Answering Justice Thomas in Saenz: granting the Privileges or Immunities Clause full citizenship within the Fourteenth Amendment.

Justice Thomas's dissent from the Supreme Court's decision in Saenz v. Roe,(2) handed down in May of this past year, signals a possible reawakening of the long comatose Privileges or Immunities Clause of the Fourteenth Amendment ("the Clause"). In Saenz, Justice Stevens's majority opinion called upon the Privileges or Immunities Clause of the Fourteenth Amendment(3) as a substantive guarantee of personal liberties, specifically "the right of [a] newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State."(4) This decision marked the first time in over sixty years that the Court relied on the Clause(5) and recapitulated the limited conception of it famously espoused over a century ago in the Slaughter-House Cases.(6) The decision may signal a new found willingness to resuscitate a clause that has effectively been read out of the Fourteenth Amendment and to put it to work as a living, breathing part of our Constitution. This Note accepts Justice Thomas's invitation: It provides an account of the history of the Privileges or Immunities Clause of the Fourteenth Amendment, the intent of its framers, and its proper place in modern constitutional law.

But let's begin with the present before getting to the beginning. This Note represents but one of many stabs at arguing that the Clause deserves an expanded role in constitutional law.(7) In fact, an opponent of these arguments commented last year that, "`[e]veryone,' we're told, now agrees that the Supreme Court took a wrong turn in the Slaughter-House Cases in 1873, when a narrow majority read the [Clause] out of the Constitution by construing it into irrelevancy."(8) If those of us lobbying on behalf of the Clause can be accused of beating a dead horse, so be it--an already dead Clause is impervious to worse harm, and the sound and attention we bestow may yet achieve a resurrection.

In Saenz, for the first time in over five decades, the Court has selected the Clause over its far more renowned contemporaries, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as a repository for personal liberties. There is at last a credible prospect that the Court may venture beyond the superfluous interpretation of the Clause it rendered in Slaughter-House. The need is thus all the more real to integrate the commentary and controversy surrounding the Clause and offer a principled conception of its history and meaning.

Part I of this Note traces the limited interpretation of the Clause that the Court adopted in Slaughter-House and that it recently maintained in Saenz. It suggests the Court may be poised to, and should, move beyond its currently cramped conception that the Clause protects only those rights of citizenship inherent in the federal structure and independently established under the Constitution. Part II then surveys and distills the largely chaotic history of the Clause's framing and ratification. It concludes that the Clause was intended to secure against state violation those fundamental rights essentially tautologically accepted as existing throughout the nation.

Part III specifies the role the Clause should play in our overall Fourteenth Amendment jurisprudence, meeting and addressing possible objections along the way. It offers a formulation whereby the Clause enshrines within the Constitution those rights that (1) are fundamental or "implicit in the concept of ordered liberty"; (2) are evinced by a clear consensus among the states; and (3) if established, do not unduly invade the realm of economic policy and allocations. According to this conception, the Clause is a constitutional device for preventing rogue states from backsliding at the expense of fundamental rights that have achieved almost universal recognition throughout the United States.

Finally, Part IV clarifies the contours of this formulation by exploring test cases that implicate the right to vote, specific aspects of the right to privacy, and a possible right to public education. It concludes that (1) a resident's right to vote in a state gubernatorial election constitutes a quintessential privilege/immunity of U.S. citizenship; (2) existing constitutional protections for both a right to contraception and a right to peruse the materials and ideas one pleases in one's own home can be justified under the Clause; (3) the right to engage privately in homosexual relations without fear of prosecution currently has not achieved the status of a privilege/immunity; and (4) the right to a most basic level, and only a most basic level, of public education should be understood as a privilege/immunity.

I. OUR CONSTITUTION SAYS THE SAME THING TWICE: HOW THE CLAUSE'S TEXT BECAME EMPTY SYLLABLES

A. Slaughter-House Strikes

The basic holding of Slaughter-House has been exhaustively discussed and criticized for effectively reading the Privileges or Immunities Clause of the Fourteenth Amendment into utter obscurity.(9) The cases arose soon after the Clause's framing in 1866 and final ratification in 1868.(10) The plaintiffs were slaughterhouse operators who challenged legislation that purported to protect the health and safety of the public at large by restricting slaughterhouse operations within the city of New Orleans.(11) The plaintiffs argued that the Fourteenth Amendment's protection of privileges and immunities embraced economic property rights and that the legislation unconstitutionally encroached on their rights to continue slaughterhouse operations.(12)

The Court's opinion summarily rejected any suggestion that the Privileges or Immunities Clause included "those rights which are fundamental."(13) Instead, Justice Miller's majority opinion perceived in the Fourteenth Amendment "a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning [its] true meaning."(14) That purpose was simply the abolition of slavery and "the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him."(15) The Court stopped short of saying "that no one else but the negro can share in this protection," for "if other rights are assailed by the states which properly and necessarily fall within the protections of the [Fourteenth Amendment], that protection will apply, though the party interested may not be of African descent."(16) Still, the Court determined that the eradication of slavery was the "pervading spirit" of all of Section 1 of the Fourteenth Amendment's provisions and that slavery was "the evil which they were designed to remedy."(17)

The Court then decided that the inclusion in Section 1 of the Fourteenth Amendment of a definition of U.S. citizenship, as distinct from state citizenship, signaled that the Amendment spoke "only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States."(18) Those privileges and immunities "belonging to [a] citizen of the State as such ... must rest for their security and protection where they ha[d] heretofore rested; for they are not embraced by [the Privileges or Immunities Clause]."(19) The Court bristled at the suggestion that the Clause was meant "to bring within the power of Congress the entire domain of civil rights [that had previously] belong[ed] exclusively to the States."(20)

The Court instead concluded, over a strong dissent from Justice Field,(21) that the rights the Clause bestowed were exactly "the same" as those of "the corresponding [Privileges and Immunities Clause(22)] found in section two of the fourth article [of the Constitution]."(23) These protections of Article IV, Section 2 secure against state encroachment only those rights of citizenship that spring inexorably from the federal powers and structure established under the Constitution.(24) Examples of such rights include the right to exercise federal rights to assemble and petition for redress of grievances and to apply for a writ of habeas corpus; to visit the seat of the federal government and participate in its offices; to receive federal protection while abroad; and, as reiterated in Saenz, to become a resident of any state through bona fide residence and enjoy the same rights as those enjoyed by any other citizen of that state.(25)

Of course, if the Clause

   only refers, as held by the [Slaughter-House] majority ..., to such
   privileges and immunities as were before its adoption specially designated
   in the Constitution or necessarily implied as belonging to citizens of the
   United States, it was a vain and idle enactment, which accomplished
   nothing, and most unnecessarily excited Congress and the people on its
   passage.(26)

The Slaughter-House decision nonetheless construed the protections of the newly passed Clause as coextensive with those already secured under the Constitution.(27) and core language of the Fourteenth Amendment was rendered mere surplusage and banished into irrelevancy.

B. An Attack of Constitutional Conscience: The Clause Breathes a Gasp

The Clause's pulse flickered briefly between 1935 and 1940. In Colgate v. Harvey,(28) the Court determined that a state tax targeting income from outside the state while exempting income from inside the state violated the Clause.(29) That decision was overruled, however, five years later by Madden v. Kentucky.(30) Since then, the only attention the Clause received was from commentators; the Clause was a dead letter for the Supreme Court.

C. Saenz's Salvo: A Return to Slaughter-House or the Beginning of Something New?

The Court's decision in Saenz technically does nothing more than restore the old Slaughter-House doctrine. But while Saenz does not alter or expand that doctrine, it does reassert it for the first time in over fifty years. The Court's reliance on the Clause to invalidate legislation, and its recognition of the Clause as a source of substantive constitutional protections, does something to restore the Clause's vitality. The simple resurrection of the Clause as an operative part of our Constitution is certain to spark fresh debate over its meaning and role. As such, it is important to chart precisely where we stand after Saenz before delving further into the Clause's purpose and potential.

In Saenz, Justice Stevens wrote for the majority. He invalidated a California law that limited Temporary Assistance to Needy Families (TANF)(31) benefits available to newly arrived residents (those residing in the state for less than one year) to the level of benefits they received in their state(32) of prior residence.(33) At a basic level, the Court thereby continued an established line of precedent holding it unconstitutional for states to limit welfare benefits so as to discourage interstate migration.(34)

In prior cases, however, the Court simply assumed that the right to interstate travel was a fundamental right despite "recurring differences in emphasis within the Court as to the source of the constitutional right."(35) Saenz made the crucial move of transplanting right-to-travel jurisprudence--at least as it applies to the right to settle and obtain residence in another state--from its ill-defined hanging place under the constitutional aegis to the hitherto defunct peg of the Privileges or Immunities Clause of the Fourteenth Amendment.(36) This move did not alter existing doctrine but merely rationalized it: The Privileges or Immunities Clause was construed just as it was in the Slaughter-House Cases, safeguarding rights necessarily attaching to federal citizenship such as the right to travel and settle freely in different states, and the right to travel retains the same preexisting constitutional protections, albeit now with a better explicated justification.

Yet members of the Court took notice. Chief Justice Rehnquist in his dissent was all but incredulous that the majority would "breathe[] new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment."(37) He did not believe that "any provision of the Constitution--and surely not a provision relied upon for only the second time since its enactment 130 years ago--require[d] th[e] [majority's] result."(38)

Justice Thomas was more pensive and less dismissive in dissenting from the majority's use of the Privileges or Immunities Clause in achieving its result. While it came to him "as quite a surprise that the majority relic[d] on the Privileges or Immunities Clause at all in this case," Justice Thomas actually bemoaned the fact that "[t]he Slaughter-House Cases sapped the Clause of any meaning."(39) He therefore remained "open to reevaluating [the Clause's] meaning in an appropriate case" and invited further inquiry such as that contained here.(40)

The central dispute between the majority and dissents arose over application of the doctrine rather than over the doctrine itself. The basic question was whether California's differential treatment, for purposes of awarding TANF benefits, of newly-arrived residents from various states versus residents who had lived in California for over a year was (a) an artificial impediment to new residents attaining equal status with other state residents, or (b) a threshold requirement to ascertain bona fide residency.(41) The majority found it the former and therefore declared it unconstitutional.(42) Chief Justice Rehnquist's dissent, joined by Justice Thomas, found it the latter and would uphold the differential treatment as a permissible means of ensuring that potential welfare recipients actually reside in a state before they receive benefits from it.(43) It is beyond the scope of this Note to delineate and choose between these competing views. But it does bear noting that the majority likely found the distinction drawn between newly arrived residents from different states (whose benefits would vary depending upon the level of benefits they received in their states of prior residence), as opposed to the distinction drawn between those in the state for less than one year and those in the state for more than one year, most striking and most suspect.(44)

In any event, the Court's use of the Privileges or Immunities Clause had little to do with the actual doctrinal debate between majority and dissent(45) and the decision reached. Instead, a conscious and conspicuous decision was made to turn back to the Clause, in a case in which doing so was unnecessary to the Court's holding, and recall the Clause into active service. That use has undoubtedly served to revitalize the Clause, however modestly. And to the extent that the Clause's future use is not only unchallenged, but also invited by a dissenting justice, this may presage greater appetite on the part of the Court for revisiting the Clause and its meaning.

