Rediscovering the Privileges or Immunities Clause

The Privileges or Immunities Clause of the Fourteenth Amendment has been largely dormant since the Slaughterhouse Cases of 1873.  Courts generally treat the Clause as adding little or nothing to the Fourteenth Amendment’s two better-known provisions, the Equal Protection and Due Process Clauses.  However, Bruce Boyden argues  in a new paper on SSRN that the Clause actually does have a distinctive role to play in constitutional doctrine, specifically, by regulating conflicts between states over competing “status regimes.”

As Bruce explains, America’s prototypical “status regime conflict” related to the rights of northern blacks who traveled to pro-slavery states prior to the Civil War.  Much litigation resulted from the refusal of some southern and western states to recognize the rights of such travelers.  Based on a review of the debates arising from these antebellum cases and the history surrounding the adoption of the Privileges or Immunities Clause, Bruce argues that the Clause was intended to ensure that interstate travelers could retain the legal status they enjoyed in their home states notwithstanding entrenched national divisions over legal status questions.

For Bruce, the ongoing significance of this history is that the Privileges or Immunities Clause should continue to be seen as a device for resolving status regime conflicts. 

Continue ReadingRediscovering the Privileges or Immunities Clause

Lost Potential

(Part 1 of 2) Back when I was a teenager, I used to play Dungeons & Dragons with a group of friends. D&D, for those who have never played it, is essentially a pen-and-paper version of World of Warcraft. Instead of a computer running the game, that role in D&D was served by a person—the “Dungeon Master,” or DM—whose job it was to map out a location in advance and fill it with monsters, traps, and other characters and events, and keep that material hidden from the players until they reached certain points in the game. Whereas computer games display information visually to the players as they wander through the game world, in D&D the DM simply describes what happens, according to his or her pre-established plan and a set of fixed rules governing things like combat.

One of my friends was a particularly good DM. He would create settings full of portentous omens, intrigue, and mysterious characters. Seemingly random encounters would lead to unexpected coincidences. The world he created seemed richly populated with deeper meaning, and my friends and I loved exploring it.

But we ultimately discovered that there was no deeper meaning; there was no there there. He was making it all up on the fly, and when we started scratching beyond the surface, improbable barriers such as invulnerable gods and invincible monsters began to block our path. The narrative structure of the world collapsed under its own weight.

I’m reminded of all that by the final season of Lost. Lost, I think, illustrates a trap that the creators of D&D dungeons and network television series alike are apt to fall prey to: it is much, much more tempting to build suspense than to resolve it.

Continue ReadingLost Potential

Health Reform and Racial and Ethnic Health Disparities

One of the most troubling aspects of the U.S. health care system is the existence, and extent, of racial and ethnic health disparities. Research has amply documented that members of racial and ethnic minority groups receive fewer health care services and lower quality health care than non-minority patients (see, for example, the rather damning portrait drawn by the Institute of Medicine’s 2003 study titled “Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care”). These disparities remain even when insurance status, socioeconomic status, and other important factors are controlled for in scientific studies.

There are many likely causes of race- and ethnicity-based health disparities. Among them: patient-level variables such as cultural preferences, mistrust of health care providers, and degrees of knowledge; system-level factors such as the geographic availability of health care providers, the use of managed care in publicly sponsored health care programs, and a general lack of institutional funding for language interpretation and translation services; and provider-level variables such as prejudice, stereotyping, and clinical uncertainty when treating minority patients.

Yet for all the evidence showing the existence of racial and ethnic health disparities, government agencies, health care providers, and health plans and insurers do not routinely collect data pertaining to patients’ race, ethnicity, and primary language.

Continue ReadingHealth Reform and Racial and Ethnic Health Disparities