The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868.
Text of the clause
The clause states:
Drafting and adoption
The primary author of the Privileges or Immunities Clause was Congressman John Bingham of Ohio. The common historical view is that Bingham's primary inspiration, at least for his initial prototype of this Clause, was the Privileges and Immunities Clause in Article Four of the United States Constitution, which provided that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States".
On February 3, 1866, the Joint Committee on Reconstruction (also known as the "Joint Committee of Fifteen") voted in favor of a draft constitutional amendment proposed by Bingham. The draft constitutional amendment provided:
This language closely tracked the existing language in the Privileges and Immunities Clause. On February 28, 1866, Bingham expressed his opinion that this draft language would give Congress power to "secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States", and he added that "[t]he proposition pending before the House is simply a proposition to arm the Congress…with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more…If the State laws do not interfere, those immunities follow under the Constitution".
According to Bingham, Congress lacked the power to enforce the Privileges and Immunities Clause under the original, unamended U.S. Constitution, and so he wanted the privileges and immunities of United States citizens to become a part of the Fourteenth Amendment. On May 14, 1868 he stated that the aim of the Privileges or Immunities Clause is that the constitution of a U.S. state "never should be so construed, and never should be so enforced as to deprive any citizen of the United States of the rights and privileges of a citizen of the United States within the limits of that State. The fourteenth article of the amendments of the Constitution secures this power to the Congress of the United States." As he stated on January 30, 1871 in the House Report No. 22 from the House Judiciary Committee, which he led, the Privileges or Immunities Clause was deemed necessary for the enforcement of the Privileges or Immunities Clause as an express limitation upon the powers of the States. The rights and privileges of a citizen of the United States were defined by Congress in the Civil Rights Act of 1866:
Subsequently, on April 28, 1866, the Joint Committee of Fifteen voted in favor of a second draft proposed by Congressman Bingham, which would ultimately be adopted into the Constitution. The Joint Committee no longer tracked the existing language in Article Four as the Committee had previously done. On May 10, 1866, in the closing debate on the House floor, Bingham nevertheless quoted Article IV:
The Fourteenth Amendment was approved by the House later that day. Michigan Senator Jacob M. Howard introduced the amendment in the Senate, and gave a speech in which he discussed the meaning of this clause. Howard noted that the U.S. Supreme Court had never squarely addressed the meaning of the Privileges and Immunities Clause in Article IV, which therefore made the effect of the new Privileges or Immunities Clause somewhat uncertain.
Congress gave final approval to the Privileges or Immunities Clause when the House proposed the Fourteenth Amendment to the states for ratification on June 13, 1866. There was much discussion of this proposed clause as the amendment awaited ratification by the states. For example, according to a November 15, 1866 pseudonymous letter published in the New York Times:
"[N]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.