Still Searching for the Judicial “Holy Grail”

When I studied Constitutional Law some 40 years ago, the Slaughter-House Cases (1873) warranted scarcely a footnote. The scholarly consensus—including Raoul Berger’s Government by Judiciary (1977)—was that the “privileges or immunities” clause of the 14th Amendment had properly (or at least definitively) been relegated into oblivion, and hardly anyone mourned its demise. Instead, most academic interest focused on other language from the 14th Amendment—in particular the terms “due process” and “equal protection”—and on the Supreme Court’s mischievous use of those provisions to constrain the states’ exercise of their police powers, through the “incorporation” doctrine and “strict scrutiny” analysis.

No one, save perhaps a few libertarians (notably Roger Pilon), regarded the Slaughter-House dissenters as having made a persuasive case. As the majority noted, the dissenters’ open-ended interpretation—a harbinger of the Lochner era yet to come—would make the Court a “perpetual censor upon all legislation of the States,” effectively negating the concept of federalism and making federal judges (who were still regarded with suspicion in the wake of Dred Scott) the ultimate arbiters of public policy throughout the nation. This conclusion—in 1873 and until fairly recently—was considered preposterous.

Well into the 1980s, under the spell of what is now denigrated as the “old” originalism,” most conservative scholars shared the sentiment of University of Texas law professor Lino Graglia that the “privileges or immunities” clause is “one of those blessed constitutional provisions that by being ignored has not caused a single bit of trouble.”[1] Not terribly long ago, incorporation was openly questioned, even if many skeptics conceded that stare decisis made doctrinal retreat impossible. Only outliers in the legal academy were concerned that the Slaughter-House Cases had rendered the clause “a vain and idle enactment,” as Justice Field lamented in his dissent. That was then.

Originalists have gotten “woke,” and–now styling themselves “new” originalists–have acquired an irresistible fascination for the once-moribund clause, and a renewed interest in exhuming a precedent that has mouldered in the jurisprudential ground for almost 150 years.  Robert Bork pronounced that the clause “has been a mystery since its adoption and, in consequence has, quite properly, remained a dead letter.” [2] “New” originalists bristle at Bork’s assessment, urging ever more creative interpretations of the words “privileges or immunities” in an attempt to revitalize a clause that has become what Justice Scalia derisively called the “darling of the professoriate.” [3]

Perhaps no provision of the Constitution has received as much scholarly attention in recent years as the “privileges or immunities” clause, with a feverish pursuit to revisit—and overturn—the Slaughter-House Cases.

When I made light of this trend in a recent piece in American Greatness, I was surprised by the intensity of the reaction, from both originalist legal scholars and West Coast Straussians—both camps ostensibly conservative but increasingly resembling libertarians who favor an activist role for the judiciary.  I responded to Mike Rappaport in this space (“The Many Flavors of Originalism”), which triggered replies from both Rappaport and his co-author, John McGinnis.  Rappaport followed up with a full-blown critique of the Slaughter-House Cases, “The Unbearable Wrongness of Slaughterhouse.”  The reaction of Harry Jaffa’s disciples (here and here) was predictable, given their wont for endless disputation, but the movement in the originalist camp—from “old” to “new”—warrants examination.  

I am not the first—or only—dissenter on this subject, and commend the fine work done by the Hon. Stephen Markman, most notably his 2016 report for the Heritage Foundation, entitled “The ‘Judicial Holy Grail’: Why the Supreme Court Should Not Revisit the Privileges or Immunities Clause,” with which I agree and from which I freely borrow. Markman bluntly—but accurately—diagnoses the academy’s infatuation with the clause:

The continuing debate over the meaning of the clause is largely between factions of the “professoriate,” many of whom seem bent on conferring meanings to the clause that were never even remotely contemplated by its framers and ratifiers. The common result of these interpretations would be to further centralize and strengthen governmental power—in particular, that of the federal government at the expense of state governments and that of the judiciary at the expense of more accountable and representative branches of government.

