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Changing the Constitution
tion, which requires the States to grant the same privileges and immunities (whatever the State determines them to be) to out-of-State citizens
that it grants to its own citizens. The privileges and immunities of State
citizens, in other words, vary from State to State. They are normally associated with such activities as the privilege of engaging in a trade or
business, the use and enjoyment of State lands, and other privileges as opposed to basic fundamental rights.
In the Slaughter-House Cases (1873), the Supreme Court held that the
privileges and immunities of United States, as opposed to State, citizens
are not the same as the freedoms guaranteed by the Bill of Rights. Rather,
they include privileges which owe their existence to the Constitution,
Federal laws and treaties, such as the privilege to engage in interstate or
foreign commerce, protection on the high seas and in foreign countries,
and the privilege of voting in Federal elections. Thus limited, the privileges and immunities clause of the Fourteenth Amendment has never
had much significance.
Section 1 of the Fourteenth Amendment also provides that no State
shall deprive any person of life, liberty, or property without due process
of law. This is the Due Process Clause that has become the primary source
of civil rights litigation in today’s Federal courts.
The clause does not forbid a State from taking one’s life, liberty, or
property. It provides merely that if these rights are to be denied, they
must be denied according to the standards of due process. The concept
of due process, we are reminded, dates back to Magna Charta (1215). As
developed over time by the Anglo-American courts, the concept of due
process came to mean that the individual, particularly in a criminal trial,
was entitled to a fair trial. This meant that rich or poor, black or white,
the defendant’s trial would be conducted according to the same rules
and requirements of evidence, testimony, and the make-up of the jury.
By the end of the nineteenth century, the Supreme Court had expanded
the Due Process Clause of the Fourteenth Amendment in two ways: (1) By
looking beyond procedure to substance or the actual result of the trial. In
a series of cases involving alleged denials of economic liberty, the Court
held that the determination of whether there had been a denial of due
process did not depend upon procedure alone, but whether liberty had
been abridged in the end result. This interpretation came to be known as