Date of Award

7-2025

Document Type

Dissertation

Degree Name

Doctor of Juridical Science (SJD)

Abstract

Is it time to revive the privileges or immunities clause?

I argue it is. But in a distinct way from what other legal scholars have suggested. Today, two ideas dominate discussion of the Privileges or Immunities clause of the 14th Amendment. First, the Supreme Court rendered it a nullity in the Slaughter-House Cases (1873). Second, any attempt to revive it, most prominently Justice Thomas's recent concurrence in McDonald v. City of Chicago (2010), necessarily means an abandonment of modern rights now protected by Due Process or Equal Protection. The first, in essence, argues the Clause is already dead, while the second argues that reviving it necessarily means the death of existing rights. I offer a different theory. Instead of avoiding the Clause, we need to embrace it. The reason: we are at an inflection point in modern Constitutional law and, going forward, a reinvigorated Privileges or Immunities Clause offers the best way not only to preserve existing rights but also to accommodate future ones. Two big, related forces are in play. First, modern Due Process and Equal Protection have reached the point of what I term Doctrinal Exhaustion. It's time to look elsewhere for new rights. Undoubtedly, both Clauses have been successful. So successful that their main themes - such as racial and gender equality, and modern due process - are permanently embedded in American culture. They've become meta-Constitutional law. Simultaneously, going forward, their doctrinal framework no longer can provide effective solutions for contemporary legal and social problems. They've run their course. Second, modern American culture is changing and, in its wake, requires a different, invigorated system of rights. We are in the middle of a paradigm shift. Together, these suggest an opening for a modern theory of rights based on a revival of the Privileges or Immunities Clause. Even more, the emergence of the Equal Dignity model from Obergefell v. Hodges is both a symptom and a signal such a change is already underway.

Download

Share

COinS