To address my critics, I pose three questions. First, have scholars now “solved” the riddle of the clause? The answer is no (as Bork concluded long ago).  The Heritage Foundation’s Guide to the Constitution states that “there is no agreement concerning a single original meaning of the Privileges or Immunities Clause.” [4] Markman concurs, as do others. [5]  Rappaport questions whether I have read all the law review articles. I have not. [6] What I do know is that, despite the close attention of leading originalist scholars, past and present (such as Charles Fairman, Raoul Berger, David Currie, Philip Hamburger, John Harrison, Kevin Newsom, William Nelson, Michael Kent Curtis, Kurt Lash, and Michael Stokes Paulsen), no consensus has emerged from the scores of books and articles. Nor does such a consensus appear to be forthcoming.

When scholars reach such greatly disparate conclusions regarding the same inquiry, as Rappaport concedes, common sense suggests that there is no clear answer, not that there are “various alternatives” (some of which are “very plausible”). A fanciful theory is not an answer; it is more likely wishful thinking. The fact that no one can agree on the clause’s meaning strongly suggests it is indeed a mystery.

Second, should judges guess at the meaning of constitutional provisions when they are highly disputed (or even inscrutable)? Bork thought not. He famously said that “A provision whose meaning cannot be ascertained is precisely like a provision that is…obliterated past deciphering by an ink blot.” [7] Rappaport insists that there must be something under the ink blot, but Bork anticipated this objection: “There are, of course, academics who bemoan [the Slaughter-House Cases] and urge the Court to revive privileges and immunities, apparently on the theory that every part of the Constitution must be used, even if that means judges are writing their own Constitution.” [8]

The clause is not so much an ink blot as a Rorschach test—it means different things to different people based on their predilections and desires. Rappaport is puzzled that I can’t squint and find something in there I like—perhaps Harrison, or Lash, would be congenial? Rappaport is upset that I won’t play along with the “new” originalist gambit that “virtually everyone” is engaged in: “In the end, [Pulliam’s] position would be more convincing if he adopted one of these theories.” Pick a card—any card. Without clear textual or historical direction, judges who lack the discipline of restraint aren’t just guessing, they, too, can pick a card and find what suits them.

Third, is it consistent with judicial restraint to revisit a Supreme Court precedent a century and a half old because of a flurry of recent law review articles? Rappaport and McGinnis think so. I disagree. Not all scholars concur that the Slaughter-House Cases were wrongly decided, let alone “unbearably” so. [9] Many who disagree with the majority’s reasoning concur that the holding was correct, or at least that Justice Samuel Miller’s majority opinion was preferable to the egregiously-mistaken dissent. Depending on the interpretation du jour, some Slaughter-House critics acknowledge that—in the intervening 150 years—the Court has corrected the majority’s alleged error through other means: incorporation of the Bill of Rights via the due process clause, the recognition of “fundamental rights,” application of the equal protection clause, and so forth. Markman rightly asks: “Have not compensating interpretations of other provisions of the Fourteenth Amendment largely rendered irrelevant the missteps of Slaughterhouse?” If the alleged problem has been fixed, albeit on the “wrong” doctrinal grounds, is it really necessary to revisit a long-settled precedent?

Let’s be honest. The reason some “new” originalists want to exhume the “privileges or immunities” clause is that it represents fresh material for their cottage industry of increasingly esoteric constitutional theorizing. Bork understood this in The Tempting of America, and Markman put an even finer point on it:

The Privileges or Immunities Clause offers an opportunity to provide new meaning to the Constitution—not, to be sure, the meaning originally intended by its framers, for that has already been achieved by different means, but a genuinely new meaning and all without the bother of a new constitutional amendment. The purpose of revisiting the Privileges or Immunities Clause is to place something both “new” and “more” into the Constitution. It is to fill what is viewed as an empty vessel of a provision with something of consequence. It is to facilitate the attainment of the judicial “holy grail.”  

In other words, the entire inspiration for this project is an unseemly eagerness to write on the blank slate that the clause represents. In this case, traditional precedent rules—do not overrule existing precedent absent clear error and for compelling reasons—do in fact restrain judicial activism. [10] Precedents that are 150 years old should be overturned only for the most compelling reasons, and the muddled disagreement with the Slaughter-House Cases does not rise to that level.

To paraphrase Rappaport, if one wants to pretend that the privileges or immunities clause has a clear, ascertainable meaning, one can certainly do it. But that ain’t originalism. It is simply the latest gloss on the living Constitution—the eternal quest for the judicial holy grail.

