At Law and Liberty, Devin Watkins: The Unenumerated Rights of the Privileges or Immunities Clause. From the introduction:
Does the Fourteenth Amendment’s Privileges or Immunities Clause include unenumerated rights, like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article that it does not. But that seems to be contradicted by the textual and historical foundation of the clause.
To understand the meaning of the Privileges or Immunities Clause in the Fourteenth Amendment, requires understanding the meaning of Article IV’s Privileges and Immunities Clause, which came first. We must start with the definition of each word according to the dictionaries of the era.[1] According to the relevant definitions in those dictionaries:
privilege” meant some particular advantage or right not universal
“immunity” meant freedom (in a more universal sense).
In other words, a “privilege” refers to the positive rights granted by government to some individuals, while an “immunity” referred to the general or universal rights of freedom for individuals. Together, they meant all rights. This has been demonstrated in many other contemporaneous contexts by Eric Claeys.[2]
While Article IV’s Privileges and Immunities Clause is stated in the affirmative (of what citizens are entitled to) and the Fourteenth Amendment’s Privileges or Immunities Clause is stated in the negative (of what cannot be taken away), what’s significant is that other parts of the text are different.
The Privileges or Immunities Clause speaks of the right of “Citizens of each State” being entitled to the rights “in the several States.” The citizen of one state cannot be denied by another state the same rights that state recognizes for its own citizens.
Meanwhile, the Privileges or Immunities Clause protects the rights “of citizens of the United States.” A state cannot refuse to recognize the rights recognized by the federal government. If there is a right against the federal government’s power, that same protection is applied against the state’s power. . . .
Posted at 6:09 AM