Kurt Lash comments here on the relevance of 1868 history for the interpretation of the Privileges or Immunities Clause. Kurt argues,
If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment. Thus, to find the original meaning of the incorporated Establishment Clause, we must look to the 1860s, not the 1790s.
This is true to some extent: the issue of original meaning concerns, of course, what "privileges or immunities of citizens of the United States" expressed in the 1860s. However, whether the 1860s' typical understanding of church-state relations is in turn relevant to that meaning will depend on what the privileges-or-immunities language actually expressed. Only if that meaning has an implicit temporal indexical–e.g., if the language of the Privileges or Immunities Clause is tolerably paraphrased as "constitutional rights of American citizens as currently understood"–will the understanding of church and state circa Reconstruction (as opposed to the Reconstructors' understanding of the language they added to the Constitution) be decisively relevant to the Fourteenth Amendment question. Some other possible paraphrases–e.g., "rights originally expressed in the federal Constitution"–will point to 1791 as the key time for determining the application of the Fourteenth Amendment, while others–e.g., "rights generally enjoyed by American citizens" (which I argue was part of the meaning here)–will point toward an analysis of American civil liberty today. Looking at the rights prevalent in American civil liberty circa 1791 or circa 2013 to determine the application of the Privileges or Immunities Clause is not an abandonment of originalism, as long as the criterion for evaluating these paraphrases–that is, "what did the language of the Privileges or Immunities Clause express when the Fourteeenth Amendment was adopted?"–is properly put in originalist terms.
Posted at 2:42 PM