Justice Thomas's invitation in his Saenz dissent(46)--to reexamine what the "framers"(47) of the Fourteenth Amendment actually intended their Privileges or Immunities Clause to mean--thus seems apt. But one intent upon delving into that history should not expect too much for, as others have noted, the Clause's framing is shrouded and blurred beneath a veil of confusion, obfuscation, and question-begging.(48) Yet in sifting through the relevant history, certain features become clear and help illuminate analysis of the Clause. It is to that history and to those features that I now turn.

II. SOLVING AN ENIGMA: UNRAVELING THE CLAUSE'S TANGLED HISTORY

A. The Clause in Context: Interplay with the Civil Rights Bill

It is essential to keep in mind the basic context in which the Clause and the rest of the Fourteenth Amendment were framed. The Fourteenth Amendment arose largely to provide constitutional justification for Congress's prior passage of the Civil Rights Bill in 1866,(49) which combated the primary evil of the "black codes" used to deny African Americans civil rights.(50) The Bill had been passed in the aftermath of the Civil War to prohibit discrimination on account of race in civil rights and to establish equality of basic property rights and legal protections regardless of race--in essence, "`to give effect' to the Thirteenth Amendment [abolishing slavery] and to `secure to all persons within the United States practical freedom.'"(51)

It is therefore unsurprising that early drafts of the Amendment's first section read as a constitutional authorization for Congress to act: "`Congress shall have power to make all laws which shall be necessary and proper to....'"(52) Only later did the text change from a legislative charter to a proscription that the courts would construe and enforce: "`No State shall....'"(53) The immediate task at hand was to empower Congress to enforce constitutional principles of general application, thereby authorizing prior passage of the Civil Rights Bill and its prospective enforcement against the former Confederate states.(54) During the debates surrounding the Fourteenth Amendment's framing, the provisions of Section 1 of the Fourteenth Amendment were "treated as though they were essentially identical with those of the [Civil Rights Bill]" such that passage of the Amendment would unquestionably grant Congress the power to pursue that legislation.(55)

It is tempting therefore to limit the Clause's admittedly cryptic meaning, as Slaughter-House did, to the framers' immediate purpose of authorizing prior passage of the Civil Rights Bill. But we must avoid the mistake of conflating the framers' immediate purpose with their larger concept;(56) a constitutional principle necessarily transcends the pragmatic and political considerations that spurred it. Indeed, this conflation of the framers' at-times limited conception of the Amendment and Clause with the broader concept they spawned in crafting their language is the very mistake the Slaughter-House decision made. That mistake has profoundly stymied the Clause's meaning and construction--in a real sense, it betrays the historical mission of the Amendment and the Clause: to identify vital principles and elevate them above the political fray so as to repair a fractured nation and reshape its constitutional design.

The framers themselves evidently recognized as much. For in authorizing prior passage of the Civil Rights Bill, they deliberately crafted the Amendment's language to elevate the protections it embodied above the political fray and drafted broad language that would create principles of lasting permanence and vitality.(57) "Race discrimination, broadly conceived, was the framers' target, but their natural rights--declaratory theory led them to use broad, sweeping language to accomplish specific, historically defined ends."(58)

B. The Framers' Perspective: The Contemporary Conception of the Clause

Alas, the Amendment's proponents were far too complacent when it came to crystallizing the exact meaning of the Privileges or Immunities Clause. For them, Justice Washington's prior articulation in Corfield v. Coryell(59) of certain "fundamental principles"(60) embodied in Article IV, Section 2 held great sway.(61) As such, proponents largely settled for Justice Washington's pithy but unhelpful characterization of those fundamental rights as being "more tedious than difficult to enumerate."(62)

In fact, for John Bingham, the central champion of the Privileges or Immunities Clause, the Clause's "`euphony and indefiniteness of meaning were a charm.'"(63) It was Bingham who initially proposed the language of privileges and immunities as a member of the joint committee charged with framing the Fourteenth Amendment, and he did so at an early stage.(64) He was concerned with protecting not only African Americans but also "`the thousands and tens of thousands ... of loyal white citizens of the United States whose property, by State legislation, ha[d] been wrested from them under confiscation.'"(65) Bingham envisioned that the Clause would serve a vital role in securing substantive protection for certain fundamental fights of the sort enumerated in Corfield and previously violated by the states.(66)

But determining the exact status of constitutional protections in 1866 proved a source of chronic confusion to Bingham and many others in the debates surrounding the Fourteenth Amendment. Barron v. Baltimore(67) had stated in 1833 that the Bill of Rights' protections "contain no expression indicating an intention to apply them to the state governments" and that the "Court cannot so apply them."(68) Yet Bingham later (mis)characterized Barron as holding that the Bill of Rights was indeed "`binding upon'" the states, with Congress simply lacking power of enforcement.(69)

Bingham thus believed that the states were already bound by the existing Bill of Rights, or at least some portion of it, and therefore had violated the Constitution in their treatment of African Americans.(70) To him, the Clause would make express that which was already contained in the Constitution but which was nonetheless unenforceable against the states(71) and provide an "`express grant of power'" for Congress to protect those fundamental fights hitherto presumed to exist, but recently cast asunder by the southern states.(72)

Bingham's last major speech in the House debates elaborated on his consistent stance that the Amendment as a whole, and the Clause in particular, would expressly secure fights already tacitly understood to exist but otherwise subject to violation by individual states.

      "The necessity for the first section of this amendment to the
   Constitution ... is one of the lessons that have been taught to ... all the
   people of this country by the history of the past four years of terrific
   conflict.... There was a want hitherto, and there remains a want now, in
   the Constitution of our country, which the proposed amendment will supply.
   What is that? It is the power in the people, the whole people of the United
   States, by express authority of the Constitution to do that by
   congressional enactment which hitherto they have not had the power to do,
   and have never even attempted to do; that is, to protect by national law
   the privileges and immunities of all the citizens of the Republic and the
   inborn rights of every person within its jurisdiction whenever the same
   shall be abridged or denied by the unconstitutional acts of any State.

      Allow me ... to say that this amendment takes from no State any right
   that ever pertained to it. No State ever had the right, under the forms of
   law or otherwise, to deny to any freeman the equal protection of the laws
   or to abridge the privileges or immunities of any citizen of the Republic,
   although many of them have assumed and exercised the power, and that
   without remedy....

      ... [M]any instances of State injustice and oppression have already
   occurred in the State legislation of this Union, of flagrant violations
   of the guarantied [sic] privileges of citizens of the United States, for
   which the national Government furnished and could furnish by law no remedy
   whatever. Contrary to the express letter of your Constitution, `cruel and
   unusual punishments' have been inflicted under State laws within this Union
   upon citizens, not only for crimes committed, but for sacred duty done, for
   which and against which the Government of the United States had provided no
   remedy and could provide none.

      ... [T]he words of the Constitution that `the citizens of each State
   shall be entitled to all privileges and immunities of citizens in the
   several States' include, among other privileges, the right to bear true
   allegiance to the Constitution and laws of the United States, and to be
   protected in life, liberty, and property.

      ... There was in the Constitution of the United States an express grant
   of power to the Federal Congress to lay and collect duties and imposts and
   to pass all laws necessary to carry that grant of power into execution. But
   ... that body of great and patriotic men looked in vain for any grant of
   power in the Constitution by which to give protection to the citizens of
   the United States resident in South Carolina against the infamous provision
   of the ordinance which required them to abjure the allegiance which they
   owed their country. It was an opprobrium to the Republic that for fidelity
   to the United States they could not by national law be protected against
   the degrading punishment inflicted on slaves and felons by State law. That
   great want of the citizen and stranger, protection by national law from
   unconstitutional State enactments, is supplied by the first section of this
   amendment. That is the extent that it hath, no more; and let gentlemen
   answer to God and their country who oppose its incorporation into the
   organic law of the land."(73)

This is surely a powerful, if tangled exposition of the Privileges or Immunities Clause as Bingham understood it and represented it before the House. And it makes absolutely plain that he believed certain abstract fundamental rights, of the sort broadly sketched in Corfield, existed as a matter of constitutional fact.(74) The Clause was Bingham's instrument for newly empowering the federal government to enforce these fundamental rights, which he viewed as previously enshrined within the Constitution and binding upon the states,(75) against recalcitrant states that sought to violate them. He sought to add teeth to ensure that those rights considered the "inborn rights" of citizens from the Declaration of Independence onwards would not only be enshrined within the Constitution's spirit, but also brought within its practical, federally enforceable power.(76) These "inborn rights" transcended simple equality within states and flowed across state borders throughout the United States.

Other strong proponents of the Clause shared this basic conception of the substantive protections the Clause would secure, even if they did not necessarily share Bingham's "singular opinion" that the Constitution already bound states to honor those protections.(77) To proponents addressing the Clause's merits, it would estop states' deprivations of rights that went against the existing spirit, if not the precise letter of the Constitution.(78) Echoing Bingham, they also maintained that the Clause would add teeth to the abstract principles that had underscored the Constitution; they differed from Bingham primarily in their belief that the Clause would do so by making such principles newly binding upon the states.(79) They, too, looked to Justice Washington's language in Corfield as exemplifying and sanctioning a theory(80) according to which citizens of any state, by virtue of federal citizenship alone, were entitled to fundamental rights so self-evident that they were "more tedious than difficult to enumerate."(81) And they drew upon the abstract promises of the Declaration of Independence as a central thrust and justification for the Clause and for the Amendment.(82) This natural rights theory would be transformed from a tacit understanding to an abiding constitutional principle following the Clause's passage.

