San Diego Law Review


Eric R. Claeys

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This Article was prepared for a conference on Economic Liberties and the Original Meaning of the Constitution at the University of San Diego School of Law. The Article sheds light on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment by canvassing foundational acts of Parliament, colonial charters, constitutional provisions, and treatises referring to privileges or immunities from the seventeenth century through the mid-nineteenth century. Of these sources, the central one is Blackstone's Commentaries on the Law of England, and its discussion of the privileges or immunities of English subjects. Blackstone uses "privileges" and "immunities" to refer to civil laws securing natural rights of life, liberty, and property as understood in English law, religion, and political theory. Privileges and immunities refer specifically to civil laws that the commonwealth may refer specifically for the benefit of the commonwealth's members to the exclusion of aliens. Although these sources do not exhaust all the evidence relevant to the original meaning of the Fourteenth Amendment's Privileges or Immunities Clause, they do focus the debate. These authorities - especially the Commentaries - provide important evidence corroborating the hypothesis that the "privileges" and "immunities" in the Fourteenth Amendment require states to structure their civil laws to secure fundamental natural rights as understood in the Anglo-American political tradition. These sources provide important historical background making it easier to understand why Corfield v. Coryell (C.C. Pa. 1823) was regarded after the Civil War as a leading interpretation of "privileges" and "immunities" even though Corfield contradicted other relevant precedent. They provide important theoretical background suggesting that the verb "abridging" in the Privileges or Immunities Clause presumes that privileges or immunities have substantive content. They also highlight possibilities for further research - in nineteenth century immigration, property, and commercial law regulating the privileges and immunities of citizens.

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