- The historical context of the post-civil war reconstruction period to instate the former slaves as full U.S. citizens with full rights as others.
- The legal context of this being the middle of the three reconstruction amendments.
- The lack of clear text that proves specific provision of unparalleled and massive expansion of federal power which would have been completely out of place from the purpose of these post-civil war reconstruction amendments and would have produced much evidence, of which there is none, of debate and discussion about such a radical departure from American governance, as noted below.
- The weight of the probative value of accuracy and precedent in a SCOTUS case decided four years after the amendment was ratified versus 131 years later.
- The intent of the ratifiers, not the drafters. Thomas’ argument rests on the drafters’ intent to apply Corfield v. Coryell rights. But as noted below, there is scant evidence this was intended by the ratifiers and it is the intent of the ratifiers, not the drafters, that counts.
Judge Robert Bork, the generally recognized leading scholar on Constitutional Law of his time and most notably focused on original understanding and intent in construction, said this about the fourteenth amendment:
"The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment's three clauses, two have been pressed into service of judicial imperialism - the due process and equal protection clauses - while the third, the privileges and immunities clause, has remained a cadaver that it was left by the Slaughter-House Cases. It is this corpse that [former dean of the Stanford law school] Ely [and apparently now Justice Thomas] proposes to resurrect.
"The due process clause will not do as a warrant for the creation of new constitutional rights because, as Ely notes, it is simply a requirement that government not do certain things to people without fair procedures, not a statement of what things may not be done. The fifth amendment's due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. 'There is general agreement that the earlier clause had been understood at the time of its inclusion to refer to lawful procedures. What recorded comment there was at the time of replication in the fourteenth amendment is devoid of any reference that gives the provision more than a procedural connotation' (J. Ely, Democracy and Distrust (1980) at 105-16). That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.
"Ely's attempt [and apparently Thomas' proposed attempt] to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that 'there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless' (Id. at 103). That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.
"Bingham and Howard meant these additional rights [taken from Corfield v. Coryell]. That the ratifiers did is far less clear. Certainly there is no evidence that the ratifying convention intended such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott, a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts.
"Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.
"We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit” (R. Bork, The Tempting of America (1990), excerpted at 180-83).
And, therefore, in reference to Justice Miller’s opinion in the Slaughter-House Cases, Bork says, “ Miller was following sound judicial instinct: to reject a construction of a new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. [ ] In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race” (id. at 37-38).
He seemed to be saying the clause didn't apply to anyone - black or white: 'Clause is inscrutable and should be treated as if it had been obliterated by an ink blot.' (see footnote in J.Thomas's dissent in Saenz v Roe).
I would like to know how he defines Privileges and Immunities in this context.
The meaning becomes clear and simple if Privileges and Immunities are understood to mean fundamental rights common to all citizens, as Thomas argues. It means that states may not infringe the fundamental rights of any citizen, and such laws are in conflict with the Constitution. Anything more or less is not in keeping with the original intent.
Under Bork's interpretation, a state could disarm its citizens and it would be entirely constitutional. He presumably would have joined the liberals on the Court in the Heller and McDonald cases, thus voting against Thomas, Scalia, et al.