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26 Geo. Mason L. Rev. 1059 (2018-2019)
Privileges and/Or Immunities in State Constitutions before the Fourteenth Amendment

handle is hein.journals/gmlr26 and id is 1113 raw text is: 



                             Anthony B. Sanders*


     When   Congress  and the States constitutionalized privileges or immun-
ities in the Fourteenth Amendment,   it was only the second time  drafters of
the U.S. Constitution  had placed  the words  privileges and  immunities
together.' But  Americans   had actually  constitutionalized that language-
sometimes  with  an or in the middle, sometimes  with an and, sometimes
with just a comma,  and sometimes  in a different order-more  than two dozen
times before.2 While   scholars continue to disagree  on the meaning   of the
Fourteenth  Amendment's reference to privileges   or immunities   of citizens
of the United States, the history of these precursor constitutional phrases is
largely untold. This Article addresses that silence, reporting on how Ameri-
cans used the grand conjunction  of these two words  in their constitutions be-
fore the Reconstruction  Congress  placed  them in Section  One  of the Four-
teenth Amendment.
     This is not to say that others have not examined  the phrase privileges
and/or immunities   in pre-Fourteenth  Amendment documents. Many have
reviewed  its use in the all-important Article IV, Section 2,3 in treaties,4 in the

    *  Senior Attorney, Institute for Justice (IJ). J.D. 2004, University of Minnesota; M.A. 2000, Uni-
versity of Wisconsin-Madison; B.A. 1998, Hamline University. A great many people provided very help-
ful feedback for the creation of this Article. At the risk of leaving many of them out, they include Evan
Bernick, Josh Blackman, David Bernstein, Cynthia Crawford, Sheldon Gilbert, Chris Green, Carissa
Byrne Hessick, Ken Kersch, JoAnn Koob, Bob McNamara, Ricard Pochkhanawala, Logan Sawyer, JP
Schnapper-Casteras, Ilya Shapiro, David Upham, Jonathan Urick, Ted White, Ilan Wurman, and Rebecca
Zietlow. Thanks to all of them, and to my colleagues at IJ who support my voyages in uncharted state
constitutions. And thanks to Amy, Geneva, and Everett who provide me innumerable privileges and im-
munities every day.
    1  The first had been when the Constitutional Convention adopted the same language in Article IV,
save for an and instead of an or in the middle. Compare U.S. CONST. art. IV, § 2, cl. 1, with id. amend.
XIV, § 1.
    2  See infra note 25.
    3  See, e.g., Robert G. Natelson, The Original Meaning ofthe Privileges and Immunities Clause, 43
GA. L. REV. 1117, 1148-88 (2009); Douglas G. Smith, The Privileges and Immunities Clause ofArticle
1V Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 SAN DIEGO L. REv. 809, 831-57
    4  See, e.g., Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities, 11
U. PA. J. CONST. L. 1295, 1298 n.13 (2009); Arnold T. Guminski, The Rights, Privileges, and Immunities


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