[1] Lino Graglia, “Do We Have an Unwritten Constitution? The Privileges or Immunities Clause of the Fourteenth Amendment,” 12 Harvard Journal of Law & Public Policy 83, 83 (1989).

[2] Robert H. Bork, The Tempting of America 166 (1990).

[3] Nelson Lund, “Two Faces of Judicial Restraint (or Are There More?) in McDonald v. City of Chicago,” 63 Florida Law Review 487, 511 (2011). Bork’s and Scalia’s disapproving attitude toward the “new” originalists’ current obsession may explain why these legendary jurists have been pushed aside (in the words of USD’s Steven Smith) “with a mixture of filial respect and condescending embarrassment.” Smith’s unpublished paper is entitled “The Old-Time Originalism.”  Rappaport’s remark that “we have come a long way since Bork looked at these matters” is an example of this unwarranted disdain.

[4] David F. Forte & Matthew Spalding (editors), The Heritage Guide to the Constitution 501 (2d ed. 2014).

[5] See., e.g., David S. Bogen, “Slaughter-House Five: Views of the Case,” 55 Hastings Law Journal 333, 384 (2003) (“The intent of the framers remains a slippery concept with many plausible accounts competing.”).

[6] As if the “original public meaning” of words written over 150 years ago is just now being divined—like an epiphany—by the professoriate. Nor have I read every JFK assassination conspiracy theory, but having reviewed the Warren Commission Report and some supporting commentary, I reasonably conclude that Lee Harvey Oswald acted alone. The growing volume of conspiracy theories does not substitute for credible evidence.

[7] Bork, supra note 2, at 166.

[8] Id. (emphasis added).

[9] See, e.g., Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 190 (2015) (decision was “probably correct”); Bogen, supra note 5, at 336 (“the majority acted correctly”).  

[10] Moreover, the fact that libertarians have been fantasizing for decades about the cornucopia of judicially-created “unenumerated rights” the clause would unleash cannot be ignored.

Reader Discussion

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on April 09, 2019 at 13:11:08 pm

It seems to me that what is missing from these essays on slaughterhouse, and consequently P&I, is a definition of (approximately) Privileges and Immunities. We have told that P&I is nothing more than the guarantees contained with the first eight amendments (Lash). Bushrod Washington outlines a somewhat more extensive list of such privileges and immunities in Corfeld. Senator Bingham provides another list; while others have asserted that these are simply too numerous to list.

Yet, without some limiting principle, without some defined outline of what constitutes a privilege or an immunity, and more specifically whether the States and the Central Government provide, or OUGHT to provide differing guarantees we are left arguing in either a vacuum or, perhaps more aptly, in a whirlwind.

Pulliam is rightly concerned that P&I (prospective) jurisprudence could, indeed would, conceivably lead to an endless proliferation of newly divined rights, privileges and protections IF, as is the case, definitions and limits are NOT TO BE HAD. One need only look to recent jurisprudence to accept as valid Mark's concerns.

Others assert that P&I is not simply surplusage; that they constitute, or were intended to constitute additional protections to the citizenry against governmental overreach. They also are correct. Yet, they suffer the same infirmity as does the position of Pulliam. A power and / or a right, ill defined is ill employed and quite susceptible to abuse. Moreover, given the tendency of the Judicial to arrogate to itself "privileges" specifically delegated to the Legislative, i.e. the "legislating" of new rights / limits, etc the latter position is perhaps the more dangerous, and one that may lead to a further diminution of State powers and a further aggregation of central government powers, albeit in the guise of constitutional interpretation and construction.

Recently, Ed Erler, of Claremont, took to the pages of American Greatness Blog to critique Mark's position on Slaughterhouse and P&I. Erler, as do other Straussians, asserted that the 'Font of Constitutional Authority" (essays title) is to be found in the Declaration of Independence and that COTUS MUST be read / interpreted with the guiding light of that "Golden Apple."

Erler is correct - UP TO A POINT! Erler sees COTUS as infused with the "spirit" of the DOI AND then argues that jurists are obligated to interpret / render COTUS in both the spirit and the terms of the DOI.

