[Ken H]

Justice Clarence Thomas on Privileges, Immunities, and the 14th Amendment:

[Justice Washington in Corfield, 1825] endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.4 Id., at 552.    

 Justice Washington's opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.

See Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (referring to a Member's "obligatory quotation from Corfield"). For just one example, in a speech introducing the Amendment to the Senate, Senator Howard explained the Privileges or Immunities Clause by quoting at length from Corfield.5 Cong. Globe, 39th Cong., 1st Sess., 2765 (1866).

Furthermore, it appears that no Member of Congress refuted the notion that Washington's analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.

J. Thomas, Saenz v Roe, dissenting.

_______________________________

Robert Bork: [The P&I] Clause is inscrutable and should be treated as if it had been obliterated by an ink blot. --The Tempting of America 166

[tpaine]

Well, there you have it; -- imho, Justice Thomas will go down in history as one of the finest; -- and Bork will go down as one of the biggest jokes.

[robertpaulsen]

"concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States"

Why would he conclude that? Article IV says very clearly, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

It essentially says that a state cannot treat a citizen of another state differently than their own. Guess what? The slaves were not citizens of any state. They had no privileges and immunities. And after they were freed, the states treated them exactly that way.

The 14th was passed (as part of a trilogy of amendments) to give the slaves some basic privileges and immunities -- they were declared "citizens of the United States" and were entitled to those privileges and immunities that were part of the national government.

[tpaine]

Reviving the Privileges or Immunities Clause to
Redress the Balance Among States, Individuals, and the
Federal Government

by Kimberly C. Shankman and Roger Pilon

Kimberly C. Shankman is associate professor of politics and government at Ripon College, Ripon, Wisconsin. Roger Pilon holds the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute and is the director of Cato's Center for Constitutional Studies.

Executive Summary

Shortly after the Civil War, the American people amended the Constitution in an effort to better protect individuals against state violations of their rights. Under the Privileges or Immunities Clause of the new Fourteenth Amendment, constitutional guarantees against the federal government could be raised for the first time against state governments as well.
Although targeted initially against the "black codes" that were emerging in the postwar South, the amendment was written broadly to protect all Americans.

But 125 years ago, in 1873, in the infamous Slaughterhouse Cases, a deeply divided Supreme Court effectively eviscerated the Privileges or Immunities Clause. Since then courts have tried to do under the Due Process and Equal Protection Clauses of the amendment what should have been done under the more substantive Privileges or Immunities Clause.
The result has been an erratic and often groundless Fourteenth Amendment jurisprudence that has pleased neither liberals nor conservatives, yet both oppose reviving the clause.
Liberals tend to favor the latitude judges now have. Conservatives fear revival will lead to still more "judicial activism."

Both sides are wrong. Conservative "originalists" cannot ignore the plain language and history of the Privileges or Immunities Clause. Liberals need to appreciate that a properly read and applied clause will better protect individual rights.
In the current federalism debate, both sides should understand that power will be devolved to the states and the people in a principled way only if the principles inherent in the Privileges or Immunities Clause are revived--along with the clause itself.