The Originalist Privileges or Immunities Clause

July 17th, 2014

At the Originalism Blog, Mike Rappaport considers whether Griswold v. Connecticut could be justified on an originalist basis, through the privileges or immunities clause of the 14th Amendment:

But is Griswold in accord with the original meaning?  I don’t believe any of the justifications offered in Griswold – substantive due process, the 9th Amendment, emanations from penumbras – work from an originalist perspective.  But I do believe that another basis may do the trick.

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms).  Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time.  Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.  I will try to explain the basis for this view in a future post.

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States.  According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”

I take a very different view of the Privileges or Immunities Clause. As I discuss in Pandora’s Box, we should venture to understand how the Privileges or Immunities of citizenship were understood in 1868, at the time of the ratification of the 14th amendment. This is an application of what I’ve dubbed “originalism at the right time.” These were terms of art,with a distinct meaning. In McDonald, Justice Thomas recognized that among these privileges or immunities was the right the keep and bear arms.

Considering what rights are “prevalent” at a “particular time,” would seem akin to relying on a living notion of what liberty interests are protected by the due process of law. This view is consistent with Mike’s citation to Justice Harlan’s reasoning in Poe v. Ullman. This is also the view Justice Stevens adopted in McDonald v. Chicago (no one else joined).