Answering Justice Thomas in Saenz: Granting the Privileges or Immunities Clause Full Citizenship within the Fourteenth Amendment

By Shaffer, Derek | Stanford Law Review, February 2000 | Go to article overview

Answering Justice Thomas in Saenz: Granting the Privileges or Immunities Clause Full Citizenship within the Fourteenth Amendment


Shaffer, Derek, Stanford Law Review


Justice Thomas's dissent from the Supreme Court's decision in Saenz v. Roe,(2) handed down in May of this past year, signals a possible reawakening of the long comatose Privileges or Immunities Clause of the Fourteenth Amendment ("the Clause"). In Saenz, Justice Stevens's majority opinion called upon the Privileges or Immunities Clause of the Fourteenth Amendment(3) as a substantive guarantee of personal liberties, specifically "the right of [a] newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State."(4) This decision marked the first time in over sixty years that the Court relied on the Clause(5) and recapitulated the limited conception of it famously espoused over a century ago in the Slaughter-House Cases.(6) The decision may signal a new found willingness to resuscitate a clause that has effectively been read out of the Fourteenth Amendment and to put it to work as a living, breathing part of our Constitution. This Note accepts Justice Thomas's invitation: It provides an account of the history of the Privileges or Immunities Clause of the Fourteenth Amendment, the intent of its framers, and its proper place in modern constitutional law.

But let's begin with the present before getting to the beginning. This Note represents but one of many stabs at arguing that the Clause deserves an expanded role in constitutional law.(7) In fact, an opponent of these arguments commented last year that, "`[e]veryone,' we're told, now agrees that the Supreme Court took a wrong turn in the Slaughter-House Cases in 1873, when a narrow majority read the [Clause] out of the Constitution by construing it into irrelevancy."(8) If those of us lobbying on behalf of the Clause can be accused of beating a dead horse, so be it--an already dead Clause is impervious to worse harm, and the sound and attention we bestow may yet achieve a resurrection.

In Saenz, for the first time in over five decades, the Court has selected the Clause over its far more renowned contemporaries, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as a repository for personal liberties. There is at last a credible prospect that the Court may venture beyond the superfluous interpretation of the Clause it rendered in Slaughter-House. The need is thus all the more real to integrate the commentary and controversy surrounding the Clause and offer a principled conception of its history and meaning.

Part I of this Note traces the limited interpretation of the Clause that the Court adopted in Slaughter-House and that it recently maintained in Saenz. It suggests the Court may be poised to, and should, move beyond its currently cramped conception that the Clause protects only those rights of citizenship inherent in the federal structure and independently established under the Constitution. Part II then surveys and distills the largely chaotic history of the Clause's framing and ratification. It concludes that the Clause was intended to secure against state violation those fundamental rights essentially tautologically accepted as existing throughout the nation.

Part III specifies the role the Clause should play in our overall Fourteenth Amendment jurisprudence, meeting and addressing possible objections along the way. It offers a formulation whereby the Clause enshrines within the Constitution those rights that (1) are fundamental or "implicit in the concept of ordered liberty"; (2) are evinced by a clear consensus among the states; and (3) if established, do not unduly invade the realm of economic policy and allocations. According to this conception, the Clause is a constitutional device for preventing rogue states from backsliding at the expense of fundamental rights that have achieved almost universal recognition throughout the United States.

Finally, Part IV clarifies the contours of this formulation by exploring test cases that implicate the right to vote, specific aspects of the right to privacy, and a possible right to public education.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Answering Justice Thomas in Saenz: Granting the Privileges or Immunities Clause Full Citizenship within the Fourteenth Amendment
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.