Senator Jacob M. Howard, who served as the Senate's temporary co-chair of the joint committee and who, along with Bingham, drafted Section 1's text, put forward this conception in his opening remarks to the Senate.(83) While Howard termed it "`a curious question'" to ask "`what are the privileges and immunities of citizens,'" and surmised that the question would provoke "`a somewhat barren discussion,'" he was nonetheless "certain the clause was inserted in the Constitution [Article IV, Section 2] for some good purpose."(84) And although Howard was "`not aware that the Supreme Court ha[d] ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied [sic],'"(85) he pointed to Justice Washington's passage in Corfield, discussing fundamental principles and the rights associated therewith as "`some intimation of what probably will be the opinion of the judiciary'" in construing the Clause.(86)

He went on to say:

   To these privileges and immunities, whatever they may be--for they are not
   and cannot be fully defined in their entire extent and precise nature--to
   these should be added the personal rights guarantied [sic] and secured by
   the first eight amendments of the Constitution; such as the freedom of
   speech and of the press; the right of the people peaceably to assemble and
   petition the Government for a redress of grievances, a night appertaining
   to each and all the people; [etc.]....

      ... The great object of the first section of this amendment is,
   therefore, to restrain the power of the States and compel them at all times
   to respect these great fundamental guarantees.(87)

      This excerpt from Howard's speech offers the strongest evidence that the
   Clause was intended to incorporate the entire Bill of Rights and make it
   binding upon the states.

Whether or not that evidence wins the day(88) is unimportant for present purposes, especially given selective incorporation's progression towards all-but-complete incorporation.(89) What is important is that Howard's speech sustains the larger and more continuous sentiment that the Privileges or Immunities Clause safeguards substantive rights that, while left unenumerated, are nonetheless agreed on as fundamental and binding upon state and federal governments alike. Howard's speech confirms that the Clause was "constitutional shorthand"(90) used to codify basic rights that would extend throughout the nation and be absolutely guaranteed to all citizens, wherever they might reside. For Howard as for Bingham, those incontrovertible and inviolable rights included some of those enumerated in the Bill of Rights yet also included others that could not "`be fully defined in their entire extent and precise nature.'"(91)

To the framers, then, the lessons taught by the Civil War did not recommend constitutional clarification but simply constitutional enforcement. Proponents did not stop to address problems of conflicting interpretations but rather only those of blatant transgressions.(92) By this tautological approach, it was accepted and understood that certain privileges or immunities must always attach to citizenship and that the constitutional defect in need of repair was lack of federal power to enjoin their violation. With that as their mission, the framers presumed a consensus according to which the substantive rights they sought to secure were inevitably manifest to all. The Clause simply removed all risk of doubt and offered a staunch defense against the states' willful noncompliance.

C. Opponents' Perspectives: Drawing Meaning from Dissent Against the Clause

Opponents who vehemently resisted the Fourteenth Amendment of course strongly doubted the supposedly manifest nature of the fundamental rights the Clause contemplated. To be sure, these opponents generally resented the Amendment as a whole in that it transferred authority from the states to the federal government and recast the constitutional balance. Yet some, including Representative Andrew Rogers, who served on the joint committee, made pointed attacks against the Clause. Rogers decried the Amendment as "`prevent[ing] any State from refusing to allow anything to anybody embraced under this term of privileges and immunities'" such that "`the result will be a contest between the powers of Federal Government and the powers of the States. It will result in a revolution worse than that through which we have just passed.'"(93) Representative Aaron Harding condemned the Amendment as a massive transfer of power from the states to the federal government such that Congress would "`virtually hold all power of legislation over your own citizens'" and a general authority over civil rights vis-a-vis the states.(94)

These opponents obviously would not accept the assumption of many framers that the rights asserted as fundamental were beyond controversy. Instead, several opponents dreaded the Privileges or Immunities Clause not so much for forcing states to recognize existing substantive rights, but for asserting the existence of certain rights that were left unenumerated and for entrusting the federal government as arbiter of what those rights were.(95)

These concerns no doubt were hyperbolized for the sake of dramatic effect and can be discounted somewhat. They should not, however, be entirely dismissed. For the opponents of the Fourteenth Amendment clearly attached import to the Clause. They, like Bingham, Howard, and other proponents of the Clause, had particular reason to probe its language and contemplate its meaning. And they, too, shared a conception whereby certain substantive rights the Clause had yet to enumerate would be absolutely protected against interference by states.

D. A History of Evasion: Frustration of Efforts to Attach a Precise Contemporaneous Meaning to the Clause

Even with the framers' general conception of the Clause perfectly clear, tracing their exact substantive design for it proves largely illusory. Senator Timothy O. Howe's defense of the Clause indulged in rhetoric typical of that which so frustrates efforts to ascertain the precise meaning the framers attached to the Clause:

   "Does any one on this floor desire to reserve to any State the right to
   abridge the privileges or immunities of citizens? ... Do you find in any of
   these communities seeking to participate in the legislation of the United
   States an appetite so diseased as seeks to abridge these privileges and
   these immunities, which seeks to deny to all classes of its citizens the
   protection of equal laws?"(96)

To cloak abstract language with righteous tautology in this fashion was to obviate real debate over specifics.(97) This lack of meaningful debate was described by one commentator as follows:

      To [the framers'] way of thinking, the Fourteenth Amendment was
   declaratory of what always had been the "true" meaning of the
   Constitution, declaratory of the view that slavery and race discrimination
   had no place in the Constitution and were outlawed by it.

   Confusion this was, confusion of the "is" and the "ought." Men were left
   without adequate points of reference; they did not agree about what their
   old Constitution meant because they never squarely faced the problem of who
   decided what it meant. Naturally they failed to agree and to talk
   meaningfully about what their amendments meant or did.(98)

Thus, Senator John B. Henderson, after declaring that the definition of citizenship added to Section 1 left the present understanding undisturbed, found it "`a loss of time to discuss the remaining provisions of the section, for they merely secure the rights that attach to citizenship in all free Governments.'"(99) When Senator Hendricks put to himself the question of what exactly the privileges and immunities of citizenship are, he could only answer: "`It is a little difficult to say, and I have not heard any Senator accurately define [them].'"(100) Senator Reverdy Johnson, who actually served on the joint committee responsible for drafting the Clause, tellingly complained just before Senate approval of the Amendment that, while he approved of Section 1 on the whole, he found the Privileges or Immunities Clause "`quite objectionable ... because [he did] not understand what will be the effect of [it].'"(101)

What meaning can be gleaned from the seminal speeches (such as Bingham's and Howard's) that reflect the Clause's framing, was sparsely captured by contemporaneous media publications. The Boston Daily Advertiser's report on Howard's speech managed to explain that the Clause would

   "secure to the citizens of all the States the privileges which are in their
   nature fundamental, and which belong of right to all persons in a free
   government. There was now no power in the Constitution to enforce its
   guarantees of those rights. They stood simply as declarations, and the
   States were not restricted from violating them, except by their own local
   constitutions and laws."(102)

As for the evidence surrounding individual states' ratification deliberations, that evidence is limited,(103) disparate, and largely equivocal.(104)

III. A MODERN ROLE FOR THE CLAUSE: OFFERING PRIVILEGES AND IMMUNITIES FULL CITIZENSHIP IN FOURTEENTH AMENDMENT JURISPRUDENCE

There is no adequate historical justification for construing the Privileges or Immunities Clause of the Fourteenth Amendment as vapid, meaningless surplusage.(105) Much as the framers and ratifiers of the Clause might not have conceived of it in the precise terms we might hope for, neither did they intend it as a constitutional hiccup of the same rights already secured elsewhere. Quite plainly, the framers of the Fourteenth Amendment failed to appreciate the massive development of equal protection and due process jurisprudence that would pour from each of those two succinct clauses and vastly transcend the immediate concerns of the day.(106) For similar reasons, the Clause could and should have developed alongside its companion clauses in Section 1. Yet Slaughter-House slew the Clause in its cradle and deprived it of its destiny.

Saenz now offers a ray of hope that this mistake of the past may be corrected and the text of the Fourteenth Amendment better construed.(107) The Clause, its history, and its meaning strongly deserve reconsideration, and I offer that here. The challenge is to be faithful, yet disciplined, in making sense of the Clause--to cope with its peculiarities without expunging it as deranged.(108) It is with this in mind that I offer my own exposition and formulation of the Clause, while answering some important objections along the way.

A. Locating the Clause Within the Fourteenth Amendment

I begin with the basic presumption that the framers and proponents of the Clause meant something by it. Admittedly, two candid members of Congress proclaimed their bewilderment at the Clause,(109) a sentiment no doubt shared by many others and for good reason. Yet Bingham and Howard, who together drafted Section 1 and were the Clause's central advocates, argued specifically on the Clause's behalf such that others must have recognized it as securing important substantive protections.(110) Moreover, the Clause was included in and ratified as part of the Fourteenth Amendment, in direct response to one of the most salient, divisive, and savage episodes in our country's history; and only after legislative debates and consideration in both houses of Congress, on the floors and in committees, and in the states that ratified it. To read the Clause as merely redundant seems a last resort in any principled constitutional analysis.

With this in mind, I think there is only one sensible way to locate the Privileges or Immunities Clause within the overall scheme of Section 1 of the Fourteenth Amendment: The Clause confers upon all citizens of the United States a positive grant of substantive fights that no state may infringe; the Equal Protection Clause requires that the fights and legal protections any state confers be afforded to all without discrimination; and the Due Process Clause is limited to securing procedural protections for particular deprivations states may wish to effect. Where equal protection secures an equality of fights under the law within a particular state, privileges and immunities secure a minimum of fights across all states. Whatever problems this conception may pose (and I consider these problems less dire than those associated with our existing conception of substantive due process)(111) inhere in any interpretation of the Clause prepared to give meaning to the Fourteenth Amendment's new establishment of previleges and immunities that states may not deny.

It is wrong to conclude that the Clause only secures those fights of federal citizenship inherent in the Constitution's structure because that much already was established by Article IV, Section 2 and Crandall v. Nevada.(112) Similarly, it is wrong to conclude that the Clause requires only that states offer equal treatment to all resident citizens: Newly-arrived residents already are entitled to the same status as residents of longer tenure under the aegis of Article IV, Section 2,(113) and equal protection separately prohibits discriminatory classifications against residents and nonresidents, citizens and noncitizens alike. Moreover, "[t]he right to equal protection, we're told again and again in the Reconstruction debates, is itself a privilege or immunity of citizenship."(114) Once we accept that equal protection constitutes a new and independent source of substantive protections, it follows a fortiori that privileges and immunities, a broader principle, which in the framers' abstract conception embraced equal protection, is a distinct source of substantive protections.

