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Bret Boyce

Abstract

Nearly a century and a half after its adoption, debate continues to rage over the original meaning of the Fourteenth Amendment’s guarantees of basic rights. Of the three clauses in the second sentence of Section One, the latter two (the Due Process and Equal Protection Clauses) loom very large in modern Supreme Court decisions, while the first (the Privileges or Immunities Clause) is of minimal importance, having been invoked only once to strike down a state law. Originalists—those who hold that the Constitution should be interpreted according to its original meaning—have often deplored this state of affairs. Many have argued that from the perspective of original meaning, the Privileges or Immunities Clause is not the least important but rather “the most important Clause in the Amendment.” On this view, many of the constitutional rights today associated with the Due Process and Equal Protection Clauses were originally understood to be protected by the Privileges or Immunities Clause. For example, many originalists have criticized the substantive due process doctrine as oxymoronic. Any protection of substantive rights, they insist, must be found in the Privileges or Immunities Clause, as the Due Process Clause is about procedure only. Originalists have also argued that the Privileges or Immunities Clause, not the Due Process Clause, is the most plausible vehicle for the application of the guarantees of the Bill of Rights against the states. Likewise, many originalists have maintained that the Privileges or Immunities Clause, not the Equal Protection Clause, is the most important general mandate of legislative equal treatment, as the Equal Protection Clause requires only equality in the provision of the protective functions of government (which are principally executive and judicial), not in all legislative classifications. The Supreme Court’s current narrow reading of the Privileges or Immunities Clause dates back to its very first decision interpreting the Fourteenth Amendment, the Slaughter-House Cases, handed down only five years after the Amendment was ratified. In McDonald v. City of Chicago, the Supreme Court declined an invitation to overrule Slaughter-House and restore what the plaintiffs contended was the original meaning of the Privileges or Immunities Clause. This Article argues that the intractable ambiguities surrounding the historical meaning of the Fourteenth Amendment made the Court’s retreat from originalism in McDonald all but inevitable. This is due to the Amendment’s ambiguous text and history, resulting in no consensus among scholars and historians regarding the original meaning of the Privileges or Immunities Clause and hence of the Fourteenth Amendment as a whole. This Article focuses on the most prominent recent originalist interpretations, divided into two broad methodological groups: Historical Originalism and Abstract Originalism. This Article concludes that the absence of a clear original meaning of the Privileges or Immunities Clause (or of Section One as a whole) is a strong reason for rejecting originalism as a theory of constitutional interpretation.

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