The Original Public Understanding of Privileges or Immunities

By Ward, James J. | Brigham Young University Law Review, March 1, 2011 | Go to article overview

The Original Public Understanding of Privileges or Immunities


Ward, James J., Brigham Young University Law Review


[This soldier] desires to have his supper at your eating house, and as your house is a public one, it is expected at these headquarters that no distinction be made on account of color or race. If this soldier does not receive his meal, and is not treated in the same manner as any of your customers . . . your establishment will be closed . . .1

Unoffending citizens, in the pursuit of their private business, are rudely interfered with, and their houses closed, because they did not choose to admit negroes to their table upon the same footing as white men.2

I. A TEXTUAL ORPHAN

The Constitution tells us more about who we are as a people than its scant four thousand words would suggest. Its structure shows what the Framing generation wanted from government, and what they feared from it. The Amendments help chronicle the beginnings of the great democratization, the Radical moment in the 1860s and 70s, the Progressive moment, and the Executive crises of the mid-twentieth century. The document and its interpretation also tell us about who we are by illustrating the paths we chose not to follow, or perhaps the paths that were closed off from us.

After the end of the Civil War, Americans began to consider questions besides who would defeat Robert E. Lee. The convulsive effect of the Rebellion reached all aspects of American life, and the law was no exception. The entire legal superstructure that developed around African bondage, its badges, and its incidents was either to be destroyed or reconciled to the views of the victorious Union. Slavery, of course, would have to be abolished, but much more remained doubtful or at least questionable. Would the federal government be supreme over the states? Would blacks ascend to full participation in civil society? Would the South remain under occupation forever, with freedmen's rights secured only by the armies of bluecoats in her midst? The answers to these questions were not clear in the immediate aftermath of the struggle.

Soon, though, Andrew Johnson's management of Reconstruction would falter, and the Republican majorities in Congress would place their stamp on constitutional history without him. In a period of dizzying governmental activity, the Radical Republicans enacted sweeping reform - including the first Civil Rights Acts, the establishment of agencies for their implementation, and three constitutional amendments.3 Among these, the Fourteenth Amendment was the clearest effort by Republicans to define the new order of government, and to re-orient individuals and states in their relationship to Washington.

The standard interpretation of the Fourteenth Amendment - as understood by the Supreme Court and most legal scholars - is that the Due Process4 and Equal Protection Clauses5 represent sources of modern liberty.6 Most believe that the Privileges or Immunities Clause7 had no radical or substantive effect at the time of passage, but instead reflected a traditional baseline of rights. Others suggest that the Privileges Clause might have had meaning, but, like a mute Lazarus, its resurrection would make no difference because courts would interpret the Clause to the same effect as the other Clauses in Section I.8

These standard approaches - like many rules of thumb - are ideas that almost make sense. Unfortunately, because they are so reliant on law office history, misconceptions, and false dichotomies they ought to have fallen into disuse. One might conceive of a system in which the Constitution may be parsed to find those portions that are important (presumably the Commerce Clause) and those that are not (presumably the Congressional Adjournment Clause), but we cannot presume its authors to have written superfluous Clauses that ratifiers understood to be irrelevant. Consequently, if there is an appropriate and discernible reading of the Privileges or Immunities Clause, we should seek it with zeal.

Some believed that McDonald v. …

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 ...
Default project is now your active project.
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

The Original Public Understanding of Privileges or Immunities
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
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.