B. Formulating the Meaning of Privileges or Immunities

1. Reducing the ethereal to corporeal form.

By comparison, the problem of arriving at an exact formulation of the phrase privileges and immunities is most ticklish--indeed, it is something with which the framers straggled mightily. I think that those such as Bingham and Howard meant, in their abstraction, to enshrine the Declaration of Independence's promise of "Life, Liberty and the pursuit of Happiness"(115) as part of the Constitution. They certainly believed in the notion that certain fundamental rights attached to citizenship, that these rights need not be enumerated to be recognized, and, while these rights had always existed, they should never again be violated. For this, Bingham and Howard drew heavily from Justice Washington's articulation of "fundamental principles" in his Corfield opinion; depending upon their understanding of Barron, they understood the Clause as either making these rights newly binding upon the states or newly enforceable against them.

In any case, I think that the Clause's framers had largely the same intuitive conception of constitutional protections that many laypersons have today--if asked what basic protections exist under the Bill of Rights, a layperson might quote the Declaration of Independence. In the same way, the framers of the Clause always assumed that certain rights existed under the Constitution, rights that the southern states had failed to honor in violation of the spirit, if not the letter, of the Constitution. This was, at least, the assumption on which the framers operated, however idealized and revisionist it may seem. The object of the Clause was to empower the federal government to prevent violations of these rights, through such measures as the Civil Rights Bill, then and in the future. Without more, however, such a bare conception leaves us awash in the vagaries of natural law, first principles, and the unrestrained "predilections"(116) of those who would divine them.

I think we can go further and do better than that, and still be faithful to what the framers intended. But first there is an obvious question to confront. By now it has become clear that the Clause secures certain unenumerated, fundamental rights under the Constitution, and our jurisprudence has already reached that terminus via a different route. One might, should, and invariably does ask: Historical quibbles and academic excursions aside, what difference does it make whether the Fourteenth Amendment's protection of substantive rights occurs under the rubric of the Privileges or Immunities Clause and "fundamental rights," or that of (substantive) due process and rights "implicit in the concept of ordered liberty"?(117) Both approaches seem to bring us to the same place, and we're already there, so why bother backtracking?(118)

I have two distinct but related answers to that crucial question. First, there is a value in intellectual honesty that is not to be gainsaid. This value is particularly high when it comes to judicial decisionmaking, where intellectual honesty is the central source of accountability and respect for our system of law. If complaints about Slaughter-House have become so frequent as to be droll,(119) that should not obscure the crucial fact that the Court stared at a constitutional clause and steadfastly refused to acknowledge it--only later to carve out an oblique channel into a conveniently adjacent clause of the same amendment, into which it poured, without textual basis, protections similar to those destined for the other. That distortion, if not outright corruption, of interpretation and adjudication continues to bother me and presumably others as well.

Second, the law we know as sabstantive due process may chart a better course once it finds an authentic constitutional anchor. Its current moorings seem, at best, entirely contrived. It is important to establish that the federal judiciary's protection of unenumerated but fundamental rights, which the states may not encroach on, finds textual support in a Clause creating that very mandate. But in better appreciating the circumstances and terms in which the Clause's mandate was cast, we may make the process of discerning substantive rights more disciplined and constrained than it otherwise is.

Thus, I continue along undaunted and now mm back to the relevant history to offer my most precise statement of the Clause's meaning. The framers understood the Clause as enshrining fundamental rights within the Constitution and empowering the federal government to protect those rights. They most precisely and forcefully articulated the relatively concrete principle of equal protection in much the same breath and in the same section of the Amendment; alongside that was placed the principle of due process, understood from prior constitutional use. No doubt, the framers conceived of the latter two clauses as fundamental rights, illustrative of the privileges or immunities they meant to secure.(120) Yet both due process and equal protection were so thoroughly controverted in the southern states that they needed to be stated, and stated convincingly for them to have the requisite force. This offers the pivotal point of comparison for understanding the Clause's meaning and place within the Fourteenth Amendment: If the privileges [and] immunities of citizenship were those rights hitherto taken for granted as part of a collective constitutional understanding throughout the United States (but simply left unenforceable against the states), then the rights of all persons to due process and equal protection were ones that could not be taken for granted in the same sense.

This approach admittedly clashes with the framers' stated position that they believed equal protection and due process were rights to which all persons were irrefutably and universally entitled under the Constitution--rights included under their conception of privileges and immunities and therefore easily left unstated.(121) But here lofty theory and rhetoric met practical reality. Where privileges or immunities were subject to serious dispute, they did not stand on their own strength and instead required a separate and express provision.

The irony is clear and important: The rights secured under the Privileges or Immunities Clause of the Fourteenth Amendment were those whose existence and protection against state violation was so obvious that their violation would likely be seen as anathema. The crucial leap made by the Clause was to take those rights already tacitly understood to exist under the Constitution and make them binding and enforceable against the states. After the Clause's passage, those rights tacitly established throughout the United States, and also understood as "fundamental," were protected against state violation. Constitutional prohibitions against slavery and discrimination against African Americans were not well understood or accepted and therefore demanded separate treatment.

Against this backdrop, the Privileges or Immunities Clause is best understood as codifying the contemporary conception of rights attaching to U.S. citizenship, thus offering constitutional protections to estop state violations of such rights and preventing the occasional rogue state from backsliding at their expense. The only rights the Clause secures are those accepted by clear consensus as "fundamental" throughout the country;(122) rights subject to substantial division among the states, no matter how "fundamental" many might consider them, require a more express mandate. The most obvious implication of this is that the process, already established under due process,(123) of selectively incorporating the Bill of Rights to make it binding upon the states is properly grounded in the Clause.(124)

One might object that this conception is so limiting as to effectively render the Privileges or Immunities Clause meaningless. I disagree and my later test cases should demonstrate why.(125) The framers' approach codifies only those substantive rights that border on the tautological--fundamental rights so obvious and well accepted in the United States that they are essentially beyond dispute. That approach undoubtedly offered a powerful impetus for overcoming Barron and taking rights well cherished under the constitutional structure and making them binding upon the states. But it also offers a constitutional charter for estopping individual states from violating other fundamental rights once they achieve recognition throughout the country. It is an important constitutional device for preventing backsliding, whereby the fundamental rights understood to exist throughout the United States might otherwise succumb to the deviations of one or two rogue states. Such instances would be exceptional but hardly inconceivable. The important point is that certain privileges and immunities are indeed transcendent throughout the country, a part of the Constitution that no government is free to violate.(126)

To those (including Justice Thomas) suspicious of substantive due process and its invitation to the "predilections of those who happen at the time to be Members of th[e] Court"(127) to run amuck, this interpretation of the Clause can hardly be welcome. I do think the history of the Clause argues for further constraints beyond those currently in place for substantive due process. The Privileges or Immunities Clause is not properly understood as a constitutional charter under which courts may divine federal rights; it is a charter from which courts may prevent individual states from deviating from rights that are (1) "fundamental" and (2) established by consensus throughout the several states.

Still, that is unlikely to appease those most alarmed by possible judicial excesses. To them, I will simply say that judicial restraint is hardly achieved by reading important language out of the Constitution as the Court did in Slaughter-House.(128) Faithfulness to the Constitution's actual text is of the utmost importance, and the development of substantive rights under the Privileges or Immunities Clause should offer a more responsible and ultimately more restrained course than doing so under the Due Process Clause.

2. Avoiding Lochner.

One more important objection must be addressed before offering a precise and complete formulation of the Privileges or Immunities Clause, for it will greatly aid and inform that formulation. Jeffrey Rosen, in a thoughtful and instructive article written prior to Saenz, seeks finally to quell further rumblings about reviving the Privileges or Immunities Clause.(129) He undertakes a thought experiment in which we devotedly construe the Privileges or Immunities Clause in the fashion intended by its framers, and he concludes that we inevitably find ourselves led "into the bogs of Lochner,"(130) from which we cannot faithfully retreat.(131) Very simply, the framers considered certain economic rights such as the right to work and to enjoy the benefits of that work as fundamental rights--the same fundamental rights encompassed in Justice Washington's Corfield opinion, the Declaration of Independence, and the constitutional spirit as the framers construed it. I think this is undoubtedly correct.(132) It employs essentially the same reasoning that animated Lochner itself.(133) If the Privileges or Immunities Clause seems to lead us headlong into revisiting the same pitfalls, it is because it has been left in a state of suspended animation for over a century, deprived of historical nurturing, and the evolving sensibilities of modern times and modern courts. When it emerges from its time capsule, it comes with all of its historical anachronisms intact.

But any reasonable recasting of the Privileges or Immunities Clause would need to heed the lessons of history, lessons never factored into its jurisprudence simply because that jurisprudence was left ignored and untouched. The harsh lessons that Lochner and its progeny taught us in the area of substantive due process must be, and naturally would be, factored into any modern rendering of the Privileges or Immunities Clause.(134) Lochner triggered what was, after all, a stark and undoubtedly necessary deviation in our constitutional law; for our modern conception of the Clause to be informed by Lochner is no more incongruous and no less sensible than it is when it comes to our conception of the Constitution as a whole.

It is essential that we heed Lochner here, because its specter may loom particularly large under the Privileges or Immunities Clause absent judicial caution. The Clause speaks of not only passive "immunities," but also of active "privileges." This readily calls to mind the largely illusory but often helpful distinction between negative rights, freedoms from something, and positive rights, entitlements to something.(135) Most constitutional rights are classically cast as negative rights, those that stand inviolate in the sense that government cannot actively encroach upon them. Thus, the government may not shut down the media's presses, confiscate one's house without due process and just compensation, or force one to testify against one's self in a criminal proceeding, but it need not furnish the media's presses in the name of the First Amendment,(136) provide public housing in the name of Due Process and the Takings Clause, or advise one not to testify in respecting the Fifth Amendment.

Courts are particularly wary of obligating governments to guarantee positive entitlements simply because that can so profoundly impact the sensitive policy decisions best entrusted to the legislative and executive branches. In some instances, courts have done so in order to secure fundamental rights of paramount importance. Examples include hints of a governmental duty to protect lawful speakers against hostile audiences,(137) the obligation to subsidize prisoners' right to appeal,(138) and the duty to provide counsel to the indigent criminally accused.(139) Yet courts necessarily tread lightly in the area of positive rights because of the obvious dangers posed to legislative prerogatives and governmental flexibility.

The fact that the Privileges or Immunities Clause speaks in terms of "privileges" and not just "immunities" poses new temptations to repeat the mistakes made in Lochner, but on the other side of the coin.(140) That is, courts could be tempted to interfere with government's economic policy and allocations by safeguarding, not the negative rights of property owners, but rather the positive rights of prospective beneficiaries.(141) The latter course is no more correct or prudent than the former. It proclaims certain "privileges" as fundamental rights and elevates them to constitutional protection notwithstanding the fact that they remain sharply controverted, they are not uniformly afforded throughout the United States, and their judicial protection requires undue intrusion into what are classically legislative prerogatives.

