[PapaNew]

I don't know. All I know is Bork is inferring that, the history of the definition of P&I notwithstanding, there is not enough evidence to understand what and why they put P&I in the 14A. But there is PLENTY of reason conclude that no constitutional revolution was intended by the 14A. It seems that P&I in the 14A is a moot point that Thomas wants to resurrect to give "justifiable" life to the utterly discredited incorporation doctrine. Justice Miller saw that P&I in the 14A added nothing to P&I in Article IV, so it was a moot point as far as he was concerned.

I agree with Bork and Miller and believe simply that the ratifiers were trying to put former slaves on equal footing with all U.S. citizens. Just guessing (something Bork, admirably, was loathe to do which is why he might have been one of our greatest Justices if he had been given the chance), my sense is the ratifiers were simply wanting to confirm that states could not discriminate against black out-of staters. In that sense, P&I in the 14A doesn't add anything, only confirms the full citizenship status of former slaves. But that's my opinion only, not a constitutional basis for construction. I sense it's probably Bork's also, but he was disciplined and discrete enough to keep his personal opinions separate from valid constitutional construction.

[Ken H]

If he doesn't even define the terms of the Clause, as J. Thomas and the Heritage Foundation have done in their arguments, then how can he make any statement about the meaning of the Clause itself? The answer is obvious - he cannot do so credibly.

If Privileges and Immunities are taken to mean ancient fundamental rights of Englishmen, then the meaning of the Clause is simple. No state may violate these fundamental rights.