Higher Law Background of the Privileges Or Immunities Clause of the Fourteenth Amendment, The
![handle is hein.journals/hjlpp12 and id is 79 raw text is: THE HIGHER LAW BACKGROUND OF THE
PRIVILEGES OR IMMUNITIES CLAUSE
OF THE FOURTEENTH
AMENDMENT
CLARENCE THOMAS*
Perhaps the Privileges or Immunities Clause of the Four-
teenth Amendment' is not the most exciting part of the Consti-
tution or the part given the most attention in constitutional
analysis. The expression of unenumerated rights today makes
conservatives nervous, while at the same time gladdening the
hearts of liberals.2 I would like to take a different approach,
which grows out of my role as a practitioner of the legal art, to
this theme of giving body to open-ended constitutional
provisions.
The best defense of limited government, of the separation of
powers, and of the judicial restraint that flows from the com-
mitment to limited government, is the higher law political phi-
losophy of the Founding Fathers.3 Contrary to the worst fears
of my conservative allies, such a view is far from being a license
for unlimited government and a roving judiciary. Rather, natu-
ral rights and higher law arguments are the best defense of lib-
erty and of limited government. Moreover, without recourse to
higher law, we abandon our best defense of judicial review-a
judiciary active in defending the Constitution, but judicious in
* Chairman, United States Equal Employment Opportunity Commission. I acknowl-
edge the research assistance of Ken Masugi, as well as the comments of the editors of
the Harvard Journal of Law & Public Poliy.
I. U.S. CONST. amend. XIV, § I (No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States ....).
2. The current case provoking the most protest from conservatives is Roe v. Wade,
410 U.S. 113 (1973), in which the Supreme Court found a woman's decision to end her
pregnancy to be part of her unenumerated right to privacy established by Griswold v.
Connecticut, 381 U.S. 479 (1965). In Griswold, Justice Douglas found that [s]pecific
guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance. Various guarantees create zones of
privacy. Id. at 484 (citation omitted).
I elaborate on my misgivings about activist judicial use of the Ninth Amendment in
Thomas, Civil Rights as a Principle I'ersus Civil Rights as an Interest, in ASSESSING THE RRA-
GAN YEARS 398-99 (D. Boaz ed. 1988).
3. See, e.g., J. MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787
(1984). Madison notes at least three explicit references to Montesquieu in his notes.
Additionally, in the very use of the phrase life, liberty, and property, the Constitu-
tion uses Locke's famous combination of three great rights; see J. LOcKE, Two TREA-
TISES OF GOVERNMENT (P. Laslett 2d ed. 1970) (6th ed. 1764).](ViewImageLocal?handle=hein.journals/hjlpp12&div=15&collection=&method=preview&ext=.png&size=3)
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Higher Law Background of the Privileges Or Immunities Clause of the Fourteenth Amendment, The
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