3. An exact formulation of privileges and immunities: those rights that are (1) fundamental, (2) established by clear consensus among states, and (3) outside the "bogs of Lochner."

With this in mind, it is possible to offer a sound formulation of the Privileges or Immunities Clause of the Fourteenth Amendment while still being true to the intent of its flamers. The Clause protects against encroachment by individual states those substantive rights that are (a) fundamental or "implicit in the concept of ordered liberty"(142) (in the words of Justice Cardozo and as subsequently construed by the Court); (b) well recognized and established by consensus throughout the several states; and (c) not predominantly economic rights disputed by adherents to different economic theories, or rights which would unduly limit legislative allocation and public policy decisions if guaranteed.

As for the first requirement, that the rights be fundamental, it seems beyond dispute that the Clause's framers were concerned exclusively with fundamental rights--those that are inherent in U.S. citizenship and that are too obvious to require enumeration. The framers did not mean to enact all rights then afforded by the federal government and the body of states, and thereafter make them binding upon all states. Instead, the framers could only justify a federal guarantee of rights at the expense of state prerogatives because of the import and basic necessity of the fundamental rights the Clause meant to secure. Justice Washington, the Declaration of Independence, and the framers of the Clause all spoke in terms of fundamental principles, and these are all that the Clause can fairly be said to contemplate.

The Court has since captured the essence of this notion of fundamental rights, most notably in proceeding with selective incorporation of the Bill of Rights into the Fourteenth Amendment; such rights are understood as those "implicit in the concept of ordered liberty."(143) And just as this has been the guiding spirit of substantive due process, it properly serves as a defining characteristic of privileges and immunities.(144)

It also seems clear that ascertaining the existence of privileges and immunities whose existence is all but tautologically accepted throughout the United States requires extensive reference to actual practices throughout the several states. But because the thrust of the Amendment and the Clause was to create constitutional principles of lasting vitality rather than to freeze status quo rights into a static set,(145) the practices among states in 1866 and 1867 should not define the entire body of privileges and immunities. The framers chose language broad enough to generate an evolving principle and not a rigid prescription. Just as our understanding of equal protection has evolved to embrace protections for groups (such as women and immigrants) hardly contemplated by the framers, so, too, can our conception of privileges and immunities expand. That expansion, however, should not be driven by the flat of judicial pens. It can only come from the emergence of consensus among the several states such that certain rights are taken for granted under our constitutional framework and recognized as attaching to U.S. citizenship.

Once consensus emerges, and certain rights are understood as protected throughout the several states (and further qualify as fundamental or "implicit in the concept of ordered liberty"), they are ripe for protection as privileges or immunities of U.S. citizenship.(146) They then may become accepted as part of our constitutional framework such that no state may dip below them. Until such a consensus emerges, however, nothing short of an express constitutional mandate along the lines of equal protection can justify enshrining a particular substantive right as one the Constitution protects against state encroachment, no matter how appealing or fundamental that right might appear to any right-minded thinker.(147)

I do not presume in this Note to enumerate the exact indicia by which state practice is to be determined. That is an art part and parcel of the judicial inquiry and constitutional analysis. At a basic level, however, I believe judicial inquiry into whether a consensus exists among states should demand proof "beyond a reasonable doubt" as opposed to "by a preponderance of the evidence" or even by "clear and convincing evidence." Neither do I presume to prescribe the exact number of states that must conform to a particular practice before demonstrating a clear consensus. I doubt, however, that more than two or three can persist in dissent without disproving the existence of any such consensus. Beyond that point, a particular right can hardly be deemed taken for granted and so patently obvious throughout the United States that it does not require exact expression in the Constitution to find protection. Finally, the question of how long a practice must be sustained among the several states before gaining entry into the set of constitutionally protected rights is a relatively difficult one that leaves substantial room for judicial discretion and interpretation. Or at least it does on the margins--it seems one week should never suffice while fifty years would generally be ample. In any case, that problem is hardly insuperable.

In essence, a body of fundamental rights can gradually accumulate, thereby raising the constitutional bar and prohibiting individual states from sliding beneath it, but only to the extent those rights are accepted by consensus among the several states and thereby enshrined in the constitutional corpus.

The third criterion, that a fundamental right should not be predominantly an economic one, one reflecting adherence to a particular economic theory disputed by partisans or unduly invasive within legislative and policymaking functions involving economic affairs, reflects an abiding concern with avoiding Lochner's pitfalls. In one sense, this is a purely prudential concern, but in another sense it simply heeds a marked shift in our modern understanding of the Constitution as a whole. As I mentioned earlier, I think the promise of certain privileges threatens the flip side of the Lochner coin, stifling vital legislative discretion as to allocations and methodology in the name of the fundamental rights of prospective beneficiaries rather than contributors.(148) This ingredient of my formulation offers a necessary crash course in Lochner and the lessons of the past hundred years for a Clause that has lain dormant throughout.

This formulation presents one final problem which must be confronted before moving on to some concrete test cases. The Privileges or Immunities Clause, following the definition of citizenship contained in Section 1 of the Fourteenth Amendment, by its terms applies only to U.S. citizens. To the extent we render content to the Clause such that it protects substantive rights, greater discrepancies may arise between the rights to which citizens, as opposed to noncitizens, are entitled at the risk of the latter suffering deprivations. The general solution to this is the Equal Protection Clause, which secures equal treatment under the law for all persons.

This, in turn, creates a predicament where the privileges and immunities that are adjudged to attach to citizens may generally attach to noncitizens absent sufficient rational justification for distinguishing between the two groups. But for the substantive rights where this prospect is most troubling--particularly the right to vote(149)--ample constitutional justification should exist for distinguishing between the two.(150)

IV. PRACTICAL IMPLICATIONS: EXPLORING FIVE TEST CASES

I have accepted Justice Thomas's invitation in full, offering an account of the Clause's history, its framers' conception of it, and its meaning and role in the context of our Fourteenth Amendment jurisprudence. Now I venture a few steps beyond, applying my formulation of the Clause to a few test cases. My hope is that doing so will help clarify and explain the implications of my approach.

A. The Right to Vote in State Elections

Test Case One. It seems best to pick an easy starting point. Let's assume for a moment that a state decides it will do away with its gubernatorial elections and instead have its present governor appoint a successor; it simply does away with any relevant provisions on the subject found in the state constitution. A plaintiff then challenges the practice under the Privileges or Immunities Clause of the Fourteenth Amendment, claiming that the Clause protects the right of a resident (who is also a U.S. citizen) to vote in a state gubernatorial election.

I think the challenge should succeed and the state's practice be held unconstitutional. U.S. citizens should undoubtedly have the right to vote in their state elections. Nowhere is this right expressly announced in the Constitution, except to the extent states' laws provide for democratic elections, in which ease a state law promising the right to vote to some must not violate equal protection.(151) Yet it should hardly be constitutional for any state to choose to do away with its electoral processes entirely and deprive all its citizens of the right to vote. It seems all citizens of the United States have justifiably come to expect they will be able to vote in the elections of any state in which they happen to reside.

That right is clearly fundamental and "implicit in the concept of ordered liberty" as we conceive of it in this country.(152) The vote is the quintessential means by which citizens obtain a stake, exercise control over, and offer input into their state government, which is constitutionally charged with controlling functions vitally important to its citizens. State citizens' ability to vote is at the foundation of the democratic charter and is, in a real sense, the wellspring of all other rights.(153)

Moreover, a right to vote in gubernatorial elections is, at present, uniformly recognized and secured as a practical matter throughout every state.(154) That one state has, according to my test case, suddenly decided to deviate does not refute the existence of a strong consensus throughout the several states. And the government resources needed to conduct elections hardly pose a problem of Lochner-like proportions. The requisite allocations are relatively discrete and have always been accepted as part of the states' long-standing electoral practices. The right to vote in state elections thus seems beyond dispute and might, if need arose, be opportunely announced under the auspices of the Privileges or Immunities Clause. If ever it is violated, strict scrutiny would be applied and only in the rarest of circumstances would the state's actions pass constitutional muster.

B. Rights to Privacy

The notion that a general right to privacy is contained within our Constitution has received attention ever since Brandeis and Warren published, a decade before the turn of the century, their influential article arguing in favor of such a notion.(155) And it is easy enough to accept in the abstract that some level of individual autonomy and privacy, free from government encroachment is indeed a fundamental right. This much is currently well accepted by the Court.(156) But conceiving of a right to privacy in the abstract is hardly satisfactory when it comes to actual constitutional adjudication. Any examination of the right to privacy must be precise and focus on concrete cases, with specific rights at stake and specific practices among the several states brought into relief. As such, I explore specific aspects of the right to privacy.

Test Case Two. The first right-to-privacy scenario is the classic Griswold(157) one in which a state bans the sale of contraceptives to adults. Again, a plaintiff brings suit claiming that the practice is unconstitutional under the Clause. Here, I think the special status of contraceptive practices in the private bedroom has, particularly since Griswold, secured recognition under the Clause such that it should be immune from state interference. For the same reasons articulated in Griswold,(158) this specific aspect of the right to privacy is one that is fundamental and in keeping with my formulation. The clear consensus evinced by state practice is to avoid regulation of the use of contraceptives in one's private relations and the sale of contraceptives to adults.(159) This right of adults to use contraceptives is a classic negative right, the protection of which requires no state resources but simply forbids the use of state resources to infringe on that right. Any encroachments on it should therefore be subject to strict scrutiny in keeping with the Court's current approach to safeguarding fundamental rights. Under my conception of the Clause, the challenge would almost invariably succeed, just as it does under modern substantive due process jurisprudence.

Test Case Three. Now let's suppose a state outlaws the possession of obscene materials by private citizens in their own homes. Child pornography presents a particularly troublesome case,(160) so let's assume the materials subject to the ban extend into hardcore pornography depicting adults undertaking legal, but nonetheless obscene acts. The plaintiff was reading such materials in her own home and was caught doing so while police were investigating a neighborhood burglary. She cites the Clause in her defense, alleging that it safeguards her right to possess and read whatever materials she pleases in her own home, so long as doing so doesn't pose a direct harm or threat of harm to others.

This is the most difficult case encountered yet, but I think the challenger has a strong chance of succeeding under my formulation of the Clause. There is a strong argument to be made that citizens possess a right to enjoy the privacy of their own homes(161) so long as they do not pose a direct harm or threat of harm to others. The sanctity of one's home, and one's right to privacy inside it, find specific protections in the Bill of Rights.(162) Our society places a premium on private property rights, with ownership of one's residence foremost among them and subject to special, almost sacred, status. The right to privacy in the home is further heightened here because a citizen's right to her own thoughts and beliefs, and to peruse different materials and ideas as she sees fit, is also at stake.(163) I think the merger of these two rights into the right to pursue ideas and possess the materials one pleases within the sanctity and privacy of one's home, so long as doing so does not pose a direct harm or threat of harm to others, is properly considered a fundamental right.

