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Green on "Of" in the Privileges or Immunities Clause

By Lawrence Solum

Christopher R. Green (University of Mississippi - School of Law) has posted McDonald v. Chicago, the Meaning-Application Distinction, and 'Of' in the Privileges or Immunities Clause (Engage, Forthcoming) on SSRN. Here is the abstract:

While many scholars have made originalism-based suggestions for the overruling of the Slaughterhouse Cases and resurrection of the Privileges or Immunities Clause, very few scholars have given particular attention to the word ?of? in ?privileges or immunities of citizens of the United States.? Because the words ?privileges or immunities? were considered to refer generally to rights, even among those who disagreed about the meaning of the clause, they are not the entire key to understanding the Privileges or Immunities Clause. The key is instead what relationship a right must bear to ?citizens of the United States? in order to count - that is, the meaning of ?of.?

This paper will apply a form of textualist semi-originalism that takes the historic sense, but not the historic reference, as interpretively binding. Framers? analytic (purely-definition-based) judgments of constitutionality are binding, but not their synthetic (partly-fact-based) ones. I will isolate and evaluate six possible basic readings of ?of?: (A) ?possessed in virtue of the existence of the Union by? (the Slaughterhouse-Cruikshank theory); (B) ?possessed under the Constitution against the federal government by? (incorporation by definition, the theory of Justice Black and Democratic opponent of Reconstruction Senator Allen Thurman); (C) ?traditionally possessed (e.g., under the common law and state constitutions) by? (the reading of Republican Senator John Sherman, and one reading of Corfield, focusing on ?those privileges and immunities ? which have, at all times, been enjoyed by the citizens of the several states which compose this Union?); (D) ?traditionally possessed in 1868 by? (Earl Maltz, Steven Calabresi, and Sarah Agudo?s view) (E) ?possessed as a moral matter by? (another reading of Corfield, focusing on ?those privileges which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments?) (F) ?generally possessed locally by? (the antidiscrimination reading championed by John Harrison, Michael McConnell, and Justice Field).

Ultimately, I defend a (C)-or-(F) reading of "of." We need (F) because Section One as a whole must contain an antidiscrimination norm robust enough to support, for instance, racial discrimination regarding the ownership of land, but the Equal Protection Clause applies to aliens, who were uncontroversially denied the ability to own land on racial grounds. However, we must also take account of Jacob Howard and John Bingham?s Corfield- and incorporation-based accounts of the privileges of citizens of the U.S. We can best do so by taking Howard and Bingham?s statements about incorporation as synthetic, not analytic, judgments: that is, they were based on the belief that the rights in the Bill of Rights were, in fact, strongly rooted in the American tradition of civil liberty.

Interpreters applying synthetic incorporation under definition (C) rather than analytic incorporation under definition (B) to a particular question like the incorporation of the Second Amendment must do more than simply note that a particular right is in the Bill of Rights; they must do the sort of analysis undertaken by the Ninth Circuit panel opinion in Nordyke v. King.

Important and highly recommended.

Full post as published by Legal Theory Blog on December 21, 2009 (boomark / email).