66 Geo. Wash. L. Rev. 1241 (1997-1998)
Translating the Privileges or Immunities Clause

handle is hein.journals/gwlr66 and id is 1249 raw text is: Translating the Privileges or
Immunities Clause
Jeffrey Rosen*
Constitutional scholars agree about very little at the end of the twentieth
century; but on the left and the right, during the past decade, the cognoscente
have converged around at least one principle. Everyone,' we're told, now
agrees that the Supreme Court took a wrong turn in the Slaughter-House
Cases2 in 1873, when a narrow majority read the Privileges or Immunities
Clause of the Fourteenth Amendment out of the Constitution by construing
it into irrelevancy. By forcing the Due Process Clause to do the dark and
lonely work that should have been assigned to the Privileges or Immunities
Clause, the story goes, the Court started down the road to Lochner,3 the
crisis of 1937, and all the other horribles we associate today with the doctrine
of substantive due process.
Much of the current Privileges or Immunities revival can be traced to the
work of John Hart Ely, who changed the terms of constitutional debate in
1980 by reminding us of the promise of a textualist approach to the Four-
teenth Amendment. The Privileges or Immunities Clause is probably the
clause from which the framers of the Fourteenth Amendment expected
most, he wrote, and there is not a bit of legislative history that supports the
view that the Privileges or Immunities Clause was intended to be meaning-
less.4 By contrast, Ely called the notion of substantive due process a
contradiction in terms-sort of like 'green pastel redness.5 Since the pub-
lication of Democracy and Distrust, liberal and conservative scholars who
agree about little else have convinced themselves that if only the Court today
could restore the Privileges or Immunities Clause to its proper place at the
center of the textual Fourteenth Amendment, many of the problems of inde-
terminacy and subjectivity that plague constitutional doctrine would disap-
* Associate Professor, George Washington University Law School. Special thanks to
Bruce Ackerman, Akhil Amar, Michael Kent Curtis, Walter Dellinger, Lawrence Lessig, Ira C.
Lupu, Lawrence E. Mitchell, Joshua Schwartz, and the participants in the G.W. Works in Pro-
gress colloquium, for extremely helpful suggestions and conversations; to Kaija Clark, for tireless
research assistance; to Dean Jack Friedenthal, for generous support; and to all the scholars who
participated in the Textualism Symposium, for their superb contributions.
1 See, e.g., Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Four-
teenth Amendment, and the Slaughter-House Cases, 70 CHi.-KENT. L. REv. 627,627 & n.4 (1994)
(citations omitted) (arguing that 'everyone' agrees the Court incorrectly interpreted the Privi-
leges or Immunities Clause). Well, not everyone. See ROBERT H. BORK, The Tempting of
America 37 (1990) (stating that, [t]hough some have complained bitterly about this [decision],
[Justice] Miller was following a sound judicial instinct: to reject a construction of the new amend-
ment that would leave the court at large in the field of public policy without any guidelines other
than the views of its members).
2 83 U.S. (16 Wall.) 36 (1872).
3 Lochner v. New York, 198 U.S. 45 (1905).
4 JoHN HART ELY, DEMOCRACY AND DIsrRusT 22 (1980).
5 Id. at 18.
June/August 1998 Vol. 66 No. 516

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