Again, the right to be secured is a negative right that neither requires expenditure of state resources nor unduly cramps government operations within the economic sphere; no Lochner-like concerns are present. The sole remaining question is whether a clear consensus exists among the states in favor of respecting these rights. My strong intuition is that there is such a consensus. But that would need to be borne out through litigation and searching examination of the practices current among states at the greatest level of specificity possible. This would entail determining not only the laws available to states to regulate obscene materials, and whether the laws ban possession of such materials in the home, but also the means of enforcement states permit and whether the means go so far as to permit intrusion into private homes under these circumstances. As I see it, this question of state consensus would be at the crux of such a challenge brought under the Clause.

Test Case Four. Two consenting adults of the same gender are observed engaging in homosexual sex inside a parked car at a secluded location. This activity is in clear violation of a state's existing antisodomy law and the State decides to prosecute the individuals involved. They, in turn, challenge the law as violating the Clause.

This is a scenario resembling Bowers v. Hardwick,(164) and it directly implicates the controversial question of whether adults enjoy a fundamental right to privacy and control over their own intimate relationships such that antisodomy laws are invalid under the Clause.(165) This issue is a delicate one and not one I can adequately address here. I will simply say that sufficient division is present among the states, several of which have a history of antisodomy laws and still retain those laws today,(166) that such laws are not properly invalidated under the Clause.(167)

The challenger's best hope would be to argue that while the existence of an antisodomy law by itself does not violate the Clause, the decision to actually prosecute under it does for, while several states retain antisodomy laws, it is all but unheard of for them to prosecute under them.(168) That argument almost undoubtedly fails. Where a state retains a law against a particular activity along with authorizing legislation providing for enforcement, it is virtually impossible to conclude that the state has assented to a consensus recognizing that activity as protected.

So long as a critical mass of states retains such laws on the books prohibiting homosexual sex, this purported constitutional right cannot find protection under the Clause. The right to privacy in the home,(169) however, combined with clear indication of a consensus that states will not encroach upon it in this context, may warrant protection under the Clause that limits, as a practical matter, the enforcement of antisodomy laws.

C. The Right to Public Education

While the specific rights to privacy discussed above are best considered potential "immunities," it is also useful to test what might be an established "privilege."(170) It is very likely that the right to public education qualifies as such.

Test Case Five. This test case is a simple one. A state decides to abolish public schools in their entirety and leave families to fend for themselves in securing schooling for their children from grades K through twelve. Plaintiffs are parents from around the state who bring suit claiming their "privileges" as U.S. citizens are being violated.

This implicates a right to public education that was totally foreign to the framers of the Clause. Yet it is one that has become embedded in our nation's fabric in the hundred years since and is today effectively taken for granted. As such, I think the right to public education, at its most basic level, is probably properly secured under the Clause.(171) While public education is classically a state prerogative and should remain that, the time has come when the provision of public education itself is something to which all citizens of the United States likely are constitutionally entitled.

Given the circumstances of our present age, one's active participation in a democratic society and one's credible pursuit of liberty and success in substance require a public education.(172) The demands of the technological age and various professions have increased so vastly that the implicit guarantees of our Constitution and national charter are entirely illusory without some form of basic education. The argument that a basic education is a fundamental right is one that many,(173) including myself, are prepared to accept.

Moreover, public education from grades K through 12 is uniformly provided and, to a large extent, mandated throughout the several states. No state to date has broken that consensus and rejected that responsibility.(174) Unfortunately, any determination in favor of a right to public education flirts with Lochner. Decisions about providing education implicate important economic, allocative, and policy concerns that properly are left to state and legislative judgment.

The determination that some form of public education is so vital and fundamental that it is a "privilege" of U.S. citizenship thus should go no further than that. It does not support the sort of "privilege" requested and rejected in San Antonio Independent School District v. Rodriguez,(175) in which differences in a state's allocations for public schools between different communities (which varied in relative wealth and revenue from property taxes) were challenged as constitutionally suspect.(176) What it does mean is that no state could, for any reason, suddenly decide to renounce its obligation to provide public education without supplying a comparable substitute that leaves intact the same underlying substantive rights.(177) To set that as a minimum requirement, without specifying a standard of public education that each state must provide or how each state must divide the resources it expends towards that end,(178) strikes me as a perfectly principled use of the Privileges or Immunities Clause. But to do anything more, at present, would be unwarranted under the Clause and ill advised.

CONCLUSION

Some might consider these test cases, particularly Test Cases One and Five,(179) too farfetched to ever arise.(180) If that is true, so be it. The framers sought to secure under the Clause only those rights that are so fundamental that they are taken for granted as part of our constitutional precepts, rights so manifest throughout the United States that they do not require enumeration. It is only natural that such rights will remain intact and respected by the several states as part of their customary practice. Deviations will very seldom arise. But should they occur, and imperil what have become well-accepted privileges and immunities of United States citizens,(181) those deviations are unconstitutional under the Fourteenth Amendment.

This is the best understanding I can glean from the framers, and one that I think would considerably improve our modern Fourteenth Amendment jurisprudence. It should come as some comfort that our Constitution recognizes and protects substantive rights that have evolved throughout the nation over time--rights such as the right to vote in a state election that we all but tautologically accept under our modern constitutional conception. If ever a state should backslide from any rights among that core and rather limited set, the Clause offers the citizens of that state a federal constitutional mantle under which they can find shelter. This is the Clause's constitutional mission from which it was diverted in 1872.

The Clause does not, however, offer a justification for enshrining any substantive rights other than those clearly and undisputedly emblazoned on the United States' collective constitutional psyche. Even the most persuasive reasoning supporting a right's status as fundamental, without support from a consensus among the states, is nothing more than an argument (perhaps even a good one) for a new modification of the Constitution. Where such modification was sought and imposed, the framers of the Fourteenth Amendment could leave nothing to chance; they did so via the express mandates of the Due Process and Equal Protection Clauses. This offers a lasting model for us to heed. The Privileges or Immunities Clause does not offer a mandate or a justification for divining new substantive rights. It cannot be used to make impositions, similar to those of Section 1's latter two clauses, against a dissenting body of states based on judicial reasoning standing alone.

If, after Saenz, the Clause is finally due for a resurgence, and I very much hope that it is, this is the understanding that should attach to it. The framers were concerned with potential tears that rogue states might create in our ornate and ever-evolving, if loosely woven, constitutional tapestry. Where such tears appear, and they are obvious, the Clause offers the patchwork for repairing them. But it is not a device for weaving new patterns into the text of our Constitution.

(1.) Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting) (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).

(2.) Id. at 1518.

(3.) "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." U.S. CONST. amend. XIV, [sections] 1.

(4.) Saenz, 119 S. Ct. at 1526.

(5.) See Colgate v. Harvey, 296 U.S. 404, 426-28 (1935) (relying on the Clause to invalidate state tax targeting out-of-state income while exempting in-state income), overruled by Madden v. Kentucky, 309 U.S. 83, 93 (1940) (finding Colgate "repugnant to the line of reasoning adopted here").

(6.) 83 U.S. (16 Wall.) 36 (1872). According to this conception, the Clause is utterly redundant with the protections independently secured under Article IV, Section 2. See notes 9-27 infra and accompanying text (describing Slaughter-House decision); notes 105-114 infra and accompanying text (arguing why Slaughter-House interpretation should be replaced with one that renders meaning to the Clause).

(7.) For some representative examples, see Slaughter-House, 83 U.S. (16 Wall.) at 96 (Field, J., dissenting) (If the Clause "only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage."); JOHN HART ELY, DEMOCRACY AND DISTRUST 22 (1980) ("Needless to say, there is not a bit of legislative history that supports the view that the [Clause] was intended to be meaningless. Yet the Slaughter-House interpretation persists to the present day."); Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 CHI.-KENT L. REV. 627, 627 & n.4, 628 (1994) (claiming Slaughter-House incorrectly "`scratched [the Clause] from the constitution'") (quoting Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892, 30 B.U. L. REV. 49, 77 (1950)); Howard Jay Graham, Our "Declaratory" Fourteenth Amendment, 7 STAN L. REV. 3, 38 (1954) ("Justice Miller's Slaughter-House opinion presently made [iq as if the Constitution had never been amended.... All things considered, this is one of the strangest, most baffling self-deceptions in history."); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1387 (1992) (arguing that the Clause was "virtually read out" of the Constitution in SlaughterHouse and making "one more attempt to end this embarrassment" by arguing for an equality-based reading of it); see also Walter Dellinger, Remarks on Jeffrey Rosen's Paper, 66 GEO. WASH. L. REV. 1293, 1294 (1998) ("The more fundamental error of Slaughter-House was its failure fully to recognize that the nation fought a great Civil War and in its aftermath changed the fundamental law of the republic. Slaughter-House erred by resurrecting antebellum presuppositions of state primacy and state autonomy that had been the justifications of the Confederacy. That mistake dwarfs ... any concern about which clause the Court got wrong.").

(8.) Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241, 1241 (1998) (arguing that principled interpretation of the Clause would revisit Lochner and that the Clause is better left ignored); see also Saenz, 119 S. Ct. at 1535 n. 1 (Thomas, J., dissenting) ("Legal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.").

(9.) See notes 7-8 supra.

(10.) See Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 STAIN. L. REV. 5, 81-82 (1949).

(11.) See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 43-44 (1872).

(12.) See id. at 51-55.

(13.) Id. at 76.

(14.) Id. at 67.

(15.) Id. at 71.

(16.) Id. at 72.

(17.) Id.

(18.) Id. at 74.

(19.) Id. at 75.

(20.) Id. at 77.

(21.) See id. at 83-111 (Field, J., dissenting).

(22.) "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. CONST. art. IV, [sections] 2.

(23.) Slaughter-House, 83 U.S. (16 Wall.) at 75. This patently and expressly robbed the Clause of any possible independent meaning.

(24.) See id. at 79.

(25.) These rights are described as those "which owe their existence to the Federal government, its National character, its Constitution, or its laws." Id.

(26.) Id. at 96 (Field, J., dissenting).

(27.) In fact, the Court in Slaughter-House relied entirely on Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867), a case previously decided under Article IV, Section 2, in expounding the rights of federal citizenship that the new Clause was designed to protect. See Slaughter-House, 83 U.S. (16 Wall.) at 79.

(28.) 296 U.S. 404 (1935), overruled by Madden v. Kentucky, 309 U.S. 83 (1940).

(29.) See id. at 426-28.

