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.