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95 Notre Dame L. Rev. 499 (2019-2020)
The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment

handle is hein.journals/tndl95 and id is 519 raw text is: THE ORIGINAL MEANING OF PRIVILEGES OR IMMUNITIES THE PRIVILEGES OR IMMUNITIES CLAUSE, ABRIDGED: A CRITIQUE OF KURT LASH ON THE FOURTEENTH AMENDMENT Randy E. Barnett* & Evan D. Bernick** The Privileges or Immunities Clause of the Fourteenth Amendment reads: No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States .. I Upon confronting this language, the first question most ask is what exactly are the privileges or immunities of citizens of the United States? It was this very question that Justice Ruth Bader Ginsburg put to attorney Alan Gura during oral argument in McDonald v. City of Chicago,2 as he was urging the Court to revive the Privi- leges or Immunities Clause to protect the right to keep and bear arms.3 But I really would like you to answer the question that you didn't have an oppor- tunity to finish answering, and that is: What other... rights? What does the privileges and immunities of United States citizenship embrace?4 On May 23, 1868, Jacob Howard, senator from Michigan, former attor- ney general of Michigan, and the designated sponsor of the Fourteenth Amendment in the Senate, delivered a comprehensive and widely reported address in which he addressed this question.5 According to Howard, the © 2019 Randy E. Barnett & Evan D. Bernick. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution. ** Law Clerk to the Honorable Diane S. Sykes, United States Court of Appeals for the Seventh Circuit. 1 U.S. CONST. amend. XIV, § 1. 2 McDonald v. City of Chicago, 561 U.S. 742 (2010). 3 See Transcript of Oral Argument at 3-5, McDonald, 561 U.S. 742 (2010) (No. 08- 1521). 4 Id. at8. 5 HAMILTON GAY HOWARD, IN MEMORIAM: JACOB M. HowARD OF MICHIGAN 1, 9 (1906).

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