This is problematical. Erler would appear to forget that in Lincolnian terminology that the "Golden Apple" was contained with a "Frame of Silver" -( a somewhat baser metal, BTW). Putting aside the metallurgy, what Erler fails to observe is that the Constitution is a COMPROMISE between the aspirational thrust / intent of the DOI and the practical realities of forming a Republican, not a utopian government. Look only to the slave clauses to recognize that compromises to the DOI were both made and were intended. From this, it may give one pause to consider all of COTUS as being "inspirited" with the full panoply of rights, privileges professed in the DOI.

Yet, Erler is correct in assigning to the DOI a rather high level of importance, both philosophical and rhetorical, in both the theory and practice of the American system of governance. But he goes one step too far. Indeed, considering that Erler predicates his DOI support on the notion of consent, he doubly errs when "inspiriting" COTUS with the promises of the DOI.

The DOI, I believe, was intended as an aspirational guide, and admittedly in some limited sense, as a structural guide to the Republic. BUT, it was intended to "inspirit" the Legislative which would craft laws and regulations that were, to the best of their abilities and understanding, consistent with the premises (and promises) of the DOI.

Yet, let it be observed that Legislative products are, by necessity, in a compound Republic, the outcome of compromise. There is no escaping this simple fact and no more need be said of this practice. It is politics, properly understood. It is the distinct duty of the Legislative to make such decisions, such compromises. Moreover, such decisions are presumed to have been made with the consent of the people. Recall, that per madison, the Legislative was to be the "closest to the people", i.e. more responsive to the *consent of the people*, with one House more so than the other - but both theoretically dependent upon consent.

Now comes Erler, and others, who would have us refuse to recognize the compromises made by the Legislative, with the consent of the people (in theory again, no verdict is offered on our current malfunctions) and instead arrogate to the Judicial, the Branch least responsive to consent, the power, the right to DISREGARD and / or ignore the political compromises made by the Legislative when crafting new Laws.

In effect, to permit this is to DISAVOW politics and instead place our reliance upon some small number of Black Robed "diviners" of original intent / meaning and the propriety of *political* compromise, especially when reviewing the limits and extent of certain liberties, rights and restrictions thereto.

Again, Pulliam rightly fears the effects of such an abdication of political power by the Legislative and the consequent aggrandizement of the Judicial.

Yet, neither side may advance their position unless and UNTIL some concrete meaning is given to the phrase "Privileges and Immunities." How can Pulliam claim that a newly minted P&I by a Jurist is illegitimate if we do not know what any and all P&I's are? How can Rappaport (and others) claim one is proper if we have no conception, either historical or philosophical of what P&I is?

I would argue that ONCE we make a historical study, not unlike what SCOTUS has recently done with 2nd and 8th amendment cases to determine what was understood as certain rights, what was historically protected, we will continue to argue within a whirlwind. with categories, suppositions and worst of all juridical decisions violently colliding with one another.

Is there an academic out there prepared to undetake such a task.

My own thinking is that were we to make determinable (as Devin Watkins (?) suggests) the limits of P&I from a historical sense, the danger of a "boundless" P&I will be greatly reduced, as jurists would have to contend with historical / legal evidence. Curiously, such an understanding would perhaps helped to resuscitate, not just P&I, BUT also State Police powers doctrine / practice as it may become clear just what a State may offer or NOT offer in the way of P&I versus the Federal Government. Consequently, with a renewed sense of State P&I, we amy also see a concomitant resiscitation of Federalism. Hey, isn't that what Mr Madison and the Boys wanted.

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on April 09, 2019 at 21:26:23 pm


I would suggest another alternative--the Privileges and Immunities Clause does not, never did, and was never intended to refer to specific protections. That is the main reason why there is a controversy.

There are many situations in which a general description is more likely to be correct than a more specific one. If a person were to break a hip, the injury might me referred to as "an intertrochanteric fracture," or a "femoral neck fracture" or a" sub-traochanteric fracture," or any of about a dozen other descriptions. However, if one has a femoral neck fracture, it is innacurate to refer to it as a subtrochanteric fracture. The general description, "femur fracture, "while lacking detail, is more correct. Two people may disagree widely on specific issues, yet agree to a general proposition. For example, one move critic may think that a movie was well written and directed, but with poor acting, while another may have the opposite view: it was the acting that saved the movie. Even though they may have diametrically opposed specific views, they agree on the general proposition that the movie was worth seeing. In the policy area, one politician may blame a budget deficit on insufficient taxes, another on excessive spending. Even though they disagree on specifics, they agree with the more general proposition that there is a budget problem.

