December 10, 2008
The (Sad) History and (Hopeful) Future of 14th Amendment Privileges or Immunities
The Constitutional Accountability Center released a report by David H. Gans, Director of the CAC's Human Rights, Civil Rights, and Citizenship Program, and Douglas T. Kendall, CAC founder and president, titled The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. The report, as its title suggests, traces the history of the 14th Amendment P or I Clause. But it also argues for a more robust P or I Clause--a clause that provides a more obvious and less divisive vehicle for protection of substantive rights than the Due Process Clause--and offers evidence and hope for a more robust clause. The report:
This narrative pushes for a change in this constitutional conversation [on substantive Due Process], which is dividing Americans on a topic--substantive constitutional rights and freedoms--that should be holding us together. It tells the sad history of the Privileges or Immunities Clause, which was supposed to be the centerpiece of Section One of the Fourteenth Amendment. Instead, this Clause was written out of the Constitution in 1873 by a Supreme Court unwilling or disinclined to force the "new birth of freedom" Lincoln promised the nation at Gettysburg on a country that was by then retreating from the promises of Reconstruction. For 135 years, this critical constitutional text has laid dead or dormant.
This story of the creation and destruction of the Privileges or Immunities Clause is a page-turning history, filled with American heroes and villains, hope and bitter disappointment, which has never fully gotten its due in our history books. . . . But this narrative is about more than detailing this new scholarly consensus and helping to set the historical record straight. Two Supreme Court cases decided in the last 10 years--Saenz v. Roe (1999) and Heller v. District of Columbia (2008)--set the stage for the Privileges or Immunities Clause to finally assume its intended place as the vehicle through which fundamental rights and liberties of citizens are protected.
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