Liberty, Equality, Privileges, Immunities: Lost Knowledge

Abstract

As we begin the 21st Century, constitutional scholars generally agree that our judges have misconstrued the Privileges or Immunities Clause of the Fourteenth Amendment. If we are to revive the concept of privileges and immunities, we need to revive lost knowledge about what went wrong with the Privileges and Immunities Clause of Article IV.

Today, it is often assumed that the clause was an embryonic equal protection clause, so that one can interpret it correctly if one declares that any state statute that has discriminated against a non-resident is subject to strict scrutiny for having made a suspect classification. But I wish to contend that our modern reading is a classic example of "lost knowledge." In this paper, I will present some of the evidence that indicates that the clause was more of a fundamental rights clause than it was an equal protection clause. There is a risk of anachronism in making this argument, since ante-bellum jurisprudence did not clearly distinguish between fundamental rights and equality rights, as will appear in due course. Even so, to regard Article IV's Privileges and Immunities Clause as an equal protection clause is a serious distortion of history.

It is true that by the end of the ante-bellum period, many of those who had power to shape the law had arrived at an equal protection interpretation, but our lost knowledge on this point is that they did so because of slavery. Given that the nation was half slave, and half free, there could be no uniformity of fundamental rights throughout the nation. In particular, it was intolerable to the Southern states that any northerner could be permitted to agitate against slavery within their borders. Furthermore, if a northerner were a free black citizen of a northern state, it was even more intolerable that such a person could travel in the South without being subjected to the same discipline that a southern free black suffered. In short, despite the early interpretations of the clause, by the time of the Civil War it had become a dead letter.

Since we have lost all knowledge of the ante-bellum history, we also fail to understand the difficulty that lawyers had in arguing the interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment. Inertia is a powerful force in the law, and so it was an extraordinary challenge for lawyers to bring back to life in the post-Civil War era a concept that had died an ugly death in the pre-Civil War era. As we look back at the second half of the Nineteenth Century, I think that we should look at the arguments made by counsel in the cases that they lost. There was creative work done that deserves our respect and from which we might learn.