Date Posted: March 2008
This Essay was written for a symposium at the University of San Diego commemorating Professor Bernard Siegan. The Essay celebrates Professor Siegan’s constitutional scholarship by reconsidering whether the Privileges or Immunities Clause of the Fourteenth Amendment covers fundamental property and commercial rights.
The Essay makes four observations about the original meaning of the Privileges or Immunities Clause. First, the Articles of Confederation, prominent legal treatises available at the Founding, and prominent case law on the Comity Clause all suggest that “privileges” or “immunities” cover the rights to acquire and hold property and the right to practice a trade. Second, in Blackstone’s Commentaries, colonial charters, and Founding Era public discourse, “privileges” and “immunities” referred to positive laws securing fundamental natural rights. Third, the Comity Clause makes much less sense conceptually if “privileges” and “immunities” refer to formal non-discrimination rights than they refer to fundamental rights with substantive moral content. Finally, the term “abridged” in the Privileges or Immunities Clause strongly suggests that the “privileges” and “immunities” in the clause have not merely formal but also substantive content.
The evidence canvassed in this Essay is not comprehensive, and the interpretation of the Privileges or Immunities Clause is not complete. But these claims do provide new evidence about the original meaning of the Privileges or Immunities Clause and its structural fit with other relevant portions of the Constitution. And they should also help scholars sift other relevant evidence of original meaning more sensitive to how the terms “privileges” and “immunities” were assumed to refer to fundamental substantive rights.