Q: Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?rp: That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.
Agreed. That was what the 14th was understood to mean at the time it was promulgated.
That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.
IOW, the Court ruled against the original understanding.
Rights, Responsibilities, and Communitarianism
Address:
http://www.friesian.com/rights.htm
Here's an interesting [anti-communitarian] take on privileges & immunities from the above site:
"-- as the 14th Amendment forbids the States from passing laws "which shall abridge the privileges or immunities of citizens of the United States."
The unamended Constitution itself says (Article IV, Section 2): "The Citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States."
"Privilege" could to be interchangeable with "liberty" or "power." The great English jurist, William Blackstone (1723-1780), whose Commentaries on the Laws of England formed the basis of American understanding of English Common Law, defines the terms thus:
The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.
Thus, "immunities" tends to cover natural rights that are retained pretty much in their original form.
The right to self defense would belong in that category. On the other hand, "privileges" are rights (as powers) that substitute in a civil form for certain other natural rights which are not retained in their original form.
An example of that would be a natural right to retribution through revenge, which is surrendered for a civil power, or privilege, to seek redress for wrongs and retribution through judical proceedings.
Punishments for wrongdoing are then applied by a presumably dispassionate authority, whose judgment will not be distorted by personal grievance.
A fairly clear boundary can then be drawn between just retribution and revenge, where in the state of nature that would be very difficult.
Today "privilege" is usually contrasted with any kind of "right," in the sense that rights are natural and inalienable while privileges are granted, contingent, and revocable, as most States say that a driver's license is a "privilege, not a right"; but we see James Fenimore Cooper, in his The American Democrat, using the expression "inalienable privilege," which shows that our contrast between "rights" and "privileges" is quite recent. --"