The Meanings of the "Privileges and Immunities of Citizens" on the Eve of the Civil War

David R. Upham*

The Fourteenth Amendment to our Constitution provides, in part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”³ This “Privileges or Immunities Clause” has been called “the darling of the professoriate.”⁴ Indeed, in the last decade alone, law professors have published dozens of articles treating the provision.⁵

This Article proceeds from the same professorial ardor. Still, relative to many other treatments, this Article is both more modest and more ambitious. On the one hand, I do not propose to offer a full account of the original meaning of the Clause. On the other, I do aim to help build a genuine scholarly consensus by presenting compelling evidence that has been, for the most part, largely overlooked by contemporary scholars.⁶

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© 2016 David R. Upham. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Politics, University of Dallas. J.D., University of Texas; Ph.D., University of Dallas. I give special thanks to Richard Dougherty and Thomas West for their guidance, fifteen years ago, in preparing the dissertation on which this article is partly based. I am also grateful to Richard Aynes, Scott Broyles, Andrew Hyman, and Earl Maltz for their very helpful comments on drafts of this Article.

3 U.S. Const. amend. XIV, § 1.

4 Transcript of Oral Argument at 7, McDonald v. City of Chicago, 561 U.S. 742 (2010) (No. 08-1521) (comment of Justice Scalia).

5 A Lexis search of articles published between 2006 and 2015 inclusively shows nearly fifty law journal articles with titles containing the words “privileges” and “immunities,” thirty-six of which concerned the Fourteenth Amendment. See, e.g., David S. Bogen, Mr. Justice Miller’s Clause: The Privileges or Immunities of Citizens of the United States Internationally, 56 Drake L. Rev. 1051 (2008); Eric R. Claeys, Blackstone’s Commentaries and the Privileges or Immunities of United States Citizens: A Modest Tribute to Professor Siegan, 45 San Diego L. Rev. 777 (2008); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1 (2007).

6 Some of the evidence presented here is now much more readily available to scholars, thanks to the explosive growth of scanned text, especially via Google Books and other sources of “big data.”