There are certain situation where there is a benefit to announcing a general proposition, even though there is dispute as to the details. Such may be the case with the privileges and immunities clause. There may never have been, and may never be any idea as to what the privileges and immunities of citizenship are, but is worth declaring that they are protected under the Constitution. In other words, announcing that priivileges and immunities are things has a purpose beyond identifying specific protections or sources of protections.

It may have been the case that the people who produced the privileges and immunities clause had no agreement on what it was that the clause protected, but thought it worthwhile to announce that there were such things to be protected anyway. So why do this? My own opinion is that the answer is the relationship between the privileges and immunities clause and the equal protection clause. The purpose of these was to give an operational affirmation that there shall be no classes of citizenship. The reason that the privileges and immunities clause was included in addition to the equal protection clause, is that subjects in a monarchy might also have equal protection of the ruler's laws.

The privilges and immunities clause is a way of affirming that citizens not only have the protection of government, but also have protection from government. This was needed because of the question of whether it was the case that citizens needed protection of the states against the federal government, or the other way around. Coming as it did in proximity to the Civil War, there was a sense that the Federal Government did have a role in protecting citizens against discriminatory State laws. It is also likely that other supporters of the clause thought the opposite: that protection was needed against the Federal government. Thus, the need to declare a general principle, without the necessity for details that were, and are, the subject of contention, and which were never understood to refer to specific protections.

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on April 10, 2019 at 08:07:20 am

"“there is no agreement concerning a single original meaning of the Privileges or Immunities Clause.” [4] "

I think there is no single comprehensive agreement on its original meaning . However, there are certain lowest common denominator understandings: Here is one. If we are to incorporate the Bill of Rights to apply against state and local governments, the P or I Clause, not "due process" is the place where it was understood it would be done.

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Jonathan Rowe
on April 10, 2019 at 08:16:41 am

By the way, Walter Berns and now I think Matthew Franck have figured out a way to revive the P or I on honest originalist grounds (that is, this really is the way the framers understood it would go down) but also not have federal courts be “perpetual censor upon all legislation of the States."

I think the problem here is that originalism is concerned more so with getting it right on originalist principles than avoiding ridiculous results. And the “perpetual censor upon all legislation of the States" is more about avoiding ridiculous results.

I think narrative is: The Equal Protection and Due Process Clauses were NOT meant to be "substantive" clauses at all. Rather, they are entirely procedural. The P or I Clause was meant to be substantive. But it wasn't intended to give federal COURTS the jurisdiction over those substantive rights. But rather the Federal CONGRESS. But indeed, Congress could then be some kind of “perpetual censor upon all legislation of the States" pursuant to its powers under the P or I Clause.

Personally, I'm more sympathetic to the Barnett/Pilon approach. But if I had to ask myself how did the framers and ratifiers really think all this was meant to go down, I suspect it was according to the above described narrative.

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Jonathan Rowe
on April 10, 2019 at 10:52:31 am

The article and the comments are very well written and tremendously thoughtful. As an Englishman, I have a suspicion that in America there is a tendency to want to be exact, as Edmund Burke remarked on, whereas in England we tend to be much more relaxed with definitions. I am not sure whether it is good or not but I fear that the debate will get bogged down on the precision of meaning.

That there must be a precise meaning to the terms 'privileges and immunities' there is no doubt. Furthermore, there is no question that the history of the phrase in America owes a lot to its English heritage. It seems to me that one can go right back to Magna Charta if you want, but Coke and Blackstone summarise the concept well. The point is that the 'Rights of Englishman', for which John Adams fought so assiduously, were understood without explication. The whole judicial system, first in England and then in America, were built on that inherent understanding.

