If you are a lawyer or a law student, it’s likely that you’ve seen this video where a naive future law student talks with a jaded law firm lawyer about why she wants to go to law school. The video went viral and has well over 1.5 million hits. My favorite line (and my 6 year old son’s favorite line too) is when the future law student says, totally out of the blue, “I love the privileges and immunities clause” (it’s at about the 56 second point). The clause she’s referring to was added to the Constitution by the Fourteenth Amendment in 1868 and says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It appears right before the Due Process Clause and the Equal Protection Clause, two giants of constitutional law.
The Privileges and Immunities Clause is an odd clause of sorts. It’s barely played any role at all in actual judicial decisions or doctrine, although scholars talk about it a lot more than they talk about other odd clauses like the Weights and Measures Clause (one of my favorites). The clause almost played an important role in “incorporating” the bill of rights protections (like freedom of speech, free exercise of religion, etc.) against the states. Prior to the fourteenth amendment, these protections applied only to the federal government. The Supreme Court, however, in the famous Slaughter-House Cases of 1873, held that the privileges and immunities clause did not work to apply the bill of rights protections to the states. The clause then fell basically dormant until 1999, when the Supreme Court revived it for a minute in Saenz v. Doe, which struck down California’s attempt to limit welfare benefits for new state residents to the amount they had received from the state they had moved from. The Court held that the P&I Clause protected the right of citizens to travel between states, and that the California law had violated that right, and thus the clause. Other than that, though, the P&I Clause has never really lived up to its potential.
Later on, the Court incorporated most of the rights in the Bill of Rights through the Due Process Clause, rather than through the P&I Clause.
Incidentally, here’s my video take off on the so you want to go to law school video. You’ll noticed it hasn’t exactly gone viral yet.