Further Thoughts on the Privileges or Immunities Clause of the Fourteenth Amendment
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law- which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In a previous issue of the N.Y.U. Journal of Law & Liberty, 1 offered an interpretation of the Supreme Court's decision in the Slaughter-House Cases that both strengthened and weakened a defense of the Supreme Court's decision in Lochner v. New York. Lochner's momentous decision struck down, by a 5-to-4 vote, a statute that imposed a maximum ten hour work day on certain types of bakers. My argument, in a nutshell, was that a careful reading of Section 1 of the Fourteenth Amendment exhibited a two-tier structure in the creation of new rights against the state. That structure gave a systematic advantage to citizens over noncitizens. That point is widely overlooked, even though citizenship still resonates today as an important category, as is evident in the endless predicament of aliens with major legal difficulties, and with the huge public debates over immigration policy more generally. Citizenship is a big deal today, especially for people in the United States that don't have it, or, after naturalization, are at risk of losing it. Right now some scholars boldly suggest that children of illegal aliens should not count as citizens, despite the long established practice to the contrary. Remember also that the process of immigration and naturalization remains within the exclusive power of the United States under Article I, Section 8, clause 4. It would be odd if citizenship status did not confer some advantage over non-citizens who, after all, can only reside in the United States with the consent of our national government.
