I have not argued with Hugh, here, mostly because Bart and Tom are doing an excellent job, without my 2 cents being added. Hugh however, continues to blindly cling to a history and meaning that never was, and may confuse some who aren't as well read as others here.
Therefore, I offer the following commentary.
Art. IV Sec. 2 of the U.S. Constitution:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The first clause merely guarantees that a citizen of one State, traveling to another State, will enjoy the same rights (Privileges and Immunities - see my post,
#50 for a brief, but accurate synopsis) as the citizens of that other State.
The second clause, above, provided for extradition of criminals to the State where the crime was committed.
With the passage of the 13th amendment (slavery abolished), clause 3, above, was superseded and rendered null.
Because of a Supreme Court case in 1833,
Barron v. Baltimore, it was held that the BOR had no affect upon the States. The BOR was only a prohibition upon the Federal Government. That's the way things stood for the next 35 years.
The 14th amendment (1868) changed all of that. And that is precisely the core of the current argument. The Court in
Slaughter-House, 1873, either refused to abide by the new powers of the federal government to force the States to abide by the BOR, and/or it refused to acknowledge that
Barron was overturned in a completely constitutional manner.
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.
Clause 1, Section 1 of the 14th amendment officially creates dual citizenship, much like the dual sovereignty of the States and the Central governments in the original constitution. Citizens are now both citizens of the State in which they reside, (but more importantly, for the purposes of the 14th) and citizens of the U.S., that is, the Federal Government.
Hughes arguments that U.S. citizenship existed before this is merely a
de facto1 argument. the 14th makes it (U.S. Citizenship)
de jure.2
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
Clause 2 gives primacy to U.S. citizenship over State citizenship. It is this clause that overturns the decision of
Barron and its progeny. The BOR (amendments 1 thru 8) is now in full force against the States.
However, it is this very clause, the the Majority in
Slaughter-House rendered null.
Justice Miller said:
All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
With that statement in 1873, the Majority reads out of the amendment its chief purpose: To ensure that the Privileges or Immunities of all U.S. Citizens be fully recognized and protected by the States themselves.
Hugh Damright, like Justice Miller and the Majority, refuses to recognize the implicit fact that Federalism had changed.
1. de facto: existing in fact, whether by actual law or not.
2. de jure: existing in law.