Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System

Abstract

The American constitution was born flawed: it failed to provide a mechanism for resolving entrenched differences in the social status regimes between states. This Article argues that part of the purpose of the Privileges or Immunities Clause of the Fourteenth Amendment was to correct that flaw. The Privileges or Immunities Clause was the culmination of a long antebellum debate over whether southern states had to respect the rights of northern black citizens as they traveled. The Clause achieves this goal by requiring states in certain circumstances to respect the status determinations of other states when the citizens of those other states travel. Although this aspect of the Privileges or Immunities Clause has long been forgotten, it survived the Supreme Court’s decision in the Slaughterhouse Cases.

And there is a good chance it will soon be needed again. The United States is on the verge of an entrenched conflict between states concerning the recognition of the status of marriage for same-sex couples. Although multiple resolutions are possible, the forgotten component of the Privileges or Immunities Clause may provide a more stable and effective framework for determining when states must respect the status determinations of other states. As a structural remedy rather than one based solely on individual rights, the Clause’s protection for state status determinations is only triggered when a critical mass of states line up for or against recognizing the status at issue. As a result, the Clause’s protection for state status determinations is more limited than other rights, but potentially more attractive for courts disinclined to greatly expand existing doctrine. If a substantial number of states grant same-sex marriages, the Privileges or Immunities Clause will require the rest of the states to recognize those marriages for travelers.

Keywords: privileges or immunities, constitutional law, same-sex marriage, social status, status regimes, Slaughterhouse Cases

JEL Classification: K4, K40, K42, K49, K19, K39