Vol. 13 No. 8 (August 2003)

PRIVILEGES AND IMMUNITIES: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION by David Skillen Bogen. Westport: Praeger, 2003.  171pp.  Hardcover $64.95.  ISBN: 0-313-31347-4.

Reviewed by Christopher Shortell, Department of Political Science, University of California, San Diego.  Email: cshortell@ucsd.edu .

PRIVILEGES AND IMMUNITIES: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION is part of a series that is designed to provide extensive coverage of particular sections or ideas in the United States Constitution.  This book is, as the title suggests, more of a reference work than one that sets out a particular argument or theory.  It covers the privileges and immunities clauses in both Article IV and the Fourteenth Amendment, primarily from an historical perspective.  While providing a thorough review of the legal doctrine and disputes surrounding privileges and immunities, the clauses have only a limited effect in current law, and Bogen has a difficult task making them into something more than an historical footnote.

The book is divided into two substantive sections, “History” and “Analysis,” book-ended by a very brief introduction and conclusion.  Bogen begins with a discussion of what the colonists understood privileges and immunities to be and the impact of that understanding on the adoption of the Articles of Confederation and the Constitution.  In a theme he returns to throughout the book, Bogen highlights the tension between interpretations of privileges and immunities as fundamental rights and as specific legal rights identified elsewhere.  The lack of consensus on that question at the Constitutional Convention set up the uncertainty that followed.  After the adoption of the Constitution, the book’s coverage of pre-Civil War history is limited primarily to two cases: CORFIELD v. CORYELL (1823) and DRED SCOTT v. SANDFORD (1857).  In CORFIELD, Justice Bushrod Washington appeared to adopt the fundamental rights approach, although his opinion “was not a model of clarity” (p.25).  In DRED SCOTT, Chief Justice Roger Taney also vaguely acknowledged the fundamental rights inherent in the privileges and immunities clause of Article IV.  He limited its effects on slavery, however, by focusing on the status of citizenship for African-Americans and leaving open the question of what rights would actually be protected by the clause.

The book’s examination of the adoption of the Fourteenth Amendment provides a useful and comprehensive study of the Congressional debates.  Bogen engages the primary sources and links the difficulty in determining original intent to the long-standing uncertainty surrounding the concept of privileges and immunities.  He concludes that the 39th Congress “understood they were placing a guarantee of fundamental rights in the document” (p.51).  They did not, however, define those privileges and immunities clearly and could not agree on what fundamental rights were included.  Voting, for example, was explicitly rejected as a fundamental right that would be protected by privileges and immunities.

The “History” section ends somewhat abruptly following the adoption of the Fourteenth Amendment, leaving the “Analysis” section to cover the SLAUGHTER-HOUSE CASES (1873) and the twentieth century.  The “Analysis” chapter is organized around a thematic approach rather than an historical one.  Bogen begins with the Article IV clause and identifies the core issues with which past cases have dealt, including the restriction of political power to residents, equality in taxation, and access to courts.  In these cases, though, privileges and immunities are either repeatedly set aside by the Court in favor of some other doctrine or reduced to deferential tests of justification for differential treatment.  In the end, the reader is left with a sense of the emptiness in the Article IV clause.  Attempts to expand its reach fail time and again as it has largely been superceded by due process claims.

Bogen then turns to the privileges and immunities clause of the Fourteenth Amendment.  His review demonstrates that it has suffered a similar fate.  Justice Samuel Miller’s opinion in the SLAUGHTER-HOUSE CASES made reliance on privileges and immunities for the protection of fundamental rights extremely difficult.  Justice Miller rejected the fundamental rights notion of privileges and immunities and limited the clause’s application to protection of the rights of federal citizens.  While the privileges and immunities clause could have been used to incorporate the Bill of Rights, Bogen traces the transition to an emphasis on due process in the wake of Justice Miller’s opinion.  The aptly titled heading “Rejection by Silence and Dicta” captures the cold reception privileges and immunities have received.

The one federal right that does seem to carry weight is the right to travel, which Bogen covers towards the end of the section.  The Court, in SHAPIRO v. THOMPSON (1969), combined the right to travel with equal protection to strike down residency durational requirements for welfare benefits.  In SAENZ v. ROE (1999), the Court finally explicitly located the source of the right to travel in the privileges and immunities clause, giving the clause some meaningful traction.  Bogen concludes with a bleak assessment of the future of privileges and immunities, barring a sudden legal interest in international human rights.  The bibliographic essay at the end, comprised almost exclusively of law review articles, is a useful resource.

Despite the extensive information the author provides, the book’s difficult format is a drawback.  It essentially has only two chapters, each well over sixty pages long.  While there are a number of headings and subheadings, the book would have benefited from shorter chapters that provided summation and related back to some general themes and ideas. 

There is a sense that privileges and immunities offered a desirable alternative to due process as a source for the protection of many rights at the time of the adoption of the Fourteenth Amendment.  The author acknowledges, though, that replacing due process now would lead to extensive disarray and undesirable side effects.  Bogen concludes that “the privileges and immunities clause of the Fourteenth Amendment has no current role, because the tasks for which it was designed are being performed by the due process clause” (pp.147-148).  This book is almost certainly the most comprehensive source of information on the privileges and immunities clauses.  Given its format and content, though, it is more suited for use as a research resource than in the classroom at either the undergraduate or graduate level. 



CORFIELD v. CORYELL, 6 F.Cas. 546 (Cir. Ct. E.D. Pa. 1823).

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

SAENZ v. ROE, 526 U.S. 489 (1999).

SHAPIRO V. THOMPSON, 394 U.S. 618 (1969).


Copyright 2003 by the author, Christopher Shortell.