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. …