Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship and Antidiscrimination
101 Pages Posted: 7 Jan 2014 Last revised: 5 Apr 2014
Date Written: April 2, 2014
This paper traces the founding generation’s use of privileges and immunities language and the courts’ nineteenth-century adjudication of the Clause, especially the first half of the nineteenth century. Following a short survey of English history, this paper examines the Confederation and the Constitution and argues that privileges and immunities language should not be considered self-executing or self-enforcing. The courts erred in interpreting privileges and immunities language as providing substantive antidiscrimination protection under the mere language of the Clause itself. The Supreme Court should not create common citizenship rights or determine whether a regulated activity is “fundamental.” On multiple levels, this kind of discretion was given to Congress. Nineteenth-century case law drifted off course. From the disorientation, courts never regained direction.
Keywords: constitutional law, privileges and immunities clause, legal history, Articles of Confederation, Constitution, Naturalization Clause, Fourteenth Amendment, Dormant Commerce Clause, Race
JEL Classification: K10, K40
Suggested Citation: Suggested Citation