(30.) 309 U.S. 83, 93 (1940).

(31.) TANF benefits replaced Aid to Families with Dependent Children (AFDC) benefits in 1996. See Saenz v. Roe, 119 S. Ct. 1518, 1521 (1999).

(32.) Those immigrating to California from another country were subject to no such limitation. See id. at 1523.

(33.) See id. at 1521 n.1 (invalidating section 11450.03 of the California Welfare and Institutions Code).

(34.) As Justice Stevens stated in the majority opinion: "The word `travel' is not found in the text of the Constitution. Yet the `constitutional right to travel from one State to another' is firmly embedded in our jurisprudence." Id. at 1524 (quoting United States v. Guest, 383 U.S. 745, 757 (1966)); see also id. at 1530 (Rehnquist, C.J., dissenting) ("Much of the Court's opinion is unremarkable and sound. The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens.").

(35.) Guest, 383 U.S. at 759; see also Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (finding "no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision" and deciding the case under the Equal Protection Clause); Edwards v. California, 314 U.S. 160, 172-73 (1941) (invalidating state law, which restrained interstate travel, under the Commerce Clause).

(36.) See Saenz, 119 S. Ct. at 1526. The Court now feels

   [t]he "right to travel" discussed in [its] cases embraces at least three
   different components. It protects the right of a citizen of one State to
   enter and to leave another State, the right to be treated as a welcome
   visitor rather than an unfriendly alien when temporarily present in the
   second State, and, for those travelers who elect to become permanent
   residents, the right to be treated like other citizens of that State.

Id. at 1525. This third aspect of the right to travel is at stake in Saenz. See id. at 1526. In holding the law unconstitutional, the Court expressly relies upon the Clause, asserting that "it has always been common ground that this Clause protects the third component of the right to travel." Id.

(37.) Id. at 1530 (Rehnquist, C.J., dissenting).

(38.) Id.

(39.) Id. at 1538 (Thomas, J., dissenting).

(40.) Id. Admittedly, not in so many words, but close enough. See note 1 supra and accompanying text.

(41.) The relevant right announced in Slaughter-House was one whereby "a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bond fide residence therein, with the same rights as other citizens of that State." Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80 (1872). The critical inquiry is thus whether the California law's distinction between newly-arrived residents and those who had been in the state for over a year qualified as a bona fide residency requirement or something more. See Saenz, 119 S. Ct. at 1532-33 (Rehnquist, C.J., dissenting).

(42.) See id. at 1527-28.

(43.) See id. at 1533-34 (Rehnquist, C.J., dissenting).

(44.) The majority observed that

   [t]he favored class of beneficiaries includes all eligible California
   citizens who have resided there for at least one year, plus those new
   arrivals who last resided in another country or in a State that provides
   benefits at least as generous as California's. Thus, within the broad
   category of citizens who resided in California for less than a year, there
   are many who are treated like lifetime residents. And within the broad
   sub-category of new arrivals who are treated less favorably, there are many
   smaller classes whose benefit levels are determined by the law of the
   States from whence they came. To justify [the law], California must
   therefore explain not only why it is sound fiscal policy to discriminate
   against those who have been citizens for less than a year, but also why it
   is permissible to apply such a variety of rules within that class.

Id. at 1527. It is here that the permissible fiscal rationales California proffered in support of the law seem most lacking.

(45.) This is not to say it had nothing to do with it. Justice Rehnquist took issue with the very notion that the Court's "right to travel" jurisprudence could be neatly folded within the Privileges or Immunities Clause as construed in Slaughter-House.

   I cannot see how the right to become a citizen of another State is a
   necessary "component" of the right to travel, or why the Court tries to
   marry these separate and distinct rights. A person is no longer "traveling"
   in any sense of the word when he finishes his journey to a State which he
   plans to make his home.

Id. at 1531 (Rehnquist, C.J., dissenting). That criticism is evocative of John Ely characterizing substantive due process as "a contradiction in terms--sort of like `green pastel redness.'" ELY, supra note 7, at 18.

(46.) 119 S. Ct. at 1535-38 (Thomas, J., dissenting).

(47.) I use "framers" as rough shorthand to refer to: (1) the members of the joint committee, led by Bingham, who actually drafted the Clause; (2) the participants in the congressional debates over it; and (3) members of the state legislatures who ratified it. Of course, those groups vary in importance. I place the most emphasis on the first group (those in Congress who drafted the Amendments), followed closely by the second (those in Congress who debated the Amendments), based on both the quality and clarity of the historical record and the relative degree to which they were likely familiar with the Clause and thus informed of its meaning.

(48.) See, e.g., Fairman, supra note 10, at 137-39; Graham, supra note 7, at 38-39.

(49.) See Fairman, supra note 10, at 8. There is no shortage of historical accounts of the framing of the Privileges or Immunities Clause. See e.g., HORACE EDGAR FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908); Graham, supra note 7; Harrison, supra note 7. Fairman, however, is painstakingly thorough and complete in developing his account. While his stated objective is to challenge Justice Black's assertion that the Fourteenth Amendment was intended to incorporate the Bill of Rights wholesale, Fairman marshals all the historical evidence he deems relevant in casting light on the Privilege or Immunities Clause's meaning. That evidence includes: legislative debates over the Civil Rights Bill; early drafts of the Privileges or Immunities Clause and the actual framing of the Fourteenth Amendment; House and Senate debates over the Fourteenth Amendment; contemporaneous media accounts; and evidence surrounding ratification among the several states. Fairman's own occasional commentary is incisive and forceful but relatively sparse--it leaves the reader ample chance to explore the voluminous record and draw independent conclusions. My historical analysis borrows heavily from Fairman's outstanding scholarship and devoted inquiry. It is simply a distillation of what he so providently provided, and I am greatly indebted to him for his efforts.

It bears noting that Fairman's historical account of the Fourteenth Amendment's framing factored prominently in the back and forth between Justice Black's concurrence and Justice Harlan's dissent in Duncan v. Louisiana, 391 U.S. 145 (1968), which held that the Due Process Clause required a jury trial in a state trial of a defendant for battery. See id. at 165 (Black, J., concurring); id. at 174-75 (Harlan, J., dissenting). I obviously share Justice Harlan's assessment of the "overwhelming evidence marshalled by Professor Fairman." Id. at 174 (Harlan, J. dissenting).

(50.) See Fairman, supra note 10, at 21-22.

(51.) Id. at 16 (quoting Senator Trumbull's exposition of the Bill, CONG. GLOBE, 39th Cong., 1st Sess. 474 (1865-1866)).

(52.) See id. at 21.

(53.) See id. at 42.

(54.) The concern was that Congress otherwise lacked any constitutional authority for regulating the rights states chose to accord their own citizens. See id. at 38, 44, 61.

(55.) Id. at 44.

(56.) A vital distinction noted by RONALD, DWORKIN, LAW'S EMPIRE 70-72 (1986) (explaining that even specific "[c]onceptions of law, which are theories about the grounds of law, commit us to no particular or concrete claims about how citizens should behave or judges should decide cases" and that well-accepted principles still permit dissent and deviation in the face of shifting circumstances), and Rosen, supra note 8, at 1242 (noting that the Fourteenth Amendment, "in its original context[,] was designed to do something very different: namely to secure ... `limited absolute equality' with regard to civil rights").

(57.) See Fairman, supra note 10, at 45, 51-53, 57-58, 76. For instance, Representative Garfield, advocating on behalf of the Clause's protections for fundamental rights, loftily proposed "`to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it.'" Id. at 45 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2462 (1865-1866)).

(58.) Graham, supra note 7, at 17.

(59.) 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230) (upholding a law that permitted only New Jersey's residents, and not other states' residents, to fish oysters from New Jersey).

(60.) Id. at 551. These fundamental principles "may ... be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety." Id. at 551-52.

(61.) This is where confusion first begins: Justice Washington left it ambiguous as to whether the "fundamental principles" he announced were absolutely protected against encroachment by a particular state or were protected only to the extent the state accorded them to its own citizens. See Fairman, supra note 10, at 11. But the Clause's framers, including John Bingham, blithely proceeded under the assumption he meant the former. See id. at 12, 33, 57-58, 61.

(62.) Corfield, 6 F. Cas. at 551.

(63.) Fairman, supra note 10, at 19 (quoting GEORGE S. BOUTWELL, 2 REMINISCENCES OF SIXTY YEARS IN PUBLIC AFFAIRS 42 (1902)).

(64.) See id. at 21.

(65.) Id. at 31 (quoting CONG. GLOBE, 39th Cong., 1st sess. 1065 (1865-1866)).

(66.) See notes 69-76 infra and accompanying text.

(67.) 32 U.S. (7 Pet.) 243 (1833).

(68.) Id. at 250.

(69.) Fairman, supra note 10, at 34 (quoting CONG. GLOBE, 39th Cong., 1st sess. 1089 (1865-1866)).

(70.) Bingham thus either overlooked or misapprehended Barron's holding. See notes 67-68 supra.

(71.) See Fairman, supra note 10, at 24. Bingham's own "singular opinion" was thus that the Privileges or Immunities Clause of Article IV, Section 2 already prohibited state encroachment on the very same fundamental rights, and Congress simply lacked power of enforcement. Id. at 25. Others in the House, however, held somewhat similar views. Representative William Higby stated:

   "When we read this proposed amendment we will think it already embraced in
   the Constitution, but so scattered through different portions of it that it
   has no life or energy. But by condensing it, as we find it in this joint
   resolution, should it become a portion of the Constitution, it will then
   become operative and beneficial."

Id. at 28 (quoting CONG. GLOBE, 39th Cong., 1st sess. 1054 (1865-1866)) (emphasis added). And Representative William Kelley supported the proposed amendment, believing it would eliminate all doubt as to Congress's powers which he believed "`to have been there from the hour of [the Constitution's] adoption.'" Id. at 29 (quoting CONG. GLOBE, 39th Cong., 1st sess. 1057 (1865-1866)).

(72.) Id. at 24 (quoting CONG. GLOBE, 39th Cong., 1st sess. 1033 (1865-1866)).

(73.) Id. at 51-53 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2542 (1865-1866)) (emphasis added).

(74.) Justice Washington's opinion in Corfield had construed these rights in the limited context of Article IV, Section 2, and it left open the possibility that these rights were protected only to the extent that they were accorded to residents by the local government. That is, nonresidents were entitled to only those fundamental fights that local government chose to afford its own residents. See Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230). Bingham seemed to overlook this competing interpretation. See Fairman, supra note 10, at 33.

