Political equality is important to the extent that no man, or class of men, enjoy any “honors” above and beyond those of their fellow citizens. If we are to remain a free people, then any government-sanctioned hierarchy of “entitlements” must be universally banned. Much can be inferred as to the condition of human freedom today if we but simply examine the mechanisms that either permit or prohibit the acceptance of undue favors by the American people themselves.
In 1918, a PhD candidate sought to determine the post-14th Amendment status of state citizenship in his doctoral dissertation. As Howell says in his preface:
“So far as is known, no previous attempt has been made to treat the subject comprehensively, or to enumerate the rights which the citizens of the several States are entitled to enjoy, free from discriminatory legislation, by virtue of the so-called Comity Clause.”
The Comity Clause (found in Article 4, Section 2, Clause 1 of the United States Constitution) says that:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Now, what is meant by the phrase “Privileges and Immunities?” Howell explains that:
“A privilege or immunity is conferred upon any person when he is invested with a legal claim to the exercise of special or peculiar rights, authorizing him to enjoy some particular advantage or exemption…[t]he Comity Clause…was primarily intended to remove the disabilities of alienage from the citizens of every State while passing through or doing business in any of the several States.”
Right there, the “privilege and immunity” as enumerated by the Comity Clause was not intended to grant unconstitutional honors or favors upon the Citizens of each State, but in fact was designed to remove any possible alienage against the Citizens in the several States:
“The wording of the Comity Clause is obviously very general; and standing by itself, it might be construed in such a way as to obliterate state lines entirely, since the citizens of every State in the Union might be regarded as entitled by it to identically the same privileges and immunities…it is based almost entirely upon the prevalent political theory of natural rights…[t]he result has been that it is impossible to set forth any particular rights and privileges which are merely as such appurtenant to citizenship.”
Again, such alienage could potentially reinforce inequality under the law, which is exactly what the Comity Clause forbids. Remember, the Federalists expressed their concern during the constitutional ratification period that the various state governments might get jealous with each other enough to literally go to war over such matters as trading advantages. It was because of concerns like this that the Comity Clause (much like the Titles of Nobility Clause) was written into the Constitution.
Interestingly enough, Howell admits that there are two classes of citizenship. Regarding the 1873 Slaughter-House Cases (83 U.S. 36), he says:
“The case firmly established the rule that, in consequence of the duality of citizenship in this country, there exists in correspondence to each class of citizenship a separate class of privileges and immunities, both protected against state violation, but entirely distinct in their character.”
Howell also approached this topic the other way around by addressing what the implications would have been if the 1908 Twining v. New Jersey (211 U.S. 78) case had been decided the other way:
“If this opinion of the minority justices had prevailed, a change of the utmost importance would unquestionably have been introduced into the system of government in this country. The authority and independence of the States would have been diminished to a practical nullity, in that all their legislative and judicial acts would have been rendered subject to correction by the legislative and to review by the judicial branch of the National Government. With relation to the privileges and immunities of state citizenship, the result would have been the abandonment of the doctrine that the controlling factor in the application of the Comity Clause is discrimination on the part of the States, and a return to the earlier and necessarily vague idea of fundamental and inherent rights.”
If anything, this means that the Comity Clause runs counter to the 14th Amendment’s “doctrine of incorporation,” and that, I think, is the impasse we find ourselves at. We may either adhere to the original intent of the Framers pursuant to the Ninth and Tenth Amendments, or we may beg the intervention of the federal government by way of the 14th Amendment. Both the Slaughter-House and Twining decisions not only recognize state citizenship, but also the limitations placed upon the federal government even after the ratification of the 14th Amendment. In other words, the “doctrine of incorporation” itself is evidence of how incrementalization can be used to violate the Constitution.
Speaking of state citizenship, Howell also brought up the difficult question of how the “peculiar institution” of race slavery is treated with regards to the Comity Clause. He explains:
“A question of considerable interest prior to the Civil War was with respect to the extent to which negroes were protected by the Comity Clause. Slaves, being property, admittedly did not come within its provisions; but differences of opinion existed with regard to free negroes to whom the privileges of citizenship had been extended by any one State. The state courts were not at all in accord upon the matter.” [emphasis added]
Now, we can see here the origins of Jim Crow. Because of the fact that various state judges either agreed or disagreed with the infamous 1857 Dred Scott v. Sandford (60 U.S. 393) case, they would necessarily interpret the Comity Clause in directly contradictory ways, for either they considered the free Negroes to be state citizens, or not.
Did the 14th Amendment intrinsically alter the meaning of the Comity Clause, though? According to the Privileges or Immunities Clause found under Section 1, Clause 2 of the 14th Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”
Notice how this clause refers to “citizens of the United States” as opposed to the Comity Clause’s referrence to the “Citizens of each State,” which I think reinforces the two classes of citizenship. Howell says:
“A complete list of the privileges and immunities secured to the citizens of the several States has never been worked out…[t]he rights upon which the citizens of each State are entitled to share upon equal terms with the citizens of other States are, generally speaking, private or civil, as opposed to public rights; but with respect to these also there are certain limitations to the extent to which equality of treatment may be demanded.”
It would seem that the 14th Amendment’s “doctrine of incorporation” is very broad, whereas the Comity Clause is compartively specific and defined. Howell continues:
“As with other rights secured to the citizens of the several States, the right to contract and to carry on commercial transactions in general, free from discriminatory legislation, must be exercised subject to the police power of the States. This wide and ill-defined power, however, is apparently somewhat limited in this connection, both because it is capable of infringing too far upon the constitutional rights of citizens, and because in the majority of instances it necessarily comes into conflict with the transaction of interstate commerce.”
In other words, the police power of the state governments could be used to violate the liberties of state citizens because of its broadness. Howell concludes that:
“Properly speaking, therefore, there exists only one privilege or immunity of which it can be said that it may be demanded as of right by the citizens of every State in the Union. That one is equality of treatment, freedom from discriminating legislation.”
Unfortunately, the police power of the States has been used with impunity since Howell’s time, yet all the Comity Clause can do is mitigate the police power to the extent that it is used to equally oppress the Citizens of each State. I do not think such a state of affairs bodes well for American liberty.
Roger Howell’s The Privileges and Immunities of State Citizenship is an insightful look into an often ignored constitutional clause. Despite the fact that, in practice, the Comity Clause appears to have been rendered moot by the Privileges or Immunities Clause (as well as by the doctrine of incorporation), the value of the Comity Clause lies in the fact that it recognizes state citizenship. What, if any, difference this makes lies in whether asserting one’s state citizenship can be used to secure your Liberty, and that, to be fair, remains to be seen.