Arguing that three pieces of evidence are key to understanding the Privileges or Immunities Clause: Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Providing a summary of the original meaning of the Privileges or Immunities Clause derived from these three evidentiary sources. Also pointing to the lower court’s decision in Lee Optical of Oklahoma v. Williamson as a feasible way to restore the original meaning of the Privileges or Immunities Clause.
Arguing that the proper reading of the Privileges or Immunities Clause is the enumerated rights reading. Drawing on the explanation of John Bingham, who drafted the Clause. Arguing that the historical evidence supports the enumerated-rights reading more than it does the fundamental-rights reading.
Rebutting Kurt Lash’s interpretation of the Privileges or Immunities Clause and contending that the Clause must protect more than enumerated personal rights. Concluding that Lash provides readers with an abridged version of the Privileges or Immunities Clause that does not do justice to its original public meaning.
Discussing the drafting of the Fourteenth Amendment and its impacts on federalism. Concluding that the Amendment expands the list of rights citizens have against the state but that it remains consistent with federalism. Arguing that the two problems to be solved by the Amendment were protecting the rights of freedmen and constraining the political power of the southern states.
Discussing how the courts have interpreted the Privileges or Immunities Clause throughout history. Discussing how the Clause has roots in Justice Washington’s opinion in Corfield v. Coryell, where he described privileges and immunities as fundamental before proceeding to list them. Cataloguing how the Slaugherhouse Court eviscerated the Clause and how Justice Black attempted to revive it in Adamson v. California.
Discussing four categories of events in 1866 that demonstrate the original meaning of the Privileges or Immunities Clause: (1) the early framing debates and Republicans’ political split from President Johnson; (2) the initial public discussion of the Fourteenth Amendment, including Howard’s speech; (3) racially motivated crimes in the summer of 1866 that informed the urgency behind ratifying the amendment; and (4) President Johnson’s final attempt to defeat the Fourteenth Amendment with a replacement that effectively made it a comity clause. Contending that this evidence suggests there is distance between the comity clause and the Privileges or Immunities Clause and that the rights of each cannot be equated.
Studying Section 1 of the Fourteenth Amendment through the lens of abolitionist constitutionalism. Summarizing the writings and speeches of numerous antislavery lawyers and laymen between the 1830s and 1850s and contending that these thinkers developed the concept of birthright citizenship that was eventually incorporated into Section 1 as well as early understandings of the Privileges or Immunities, Equal Protection, and Due Process Clauses.
Arguing that the assumptions that John Bingham based the Privileges and Immunities Clause on Justice Washington’s opinion in Corfield v. Coryell are incorrect. Citing language from Bingham in which he “realized he had made a mistake” and thus needed to withdraw his initial proposal for the Privileges or Immunities Clause and contending that this evidence and other inconsistencies call into question modern scholars who read the Clause as a source of unenumerated natural rights.
Arguing that the Privileges and Immunities of the citizens in the several states was broadly understood at the time of the Fourteenth Amendment’s drafting as referring to comity–states providing sojourning citizens equal access to certain rights conferred in that state. Conversely contending that the Privileges or Immunities of citizens of the United States was a term of art referring to rights conferred upon citizens by the Constitution. Arguing that this distinction informed the meaning of the final draft of the Amendment.
Using McDonald v. Chicago to argue that the Second Amendment should have been incorporated via the Privileges or Immunities Clause. Quoting Bingham’s statement to a newspaper underscoring that privileges or immunities “are chiefly defined in the first eight amendments” to the Constitution. Summarizing and critiquing the various opinions in McDonald.
Examining foundational acts of Parliament, colonial charters, constitutional provisions, and treatises to ascertain the original meaning of “privileges or immunities.” Arguing that Blackstone’s Commentaries on the Law of England is the most important source, as he uses “privileges” and “immunities” to refer to civil laws that protect life, liberty, and property. Arguing that states must therefore structure their laws to protect natural rights as understood in the Anglo-American political tradition. Noting that the word “abridging” presumes that privileges or immunities have substantive content.
Examining Lochner v. New York through the lens of the Privileges or Immunities Clause. Tracing the Privileges or Immunities Clause back to the Articles of Confederation and Corfield v. Coryell. Contending that Justice Washington’s statement in that case does not encompass all that could be called privileges or immunities. Arguing that the Clause does not read as an anti-discrimination clause but rather as a guarantor of substantive rights against state action.
Arguing that the Privileges or Immunities Clause cannot be understood without grounding it in natural law principles. Citing early constitutional provisions and declarations of rights in the early colonies. Discussing Corfield v. Coryell and arguing that the prospects for recovering Justice Field’s conceptions of the Amendment are not good.
Discussing Saenz v. Roe and its revival of the Privileges or Immunities Clause. Examining the original intent behind the Clause by exploring the historical significance of privileges and immunities. Analyzing how the intended function of the clause has been subsumed by substantive due process and an expansive use of the Equal Protection Clause.
Arguing that the Fourteenth Amendment’s Privileges or Immunities Clause was intended to secure “limited absolute equality” of civil rights but not political or social rights.
Concluding that the Fourteenth Amendment and its Privileges or Immunities Clause were designed to protect basic constitutional liberties; left a broad sphere for state power; prohibited (under the Equal Protection Clause) racial and similar discrimination in many rights conferred by state law; should not be read to outlaw worker safety, maximum hours, or the minimum wage; and should allow federal protection of individual rights against certain types of private attack.
Arguing that the Privileges or Immunities Clause provides equality-based protection rather than substantive protection of rights.
Arguing that natural rights and higher law arguments provide the best way to defend limited government and natural liberties. Arguing that the best guide to the purpose of the Privileges or Immunities Clause is Justice John Marshall Harlan’s lone dissent in Plessy v. Ferguson. Arguing that because Harlan spoke of “citizens,” he relied on the Privileges or Immunities Clause more than the Equal Protection or Due Process Clauses, which both refer to “persons.”