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. 

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Does Geography Affect Appointments to the Supreme Court?

It certainly used to.

Perhaps the most obvious examples are those from the early 19th century.  Appointments of new justices were once tied to the creation of new circuit courts.  And that was for good reason:  Circuit courts were not the intermediate courts of appeals of today (with few exceptions, the most notable of which were the “Midnight Judges” that served from 1801 until 1802); they were largely nisi prius courts, functioning alongside district courts, with only limited appellate review.  But they did not have their own judges.  Various combinations of justices from the Supreme Court and judges from the district courts sat to form the circuit courts.

When Congress created the Seventh Circuit in 1807, therefore, which consisted of the new states of Kentucky, Tennessee, and Ohio, it required that the new justice assigned to that seat hail from there.  The result was Jefferson’s appointment of Thomas Todd of Kentucky. 

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Violence and Social Order

The L.A. Times published an op-ed on Monday touting Randolph Roth’s recent book, American Homicide (Wash. Post review). Roth is a historian at OSU who studies violence and social change, a subject I am intensely interested in as well. In American Homicide, Roth argues that the homicide rate in the United States tends to spike not as a result of gun ownership or poverty, but when people lose faith in their government. He claims that the first such notable rise in violence occurred in the aftermath of the Civil War, “a catastrophic failure in nation-building,” when a significant proportion of the population became extremely suspicious of their fellow Americans.

If true, that thesis bodes ill for our current situation, in which oddly apocalyptic rhetoric over ostensibly ordinary government actions seems to be on the rise. Loss of a debate now seems to no longer be an invitation to try harder next year, but rather conclusive evidence that the entire system is corrupt. While some have expressed the fear that such rhetoric will lead to large outbursts of explicitly anti-government violence, such as that planned by the militia members recently arrested in Michigan, the connection between overwrought rhetoric and such extremists seems tenuous at best. What seems more likely is that heated rhetoric augurs simply more violence, not violence directed at a particular target.

But predicting the future is treacherous business; it is far safer to try to explain the past. And Roth’s thesis, as I understand it (I haven’t read the book), helps explain some aspects of a phenomenon I’ve been interested in for a while now—the outbreak of violence in Tombstone, Arizona in 1881 and 1882, usually referred to as “the Gunfight at the O.K. Corral.”

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