So, the question becomes, 'what are we to do today as a nation to respect the force of those words?'. This is where I think the real debate is. Courts have to articulate what they mean and those words do have to be addressed, at least in so far as they are relevant to the case at hand. The problem, as I see it, is the law schools and, subsequently, their progeny (the judges) have abandoned teaching the requisite understanding of what is owed to the individual in society. We can argue, as it is said, till the cows come home, but in the end we are merely substituting a meaning that has no basis for the kind of society we inherited (as you have all said).

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Seth B Benjamin
on April 10, 2019 at 17:25:45 pm


Fair enough BUT, your argument seems to deny that there was a prior Constitutional usage of the phrase, Privileges and Immunties, Art IV, Sect 2 that, in fact, had a meaning (unclear and ambiguous as it may have beem, and that in the case i cited, Corfeld, Justice Bushrod Washington demonstrated NO HESITATION in alluding to various "liberties" (one day I may explain the choice of that term) as indices of Privileges and Immunities.

Additionally, as i have previously referenced, Tocqueville, in a fine study of the Ancien Regime makes numerous references to the various Privileges and Immunities enjoyed by a) the First Estate vs the Third Estate; the Second Estate vs the Third Estate (and the First) AND also the differing P&I based upon Parish location.
As a fellow below mentioned, the Brits also understood the term Privileges and Immunities to reference REAL FACTUAL dispensations, benefits delendent upon grants from the Monarch or the Parliament.

Thus, I am comfortable in asserting that P&I ACTUALLY referenced certain behaviors, rights, grants, etc that were a) recognized by the Crafters of COTUS and b) were intended by the Crafters to be secured to the citizenry by the inclusion in COTUS. Originally, and as you say, it may have been no more than an injunction against the Federal government to not trespass upon these P&I - BUT again, see Corfeld, and the lack of an uproar of oppostition to the decision, to observe that P&I were indeed "substantive" and as another fellow asserts below, perhaps, we ought to look to P&I as the "substantive" vein of constitutional jurisprudence - rather than to "substantive" Due Process.

Believing this to be the case, I renew my request for some scholar to review the historical record and make a first pass (somewhat better than Ole Bushrod's BTW) at what P&I is / are? Only then may we escape the vacuous vortex of "substantive due process" jurisprudence.
Only then do we have a reasonable chance of resurrecting the intended and essential element of our constitutional structure, Federalism and its attendant subsidiary, albeit now dormant State Police Power.

We must also be careful to NOT conflate individual (but trivial) liberties with P&I, or certain positive rights.
A young lad decides to vary the stride of his steps in order to either step on or not step on the cracks in the sidewalk. Clearly, this is a liberty that the young lad, by right, possesses. Also, clearly, it may be limited by the State as it interferes with the old grandmother pulling her shopping cart.
1) Is a right violated?
2) Is a Privilege abridged?

Answer #1: Yes, but SO WHAT. Simply the cost of participating in society.
Answer #2: Trick question - crack-hopping is NOT a Privilege or an Immunity.

My point in employing a silly example is precisely that:

Let us not conflate certain inconsequential, alienable *liberties*, possessed by all individuals when in a state of nature (whatever that is), but abridgeable (damn spellCHUCKER - HA!)when social comity requires it with certain other POSITIVE RIGHTS awarded / granted by the Legislature to certain citizens or as CITIZENS of a specific STATE 9or parish as in France).
That which is a grant from positive law is not the same as any inconsequential, alienable *liberty*. As such, it must be secured, if legislation is to be at all meaningful; it must NOT be overridden by the Judicial as it is within the power of the Legislative to grant it, so long as it is done on an equal basis; AND MOST IMPORTANTLY OF ALL, these positive grants MAY VARY from State to State based upon State citizenship.
And lastly, each State, acting within its proper sphere and upon its own citizens and sojourners, may deem it proper to abridge or enhance certain positive rights enjoyed by citizens of other States, but not abridge those P&I of citizens of the United States.
That is Federalism - at least as it was intended.
Why would we want our Black Robed friends deciding what is or is not proper?

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on April 10, 2019 at 23:13:05 pm


Thanks for the typically thoughtful and well-written reply. I see no conflict with your position and what I originally stated, i.e. that the Privileges and Immunities clause of the Fourteenth Amendment does not refer to specific rights. This is not especially an outlier in Contsitutional jurisprudence, and is of the same species as Potter Stewart's admission that he could not define obscenity but, knew it when he saw it. It is also kindred of the Supreme Court rationalizations that find Constitutional proscriptions and prescriptions in "evolving standards of decency" or "generally accepted community standards," or Justice Kennedy's Hallmark desk calendar that apparently provided the mystical bases of some of his opinions.

