Saturday, November 14, 2009
Teaching the Fourteenth Amendment’s Privileges or Immunities Clause in a Constitutional Law course has long been a challenging endeavor. For many years, the doctrine started and ended with The Slaughter-House Cases, 83 U.S. 36 (1872), in which a professor’s role was largely to address the cynicism of students who concluded that the Court’s majority had obliterated the plain language of the Constitution. Ten years ago, Saenz v. Roe, 526 U.S. 489 (1999), initially held the promise of revivifying the clause, but the doctrine did not develop beyond Saenz’s applicability to the right to travel across state lines, which was also encompassed by the Equal Protection Clause, Shapiro v. Thompson, 394 U.S. 618 (1969).
Recently, however, the Privileges or Immunities Clause has been much discussed, including in the context of the applicability of the Second Amendment to the states in the recent grant of certiorari in McDonald v. City of Chicago, documents here, previously discussed here, in which the question is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”But how to teach the P or I Clause? It is possible to discuss it in the context of the forthcoming McDonald after D.C. v Heller, 554 US ___ (2008), but it seemed to me that Privileges or Immunities deserved its own discussion.
This year, I assigned not only portions of The Slaughter-Houses Cases and Saenz v. Roe, but a brief piece from The Wall Street Journal, which provides a nice rehearsal of the issues and a judgment that scholars and attorneys on “the left and right” seem to be uniting in their opinion that The Slaughter-House Cases were wrongly decided. I also gave students a choice of one of two pieces:
The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, a 50 plus page report intended for a broad audience, published by the Constitutional Accountability Center in 2009, available here,or
Ink Blot or Not: the Meaning of Privileges and/or Immunities, a 33 page law review article intended for a scholarly audience, by Richard Aynes, 11 Pa. J. Const. Law 1295 (2009), available on ssrn here.
I chose these pieces because they were recent, accessible, and relatively short. Based on a class questionnaire students submitted anonymously, students split fairly evenly between the two pieces, responding to the query to explain their choice of article with various reasons including favoring or disfavoring the intended audience, the titles and subtitles, the mentioning of the Constitutional Accountability Center in the Wall Street Journal article, chance, download ease, and a great many “recommendation by classmate” (which nevertheless also split evenly). Indeed, the students’ pre-class discussions were evident in the larger class discussion, and seemingly in their answers to some of the other questions I posed in the questionnaire. The two final questions (out of a mere five questions) were most gratifying to read. I asked students to quote a sentence or passage from the article they read which they found “most appealing” and then “most troubling.”
Reading these responses after class, I was impressed by the students’ thoughtfulness and insight, as well as some of their humor. (Students who read Ink Blot appreciated, and were inspired by, Aynes’ wit.) While it can be difficult to discuss constitutional theory in a large classroom, contemporary background reading with some student choice, accompanied by in-class focus questions and adequate time for small-group discussion, allowed for wide-participation and much enthusiasm about the potential for change in the Fourteenth Amendment's Privileges or Immunities Clause doctrine.