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 No. 326REVIVING THE PRIVILEGES OR IMMUNITIES CLAUSETO REDRESS THE BALANCE AMONG STATES, INDIVIDUALS, ANDTHE FEDERAL GOVERNMENT
by Kimberly C. Shankman and Roger Pilon
Executive Summary
Shortly after the Civil War, the American people amend-ed the Constitution in an effort to better protect individu-als against state violations of their rights. Under thePrivileges or Immunities Clause of the new FourteenthAmendment, constitutional guarantees against the federalgovernment could be raised for the first time against stategovernments as well. Although targeted initially againstthe "black codes" that were emerging in the postwar South,the amendment was written broadly to protect all Americans.But 125 years ago, in 1873, in the infamous Slaughter-house Cases, a deeply divided Supreme Court effectivelyeviscerated the Privileges or Immunities Clause. Since thencourts have tried to do under the Due Process and EqualProtection Clauses of the amendment what should have beendone under the more substantive Privileges or ImmunitiesClause. The result has been an erratic and often ground-less Fourteenth Amendment jurisprudence that has pleasedneither liberals nor conservatives, yet both oppose revivingthe clause. Liberals tend to favor the latitude judges nowhave. Conservatives fear revival will lead to still more"judicial activism."Both sides are wrong. Conservative "originalists" can-not ignore the plain language and history of the Privilegesor Immunities Clause. Liberals need to appreciate that aproperly read and applied clause will better protect indi-vidual rights. In the current federalism debate, both sidesshould understand that power will be devolved to the statesand the people in a principled way only if the principlesinherent in the Privileges or Immunities Clause are re-vived--along with the clause itself. ____________________________________________________________
Kimberly C. Shankman is associate professor of politics and government at Ripon College, Ripon, Wisconsin. Roger Pilonholds the B. Kenneth Simon Chair in Constitutional Studiesat the Cato Institute and is the director of Cato's Center for Constitutional Studies.
 
 November 23, 1998
 
Introduction
The Fourteenth Amendment to the United StatesConstitution is the focus of a vast body of modernAmerican law and litigation--and a never-ending source ofpolitical and legal controversy. Written and ratifiedduring Reconstruction, in the aftermath of the Civil War,the amendment, in essence, provides federal remedies forstate violations of individual rights in areas as diverseas religion, speech, privacy, economic liberty, propertyrights, civil rights, and civil and criminal procedure.As section one of the amendment states:All persons born or naturalized in the UnitedStates, and subject to the jurisdiction thereof,are citizens of the United States and of theState wherein they reside. No State shall makeor enforce any law which shall abridge the priv-ileges or immunities of citizens of the UnitedStates; nor shall any State deprive any personof life, liberty, or property, without dueprocess of law; nor deny to any person withinits jurisdiction the equal protection of thelaws.Precisely what rights are protected by that broad languageis the main source of controversy, of course, and the mainsubject of this study. What is clear, however, is thatsection one authorizes courts, by implication, to adjudi-cate claims brought pursuant to the amendment, whereassection five authorizes Congress "to enforce, by appropri-ate legislation, the provisions of this article."By giving the courts and Congress such sweepingauthority over disputes between states and individuals, theamendment altered fundamentally the original relationshipbetween the federal government and the states. For thefirst time, constitutional guarantees against the federalgovernment could be raised against state governments aswell. Given that the Constitution establishes a federalgovernment of enumerated and thus limited powers--leavingmost power with the states and the people, as the TenthAmendment makes clear--it is not surprising that in thewake of the Fourteenth Amendment we have seen repeatedtests of the proper scope of both federal and state powerand, as a corollary, the proper basis and content of indi-vidual rights. While the players have changed names andsides over the years, modern liberals have tended to favorrestricting state power, except in the areas of economicregulation and social welfare; modern conservatives, bycontrast, have tended to favor allowing states a widePage 2
 
berth in the name of majoritarian democracy, "states'rights," and "judicial restraint."Although intense litigation under the amendment shouldnot surprise, what is surprising is that most of it hastaken place not under the Privileges or Immunities Clause,which was meant to be the principal font of individualrights, but under the Due Process and Equal ProtectionClauses. Using the Due Process Clause, judges have"incorporated" most of the Bill of Rights under theFourteenth Amendment, then applied those protectionsagainst state actions to find the actions unconstitutional.More recently, judges have used the Equal ProtectionClause to the same effect and others, raising all mannerof questions about the scope of their authority and thegrounds of their reasoning. In all of this, however, nei-ther liberals nor conservatives have given more than amoment's attention to the cardinal clause of theFourteenth Amendment, the Privileges or Immunities Clause,which remains uncited, unlitigated, uncommented upon--in aword, unnoticed. Whole chapters of modern constitutionallaw casebooks are devoted to due process and equal protec-tion while privileges or immunities are dismissed in a fewpages at most. Like the bark of the hound in the canon ofSherlock Holmes, what is most striking about thePrivileges or Immunities Clause in the canon of consti-tutional law is its absence.Every lawyer knows why the Privileges or ImmunitiesClause is absent from modern constitutional law, despiteits manifest presence in the Fourteenth Amendment: 125years ago, in 1873, five years after the amendment wasratified, a bitterly divided Supreme Court, by a vote offive to four, effectively removed the clause from theConstitution. That decision, reached in the infamousSlaughterhouse Cases,
1
rendered the clause ever after "avain and idle enactment"
2
--precisely as predicted by theSlaughterhousedissenters. Indeed, so profound was theeffect of the Court's decision that in the entire historyof Fourteenth Amendment jurisprudence only one state lawhas ever been held to be in violation of the Privileges orImmunities Clause--and that decision was overturned just afew years after it was announced.
3
In a single stroke, theCourt had turned the centerpiece of the FourteenthAmendment into "one of those blessed constitutional provi-sions that by being ignored has not caused a single bit oftrouble"
4
--the view of Professor Lino Graglia of theUniversity of Texas, one of the leading conservative crit-ics today of the Court's "activism" in overseeing statepower.
 
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