New Article: “The Once and Future Privileges or Immunities Clause”

September 12th, 2018

In 2010, on the eve of oral arguments in McDonald, Ilya Shapiro and I urged the Supreme Court to apply the right to arms against the states through the Privileges or Immunities Clause. And, we explained, the Court could do so without setting out aimlessly into the undiscovered country of untethered and unbounded unenumerated rights—by adapting the principles of Washington v. Glucksberg (1997). By only considering rights that are “deeply rooted” in our nation’s traditions, the Privileges or Immunities Clause could be cabined within the appropriate scope of historical practice without the flood waters rushing in. Alas, the Court didn’t take our bait—though curiously neither the majority nor dissenting opinions grappled with the privileges-or-immunities dimension.

Nearly nine years later, Ilya and I have returned to this topic. We will be presenting our paper, The Once and Future Privileges or Immunities Clause, at the 14th Amendment at 150 Conference.

Part I charts the birth and premature demise of the Privilege or Immunities Clause following the Slaughter-House Cases. Part II explores how McDonald v. Chicago had the potential to revive the Clause, but failed—or only succeeded in a necessary but solo concurring vote. Part III surveys how the lower courts have considered the Clause in the wake of McDonald: the courts continue to provide some judicial protection for the “right to travel,” but all other rights—including the liberty of contract—continue to be disregarded. Part IV forecasts a possible future for the Privileges or Immunities Clause.

The conference will be hosted on September 21, 2018 by the Institute for Justice and the Liberty and Law Center at Antonin Scalia Law School. Our panel starts at 11:10:

11:10-12:20pm Perspectives on “Privileges or Immunities”

Discussing the Privileges or Immunities Clause’s origins, purposes, meaning, and contemporary legal disputes.


Hon. Judge Don R. Willett (Fifth Circuit)


Josh Blackman (South Texas College of Law Houston)

Robert J. Cottrol (George Washington University Law School)

Anthony Sanders (Institute for Justice)

Ilya Shapiro (Cato Institute)

Rebecca E. Zietlow (University of Toledo College of Law)

If you are in the area, I hope you can attend.