The Rediscovery of Nationalism


The recent Supreme Court decision in Saenz v. Roe perversely struck down a California two-tier welfare law that placed a ceiling on TANF payouts to recent arrivals in the state. In so doing, the Court breathed new life into the Fourteenth Amendment's Privileges or Immunities Clause. This Article suggests that, however misconceived the decision might appear from the perspective of welfare law, it usefully promotes a common American identity on which nationalist sentiments crucially depend, and that this is how the Privileges or Immunities Clause should be understood. More than the flag, the basic stock of constitutional protections of individual liberty are a symbol of the country for American patriots. As an abstract sentiment, patriotism are plausibly regarded as benign. Moreover, we are not without some control over our fixed preferences, and it may be individually rational to choose to be patriotic. One of the advantages of constitutional protections as a patriotic symbol is that they serve as a bonding device for political leaders, limiting the uses for which a country may ask its citizens to make patriotic sacrifices. Nevertheless, there is a possibility of excessive constitutional protections as a consequence of over-signalling.