The Privileges or Immunities Clause of the Fourteenth Amendment provides as follows: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Like other constitutional guarantees, the clause’s Delphic terms invite multiple interpretations. Some read it to empower courts to create previously-unrecognized “privileges or immunities.” Others limit it to a narrow category of rights, like the ones found in the Bill of Rights, a set that courts cannot enlarge. In 1872 the Supreme Court in the Slaughter-House Cases read the clause very narrowly, limiting it to a small category of rights, such as the right to travel interstate.
How the Privileges or Immunities Clause should be read was of little interest for more than a century after the Slaughter-House Cases. Recently, however, scholars have refocused their attention on the clause, and their commentary has sparked considerable debate over its proper interpretation. Does the clause authorize the courts to create new constitutional rights not elsewhere specified in the text of the Constitution? Is it limited to the narrow category of rights recognized in the Slaughter-House Cases? Should the Court reconsider the Slaughter-House Cases? Does Congress have a role to play – that is, can Congress identify “privileges and immunities” that the courts must protect? Join us for an Oxford style debate between two distinguished constitutional law scholars over these issues and how far the courts or Congress can expand the Constitution.
More About the Speakers
An Oxford Style Debate with
Randy E. Barnett
Carmack Waterhouse Professor of Legal Theory, Georgetown Law Center
The Honorable Stephen J. Markman
Justice, Michigan Supreme Court
Senior Legal Research Fellow