Martin H. Redish (Northwestern University – Pritzker School of Law) and Brandon Johnson (JD, Northwestern, '18) have posted The Underused and Overused Privileges and Immunities Clause (Boston University Law Review, Vol. 99, No. 1535, 2019) (42 pages) on SSRN. Here is the abstract:
In this Article, the authors argue that Article IV’s Privileges and Immunities Clause has been seriously underused due to a series of puzzling and highly dubious Supreme Court decisions imposing artificial and counterproductive limitations on the Clause’s reach. They urge that with the removal of these harmful and misguided doctrinal restrictions, the Clause would serve the important function it was intended to serve: the avoidance of interstate friction and the prevention of the degeneration of the nation’s federal system. At the same time, the authors warn against the dangerous and unsupportable efforts by libertarian scholars to misuse the doctrine growing out of this Clause’s interpretation to create a constitutional portal by which the Clause can be manipulated into a textual source of unenumerated individual rights that would seriously threaten core notions of American democracy. Careful examination of both the Clause’s constitutional text and doctrine, as well as the relevant historical context, demonstrates that the libertrian approach unjustifiably transforms a structural provision designed to deal exclusively with issues of constitutional federalism into a sweeping judicial power to create individual rights found nowhere in the Constitution’s text. It is, then, only by avoiding the doctrinal underuse and the scholarly overuse that the Privileges and Immunities Clause can serve the valuable structural role it was clearly intended to serve.
Agreed as to both propositions!
(The article is from 2019, although just posted to SSRN. I'm linking to it now anyway, because it's an important article that may have been a bit overlooked when published).
Posted at 6:04 AM