This issue is not a matter of local interest on this blog. It is quite easy to discern the philosophical tension between "due process" and "Privileges or Immunities" perspectives in the Courts recent decision in Timbs v. Indiana. In that case Justice Ginsburg declared that the Due Process clause of the 14th Amendment incorporated the Eighth Amendment's prohibition of excessive fines against the States. In a concurrence, Justice Thomas argued that the Privileges and Immunities clause was the appropriate vehicle for doing so. Thomas emphasized his point by calling substantive due process oxymoronic. Of note, Thomas asserts that the "Privileges and Immunities" referenced in the Fourteenth Amendment were"the 'inalienable rights' of citizens that had been 'long recognized,' and 'the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights' against interference by the states." Gorsuch concurred that "the appropriate vehicle for incorporation may well be the Fourteenth Amendment's Privileges or Immunities Clause rather than, as this Court has long assumed, the Due Process Clause" but then decided "nothing in this case turns on that question." I think that the vague "long recognized" language used by Justice Thomas is consistent with my claim that the Privileges or Immunities clause does not reference a specific list of rights or source of rights.

I suspect that the reason that the Due Process clause is the go-to language for incorporation is that it implies that the government can deprive citizens of life, liberty or property, where the Privileges or Immunities Clause does not.

Riffing off of Justice Stewart, I think there is some sense that people know what the Privileges and Immunities of citizenship are without detailed descriptions or authoritative references. I would assume, for instance that most people would agree that the government cannot compel you to donate a kidney, because Bernie Sanders says you have two functioning kidneys and other people have none. The right to be free of such compulsion might reasonably be considered a privilege or immunity of citizenship. This suggests a thought experiment for exploring whether there are some cases in which the Privileges or Immunities clause would apply, where the Due Process clause may not.

Consider a case analogous to the Tuskeegee syphillis experiments. Assume that some state, oh, I don't know...say Massachusetts, had a program of performing medical experiments on ordinary citizens without their consent. Assume one of these citizens found out about it and sued the state, alleging violation of Consititutional rights. It seems straightforward to assert that the right to not be subjected to involuntary, harmful medical research is a privilege or immunity of citizenship. The arguments that it is not would be interesting. Nevertheless, I could imagine Ginsburg, et al. resisting this notion and instead going back to the Due Process well, or perhaps declaring that medical research is a "search" under the Fourth Amendment, which violates the right to be secure in one's "person." It is interesting to speculate why the more direct recognition of a privilege or immunity might be foregone in favor of tortured definitional discursions. I suspect the answer lies somewhere in the Court wishing to maintain a mechanism of control over deciding what is and is not a right.

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on April 11, 2019 at 12:41:04 pm


Let me first add something that was implicit in my first comment and is a response to your understanding of "generality" or "non-specificity" in COTUS (P&I)

Agreed, general propositions do indeed have a valid role / place in regime documents / and self-understanding. However, I believe that there is a DESCENDING order of generality to be observed as one reviews the "progression" of the regimes documentary history.
The DOI is, in a real sense, a Testementary" document bequeathing to America's progeny the aspirational hopes and desires that would, if perfected, allow for a just and proper form of governance. As such, its aspirations are, and ought to (by necessity, must) be expressed as general propositions. whether they are capable of full delineation / explication is, I think beside the point at this level of regime *exposition*.
COTUS is a rather different document. It is, for lack of a better term, an Executive Document. It provides the structure, the limits, the guarantees, and is itself an attempt to make immanent some number of the aspirational goals of the Testament, the DOI. As such, generality will, or OUGHT TO, BE REDUCED. This is both plain and not self-evident from some of the textual constructions. Still, it is NOT to be expected that in construing a regime document that intends to "execute" the regimes aspirations that important, as the Crafters perceived, rights, privileges deemed necessary to liberty / limited governance would be left in a completely vague obscurity. Textual guarantees, with minimal or no intended import would tend to degrade the effectiveness, if not the purpose of the Executive Document. It would be on par with a constitutional clause that states, "We shall have an elected government _period" That assertion WAS made in the DOI. Would we accomplish anything, would we further our aims were we to repeat it in the Executive document.
I think not. But yes, there is ambiguity in COTUS (some of which I argue is the direct result of WILLFUL discretion by the Black Robes); but ambiguity and "generality of not the same phenomenon nor do they impart the same effects.

