citizenship as opposed to state citizenship. This interpretation, in turn, has been construed to exclude “basic” rights said to attach to state citizenship from protection of the 14th Amendment. In the debate on the scope of the term “privileges and immunities,” in the proposed § 2 of the 1871 Act, Senator Trumbull sought to prove that the right to vote was not a “privilege or immunity” because women could not exercise the franchise. The burden of his argument seems to have been that women were protected in the enjoyment of rights which could properly be classified as “privileges and immunities” and therefore rights from which women were admittedly excluded could not be “privileges and immunities.” The underlying premise of this reasoning was that women are within the reach of § 2. The history of the statute thus leads us to determine that the language of § 1985(3) should not be unnaturally cropped to exclude women from its protection. PAGE 1242See e. g. Madden v. Kentucky, 309 U.S. 83, 90-91, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Hodges v. United States, 203 U.S. 1, 15-16, 27 S.Ct. 6, 51 L.Ed. 65 (1906); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875); Slaughterhouse Cases, 83 U.S. [16 Wall.] 36, 72-82, 21 L.Ed. 394 (1872). See generally United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758 (1951) (opinion of Frankfurter, J.). In contrast, the language of § 1985(3) reads, “privileges and immunities under law.” Novotny v. Great Am. Federal Sav. L. Ass’n 584 F.2d 1235 (3d Cir. 1978

 Quite apart from all of the foregoing, however, we cannot perceive how it can be held that the plaintiffs are not entitled to redress for it is clearly alleged that they have been denied equal protection of the laws under the New Jersey statute herein before referred to. The statute known as the New Jersey Civil Rights statute, R.S. 10:1-2, N.J.S.A., quoted previously, provides that all persons within the jurisdiction of New Jersey shall be entitled to full and equal accommodations, facilities and privileges at any place of public amusement. Since, as we have demonstrated, Chief of Police Stengel was acting under color of law, albeit in direct violation of R.S. 10:1-2, N.J.S.A. we entertain no doubt that against the background of the “privileges or immunities” clause of the Fourteenth Amendment construed in the light of the Slaughter-House Cases, Paul v. Virginia and Ward v. Maryland, Stengel must be held to have deprived the plaintiffs of the equal protection of the laws. Any citizen of New Jersey was entitled to use the swimming pool. It follows, therefore, that any citizen of the United States was entitled to use it. The plaintiffs are citizens of the United States as well as citizens of New York. The Slaughter-House Cases, 16 Wall. 36, 83 U.S. at pp. 78-79, 21 L.Ed. 394, and Paul v. Virginia, 8 Wall. at page 180, 19 L.Ed. 357.

Chief of Police Stengel, if the allegations of the complaint are to be believed, denied the plaintiffs equal protection of the laws and the fact that the law, the protection of which he denied to them, was a statute of the State of New Jersey rather than a statute of the United States, is immaterial. We conclude, therefore, that the complaint does state a cause of action because it alleges that civil rights guaranteed to the plaintiffs by the Fourteenth Amendment and protected by the Civil Rights Acts were invaded by Stengel, acting under color of State law. The other individual defendants and the corporate defendant should be kept in the case as parties at this stage of the proceeding. The corporate defendant can act only through its agents, the individual defendants other than Stengel, and it is alleged that the other individual defendants caused Stengel’s acts of which the plaintiffs conplain. It is probable that the status of corporate and individual liability will become much plainer when evidence is offered. See note 17, supra. What we have said disposes of the appeal. Valle v. Stengel 176 F.2d 697 (3d Cir. 1949)

The “privileges or immunities” clause of the Fourteenth Amendment is not a basis for the exercise of federal power in the protection of individual rights against state action since it protects only rights of national citizenship. It was so expressly held more than a century ago in the historic Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873), where it was stressed that the Fourteenth Amendment provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and thus ” speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.” 83 U.S. at 74. (emphasis supplied).Polite v. Diehl 507 F.2d 119 (3d Cir. 1974)

Later Supreme Court cases have consistently followed Slaughter-House, in construing the Amendment’s privilege and immunity clause to protect only interests growing out of the relationship between citizens of the United States and the national government. Polite v. Diehl 507 F.2d 119 (3d Cir. 1974)