Ilan Wurman (University of Minnesota Law School) has posted The Antislavery Reading of Article IV (Constitutional Commentary, Volume 40 (forthcoming)) (25 pages) on SSRN. Here is the abstract:
Article IV of the U.S. Constitution contains a Privileges and Immunities Clause, a predecessor to the Fourteenth Amendment's Privileges or Immunities Clause. Article IV required states to treat citizens of other states equally with their own. In a recent book, Randy Barnett and Evan Bernick claim that antislavery theorists advanced an unorthodox reading of the clause according to which it nationalized the rights of citizens, and point to this unorthodox reading as evidence that the Fourteenth Amendment to the U.S. Constitution was intended to "incorporate" the Bill of Rights against the states or guarantee other fundamental rights. This review argues that the antislavery thinkers did develop an unorthodox reading of Article IV, but not the one the authors have advanced. Rather, these thinkers argued that Article IV required not only interstate nondiscrimination, but also nondiscrimination among a state's own citizens. If correct, this understanding of the antislavery view provides additional support for the equality reading of the Fourteenth Amendment's Privileges or Immunities Clause and casts doubt on the more commonly accepted fundamental rights reading advanced by the authors.
Posted at 6:27 AM