Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause
Forthcoming, Routledge Press
Posted: 14 Aug 2010 Last revised: 14 Feb 2015
Date Written: August 12, 2010
This book offers a new way to provide ground rules for the two most important parts of American constitutional law: those securing basic rights and equality. To be justified historically and textually, both areas of law must be regrounded 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.” Sifting meticulously through five textual precursors, through 1866 discussions (including much hitherto-uncanvassed newspaper evidence), and subsequent interpretation (especially the Civil Rights Act debates), the book finds strong support in each of these sources for an equality reading of the Privileges or Immunities Clause: each citizen must receive the rights of similarly-situated fellow citizens of the United States. A State violates the Clause by either arbitrarily classifying its own citizens or by departing from the consensus of American civil liberty in other states today. This view has implications for a host of current topics, including corporate rights, immigrant rights, application of the Bill of Rights to the states, privacy, economic liberty, sex classifications, segregation, affirmative action, religious liberty, and same-sex marriage.
Keywords: Privileges or Immunities Clause, McDonald v. Chicago, Original Sinn, textualist semi-originalism, Euthyphro, John Bingham, John Sherman, George Boutwell, Charles Sumner
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