Re-Evaluating the Privileges or Immunities Clause

Abstract

In its 1999 case, Saenz v. Roe, the Supreme Court re-invigorated a long-dead clause of the Constitution, the Privileges or Immunities Clause of the 14th Amendment. Oddly, though, the opinion was written by Justice Stevens, one of the staunchest devotees of a living Constitution rather than originalism. As odd: Justice Thomas, the most consistent originalist on the Court, was in dissent. In his view, any reinvigoration of the Privileges or Immunities Clause should displace, rather than augment, the untethered jurisprudence that expansively interpreted other clauses of the 14th Amendment to cover the neutered Privileges or Immunities Clause, and it should be revived as originally contemplated.

This article begins to take up the invitation made by Justice Thomas to explore the original meaning of the Privileges or Immunities Clause, contending that it (and its sister clause in Article IV of the original Constitution) was one of the clauses actually designed to codify the basic natural rights principles of the Declaration of Independence.

Keywords: Privileges or Immunities, natural rights, Saenz v. Roe, 14th Amendment, Justice Clarence Thomas, Declaration of Independence, Constitution

JEL Classification: D63, H11, H53, H70, H71, I30