Lastly, we have the Enabling Documents, formerly known as Laws duly enacted by the Legislature. A commonplace is that a Law to be valid must be general - BUT - general in its application, not its text, it must be readily comprehensible by the general populace, etc. Thus, Laws are intended to be the most specific of all regimes documents. They may enhance or abridge, based upon political compromise some of the aspirational objects / goals of the regime. This may not be satisfactory to some BUT - it is a reality.

Again, I argue that COTUS is a more detailed and less general set of text, clauses than is the DOI; and a less detailed exposition of regime practice than are the Laws. Speaking, of course, in the theoretical as current observation reveals that present practice of the Legislative is to issue "general aspirational hopes, e.g. "We, the Legislative enact our HOPE that *Climate Change, Hate Crimes, etc will be wiped out - or some such nonsense. We have devolved once again to an aspirational posture; perhaps, because we are no lomnger able to view COTUS, our EXECUTIVE document as anything other than a rohrshac test, from which we may divine any and all "aspirational" BUT not politically negotiated rights.

Anyway, so much for my harebrained thoughts.
Now to read your response to my 2nd comment.

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Image of gabe
on April 11, 2019 at 13:01:09 pm

1) "I suspect the answer lies somewhere in the Court wishing to maintain a mechanism of control over deciding what is and is not a right."

And they have so empowered themselves - see Footnote Four and 4+.

2) " I see no conflict with your position and what I originally stated, i.e. that the Privileges and Immunities clause of the Fourteenth Amendment does not refer to specific rights."

Interesting, in a separate exchange with Mark Pulliam, he states "

"Natural rights exist in the state of nature; civil rights (i.e., laws—positive law) exist in civil society. The twain do not meet."

At first blush, I thought no - BUT...
It may very well be that P*I may be nothing more than THOSE natural rights that the Crafters saw fit to guarantee us in COTUS, e.g the right to travel is clearly a *natural right*; but does its status change by virtue of COTUS' guarantee of free movement between the States? Is it now simply a positive right? As such, may it be abridged? (not unheard of, BTW).
In short, there would appear to be some crossover between natural and positive rights. And as I have argued, States may enhance, or provide additional positive rights, while simultaneously NOT infringing upon certain other natural rights, even if some of those natural rights are also specifically recognized under positive law.

My concern is again how do we counteract the tendency of SCOTUS to arrogate to itself all pro- / prescriptive adjudicative authority over rights / P&I? and how do we allow for proper State choice in allocating specific P&I for their citizens?

So yep, we are not too dissimilar in our positions. My hope is that some clarity may be had after a search of the historical record and that we recognize that there is a latent, but powerful, power in the P&I Clauses.Substantive Due Process in the hands of a skilled judicial magician is even more "elastic" than is P*I.


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Image of gabe
on April 15, 2019 at 09:15:16 am


Agreed entirely: (1) there is no consensus, (2) the judges should not guess, and (3) the judges should not overturn Slaughter-House.

However, the desire to recover the Fourteenth Amendment's original meaning is essential to rebut activists' claims (1) that activism (rather than fidelity to the old Constitution) was necessary to the defeat of Jim Crow and (2) that the Amendment was made deliberately ambiguous so as to be clarified by the judiciary. The "inkblot" theory works both ways: some might say--ignore, others will say "fill in the blank, judges!"

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Image of David Upham
David Upham
on April 15, 2019 at 12:45:56 pm

Yet, can it not be argued that were P&I (properly) defined, limited and juridicially recognized that a this vehicle (P&I) could have been used to effectuate the destruction of Jim Crow and would consequently have obviated the need for the Black Robes to set about divining new rights? while correspondingly NEW limits upon State Police Powers and reducing Federalism to a mere form without substance?

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Image of gabe
on April 16, 2019 at 10:07:42 am

Agreed entirely.

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David Upham

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