The Once and Future Privileges or Immunities Clause

Abstract

On the eve of oral arguments in McDonald v. City of Chicago, we urged the Supreme Court to apply the right to arms against the states through the Privileges or Immunities Clause. And, we explained, the Court could do so without setting out aimlessly into the undiscovered country of untethered and unbounded unenumerated rights — by adapting the principles of Washington v. Glucksberg (1997). By only considering rights that are “deeply rooted” in our nation’s traditions, the Privileges or Immunities Clause could be cabined within the appropriate scope of historical practice without the flood waters rushing in. Alas, the Court didn’t take our bait — though curiously neither the majority nor dissenting opinions grappled with the privileges-or-immunities dimension. This follow-up article will take stock of the last decade. First, what is the status of the ongoing restoration of what was lost in Slaughterhouse? Second, has McDonald changed anything? Third, how should this project more effectively advance?

Part I charts the birth and premature demise of the Privilege or Immunities Clause following the Slaughter-House Cases. Part II explores how McDonald v. Chicago had the potential to revive the Clause, but failed — or only succeeded in a necessary but solo concurring vote. Part III surveys how the lower courts have considered the Clause in the wake of McDonald: the courts continue to provide some judicial protection for the “right to travel,” but all other rights — including the liberty of contract — continue to be disregarded. Part IV forecasts a possible future for the Privileges or Immunities Clause in light of the Supreme Court’s recent decision in Timbs v. Indiana.