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Green on the Privileges or Immunities Clause

By Lawrence Solum

Christopher R. Green (University of Mississippi - School of Law) has posted The Original Sense of "Of" in the Privileges or Immunities Clause on SSRN. Here is the aabstract:

The key term in the Privileges or Immunities Clause--"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"--is "of." "Privileges or immunities" in this context means simply rights, but not all citizens of the United States can have just any right. The key is what relationship a right must stand to citizens of the United States to count.

Based largely on a comprehensive review of the debates leading to the Civil Rights Act of 1875, this paper argues that the Privileges or Immunities Clause must be at least in part an equal citizenship guarantee banning states and localities from apportioning local privileges in, for instance, racially unequal ways. Accordingly, "of" must include "generally possessed locally by." However, there is substantial textual and historical evidence that the Clause responds to Barron v. Baltimore (1833) and protects a basic set of privileges for everyone in the nation. We should search for a minimally-heterogeneous interpretation of "of" that can handle both sets of data. I argue that understanding the basic-rights component as an anti-outlier protection for the contemporary American tradition of civil liberty in the mold of Washington v. Glucksberg (1997) fits most harmoniously with the equal-citizenship component and with other data. In addition to banning second-class citizenship, the Privileges or Immunities Clause thus protects many natural rights, but not as such, and many or most of the liberties in the Bill of Rights, but not as such, and without freezing its set of basic rights at the time of Reconstruction.

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Full post as published by Legal Theory Blog on August 13, 2010 (boomark / email).