The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment

Randy E. Barnett* & Evan D. Bernick**

The Privileges or Immunities Clause of the Fourteenth Amendment reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .”¹ Upon confronting this language, the first question most ask is what exactly are the “privileges or immunities of citizens of the United States”? It was this very question that Justice Ruth Bader Ginsburg put to attorney Alan Gura during oral argument in McDonald v. City of Chicago,² as he was urging the Court to revive the Privileges or Immunities Clause to protect the right to keep and bear arms.³ “But I really would like you to answer the question that you didn’t have an opportunity to finish answering, and that is: What other . . . rights? What does the privileges and immunities of United States citizenship embrace?”⁴

Continue reading in the print edition . . .

© 2019 Randy E. Barnett & Evan D. Bernick. 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 authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution.

**Law Clerk to the Honorable Diane S. Sykes, United States Court of Appeals for the Seventh Circuit.

1 U.S. Const. amend. XIV, § 1.

2 McDonald v. City of Chicago, 561 U.S. 742 (2010).

3 See Transcript of Oral Argument at 3–5, McDonald, 561 U.S. 742 (2010) (No. 081521).

4 Id. at 8.