New York University Public Law and Legal Theory Working Papers

Access to the Courts as a Privilege or Immunity of National Citizenship

Risa E. Kaufman, New York University School of Law


This article makes the claim that the right to court access is uniquely federal, grounded in the Privileges or Immunities Clause of the Fourteenth Amendment.

The Privileges or Immunities Clause, dormant since the Court gave it a narrow construction in The Slaughterhouse Cases, was revived by the Court in 1999 in Saenz v. Roe. In that case, the Court affirmed that there are certain core federal rights, including the right to travel, protected under the Clause. This article posits that access to the courts for civil litigants, in some form, is also a right of national citizenship, grounded in the Privileges or Immunities Clause.

First, this article sets forth the historical and textual basis for a Privileges or Immunities based right to access the courts, investigating the extent to which court access is one of those “uniquely federal” rights protected by the Clause, consistent even with the constrained reading given to the Clause in The Slaughterhouse Cases. It then establishes a three-part inquiry to analyze a Privileges or Immunities based court access claim. Specifically: (1) Is there something uniquely federal about the access right at issue?; (2) Does the barrier preclude litigants from effectuating their federal interest in court access?; and (3) Does the government have a compelling interest in instituting or maintaining the barrier, and is the barrier narrowly tailored to achieve that interest? The article then explores the contours of the right and illustrates the case by case nature of the claim by applying the inquiry to two jurisdiction stripping statutes: the Marriage Protection Act and the waiver provision of the Real ID Act.

A Privileges or Immunities based court access right supplements the bases for the right previously recognized by the Court, as well as articulates the value that court access holds for civil litigants in the federal Constitutional system. The approach urged here opens a new dialogue in Privileges or Immunities Clause scholarship and provides an innovative approach to assessing the constitutionality of court access barriers, including federal jurisdiction stripping statutes.