The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment

85 Pages Posted: 2 Apr 2019 Last revised: 9 Apr 2019

See all articles by Randy E. Barnett

Randy E. Barnett

Georgetown University Law Center

Evan D. Bernick

Judicial Clerk

Date Written: March 7, 2019

Abstract

The Privileges or Immunities Clause of the Fourteenth Amendment was virtually eliminated by the Supreme Court in three cases: The Slaughter-House Cases, Bradwell v. Illinois, and United States v. Cruikshank. Today, most constitutional scholars agree that this was a terrible mistake, the effects of which continue to reverberate through our constitutional law. But, as evidenced by the Court’s decision in McDonald v. City of Chicago, both the “left” and “right” sides of the Court are reluctant to open the “Pandora’s Box” of uncertainty created by the phrase “privileges or immunities of citizens of the United States.” Scholars have not yet arrived at a consensus about its original meaning — much less about how to implement that meaning in constitutional practice.

In this article, we clear the field of a competing interpretation offered by Professor Kurt Lash. In an impressive series of articles and monograph, Lash avoids the Pandora’s Box by contending that the “privileges or immunities of citizens of the United States” are limited to the rights enumerated in the text of the Constitution, and do not include any unenumerated rights. While we agree with Lash that the enumerated rights are indeed among the “privileges or immunities” of U.S. citizens, we demonstrate his failure to establish that these are the only rights of U.S. citizens that state legislatures may not abridge.

In future work, we will present evidence of a more capacious original meaning of “privileges or immunities” of U.S. citizens, as well as a practical means for judges to identify these rights and apply them to cases and controversies. It suffices for now to say that we side with Michigan Senator Jacob Howard’s explanation of “privileges or immunities” over Lash’s.

Suggested Citation

Barnett, Randy E. and Bernick, Evan D., The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment (March 7, 2019). Notre Dame Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3348680

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

Evan D. Bernick

Judicial Clerk ( email )

Milwaukee, WI 53202
United States

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