(75.) Bingham thus viewed Barron as holding the Bill of Rights unenforceable against states and not altogether inapplicable to them. It bears repeating, however, that he was confused on this score. Barron held not only that the Bill of Rights was unenforceable against states as a practical matter, but that it altogether did not, even in theory, bind them. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833).

(76.) Bingham sustained this same interpretation when campaigning in Ohio after Congress approved the Amendment. See Fairman, supra note 10, at 76. He claimed, first, that the Amendment did not deny states any prerogatives they already possessed but that it only made enforceable existing constitutional constraints; and, second, that certain fundamental rights deserved the absolute protections the Amendment promised. According to Bingham, the Amendment:

   takes from no State any right which hitherto pertained to the several
   States of the Union, but it imposes a limitation upon the States to correct
   their abuses of power, which hitherto did not exist within the letter of
   your Constitution, and which is essential to the nation's life....
   Hereafter the American people can not [sic] have peace, if, as in the past,
   States are permitted to take away freedom of speech, and to condemn men, as
   felons, to the penitentiary for teaching their fellow men that there is a
   hereafter, and a reward for those who learn to do well.

Id. (quoting Bingham's speech as reported in CIN. COM., Aug. 27, 1866, at 1). Clearly, then, Bingham thought that the Amendment would place certain fundamental but unenumerated rights outside the prerogatives of any given state. His prior statements reveal that the Clause was his instrument for achieving this.

(77.) Id. at 25. But see note 71 supra (quoting other representatives who maintained that the Constitution already afforded the same guarantees, only not as clearly and powerfully as it would with the Clause's addition).

(78.) One proponent was Senator Trumbull who defended the Civil Rights Bill and appealed to the principles contained in the Declaration of Independence. See Fairman, supra note 10, at 16-17. Another proponent was Representative George F. Miller, who praised the protections as "`clearly within the spirit of the Declaration of Independence.'" Id. at 48 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2510 (1865-66)). Senator Jacob M. Howard, in his opening remarks in the Senate supporting the Bill, spoke of "`privileges and immunities ... [that] are not and cannot be fully defined in their entire extent and precise nature.'" Id. at 57 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2765 (1865-1866)). This conception of the Clause as enshrining the ethereal and hitherto illusory protections of the Constitution's spirit so as to enjoin state violations was also reflected in contemporary media reports. See id. at 69, 75 (quoting excerpts from the Chicago Tribune, Boston Daily Advertiser, and Cincinnati Commercial).

(79.) Thus, Thaddeus Stevens, as chairman of the House delegation to the Joint Committee on Reconstruction, explained in his report to the House that the rights listed in the Constitution had hitherto "`limit[ed] only the action of Congress, and [did] not ... limit[] ... the States,'" a "`defect'" the Amendment supplied. Id at 43 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2459 (1865-1866)). Senator Poland harked to the privileges and immunities of citizens as securing "`nothing beyond what was intended by the original provision in the Constitution [in Article I, Section 2],'" which provision, however, had suffered "`a practical repudiation'" by the southern states. Id. at 61 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2961 (1865-1866)). Poland also adverted to the rights "`declared in the Declaration of Independence and in all the provisions of the Constitution'" in his defense of the Amendment. Id.

(80.) Whether these framers were right or wrong in their interpretation of Corfield is ultimately irrelevant. Bingham also placed much stock in Corfield in drafting and defending the Clause. See Fairman, supra note 10, at 25-26 (alluding to Bingham's "point of view," presumably derived from Corfield, that the privileges and immunities secured under Article IV, Section 2 "comprise the `immortal bill of rights'"). The important point is that the framers conceived of the Clause as offering constitutional enactment and enforcement of their particular theory. Suspect assumptions about Corfield "cannot erase the significance for a responsible interpretation of the Fourteenth Amendment of the fact that that amendment's framers repeatedly adverted to [Justice Washington's] Corfield discussion as the key to what they were writing." ELY, supra note 7, at 29 (emphasis in original).

(81.) Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230).

(82.) Representative Schuyler Colfax, Speaker of the House, explained that he "`love[d]'" the Fourteenth Amendment "`because it is the Declaration of Independence placed immutably and forever in our Constitution.'" Fairman, supra note 10, at 73 (quoting Colfax's speech as reported in CIN. COM., Aug. 9, 1866, at 2). Representative Miller likewise alluded to Section 1 of the Amendment as "`so clearly within the spirit of the Declaration of Independence ... that no member of this House can seriously object to it.'" Id. at 48 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2510 (1865-1866)). Bingham himself alluded to the promise that citizens would be federally protected in life, liberty, and property. See id. at 51-53. And Justice Washington's influential passage in his Corfield opinion spoke in terms of rights to "enjoyment of life and liberty ... and to pursue and obtain happiness and safety." Corfield, 6 F. Cas. at 551-52.

That these framers made continuing allusions to the Declaration of Independence as part of a natural rights theory that underlay the Clause makes perfect sense.

   By the mid-1830's the privileges and immunities phraseology ... together
   with the guarantee of due process from the Fifth Amendment and from the
   state bills of rights, and above all the  concept of full and equal
   protection of the laws derived from the `self-evident truths' of the
   Declaration, had already taken their place as a system of constitutional
   shorthand.

Graham, supra note 7, at 5-6.

(83.) See ELY, supra note 7, at 26.

(84.) Fairman, supra note 10, at 55 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2765 (1865-1866)).

(85.) Id.

(86.) Id.

(87.) Id. at 57-58 (emphasis added).

(88.) Fairman's historical account certainly makes a persuasive case that it should not. See id. at 58-59.

(89.) See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (arguing for incorporation of those rights "implicit in the concept of ordered liberty"), and its progeny. See also Fairman, supra note 10, at 139 (concluding "Justice Cardozo's gloss on the due process clause [as quoted from Palko] comes as close as one can to catching the vague aspirations that were hung upon the privileges and immunities clause").

(90.) Graham, supra note 7, at 6.

(91.) See note 87 supra and accompanying text (quoting Howard).

(92.) See notes 96-98 infra and accompanying text (discussing the obvious problems with this approach).

(93.) Fairman, supra note 10, at 50 (quoting CONG. GLOBE, 39th Cong., 1st sess. 2538 (1865-1866)).

(94.) Id. at 65 (quoting CONG. GLOBE, 39th Cong., 1st sess. 3147 (1865-1866)).

(95.) See id.

(96.) Id. at 62 (quoting CONG. GLOBE, 39th Cong., 1st sess. App. 217 (1865-1866)).

(97.) The folly of this approach does not become evident only in hindsight, with the benefit of observing how difficult it has been to interpret faithfully the Clause. The rather wistful and otherworldly perspective many proponents brought to the debates surrounding the Privileges or Immunities Clause had obvious failings even then. That perspective stood in stark and profound juxtaposition to the reality of the times: The constitutional truths many insisted upon as self-evident had been utterly contradicted by decisions of the Court--in both Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833), and Scott v. Sandford, 60 U.S. (19 How.) 393, 481-90 (1856) (constitutionalizing the practice of slavery)--and violently resisted by the southern states. Principles such as equal protection for all persons, that the framers insisted were beyond dispute had in fact sparked a civil war. The rhetoric the Clause's proponents brought to the congressional debates did not rationalize these contradictions but simply ignored them.

(98.) Graham, supra note 7, at 38.

(99.) Fairman, supra note 10, at 63 (quoting CONG. GLOBE, 39th Cong., 1st sess. 3031 (1865-1866)).

(100.) Id. at 64 (quoting CONG. GLOBE, 39th Cong., 1st sess. 3039 (1865-1866)).

(101.) Id (quoting CONG. GLOBE, 39th Cong., 1st sess. 3041 (1865-1866)).

(102.) Id. at 69 (quoting B. DALLY ADVERTISER, May 24, 1866, at 1).

(103.) Fairman explains his methodology for coping with the sparseness of the historical record here. He describes:

   what significant evidence [of the proceedings in the several states] one
   might expect to find. There will be the governor's message, and possibly a
   report from the legislative committees on federal relations.... The
   legislatures, almost without exception, kept no record of debates, but only
   a journal of motions and votes. We shall find a few newspaper summaries of
   speeches--but these are inadequate and, one comes to see, far less
   significant than some other lines of inquiry.

Id. at 82.

(104.) See id. at 84-132 (reviewing individually the states' ratification). Here, Fairman attaches much significance to the consistency or lack thereof between (1) state constitutions as they existed at the time of ratification and as they were subsequently interpreted and (2) any proposed interpretation of the Amendment. See id. His obvious point is that states would not have interpreted the Amendment in a fashion at odds with their own practices, at least not without changing their practices to create conformity. See id. at 82-84. He attaches similar significance to any inconsistency between the southern states' constitutions, as approved by Congress for readmission into the Union, and any proposed interpretation. See id. at 126-43.

I, however, attach no such significance to either. For Fairman's more salient point is that Congress and the states were so preoccupied, with the interrelationship between the Amendment and the Civil Rights Bill that the provisions of both were treated "as though they were essentially identical with those of the other." Id. at 44. It seems wholly unsurprising and unremarkable that the abstract principles the framers of the Amendment enshrined for posterity might give way, even in their own minds, to the pressing exigencies of the nation's reconstruction. In this light, it is particularly believable "that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next." Lee v. Weisman, 505 U.S. 577, 626 (1992) (Souter, J., concurring) (arguing that original framers' own inconsistent practice does not refute Establishment Clause prohibition). It is only on the margins of the framers' more generalized discussions that we find evidence useful to the present task.

(105.) And this is precisely what Slaughter-House did. See notes 9-27 supra and accompanying text. Even after Saenz, the Court has yet to disturb that legacy. Excellent arguments have already been made as to why Slaughter-House was wrong, and I accept them as my starting point. See notes 7-8 supra and accompanying text.

(106.) In fact, there is far more basis for attaching the body of law we now know as substantive due process to the Privileges or Immunities Clause than to the Due Process Clause.

(107.) See notes 31-48 supra and accompanying text (describing Saenz's potential to reopen examination of the Clause).

(108.) "Because the [literal] text of the Fourteenth Amendment itself is written with such an unrestrained sweep, [the Clause] constitutes the great challenge to the simultaneous pursuit of both fidelity to text and judicial restraint." Dellinger, supra note 7, at 1293 (first bracket in original).

(109.) See notes 100-101 supra and accompanying text.

(110.) See, e.g., notes 73, 86-87 supra and accompanying text.

(111.) An opinion Justice Thomas apparently shares. See note 1 supra and accompanying text.

(112.) 73 U.S. (6 Wall.) 35, 44 (1867) (espousing Slaughter-House's subsequent conception of privileges and immunities, but under Article IV, Section 2).

(113.) See id. As such, the Court need not have relied on the Clause in Saenz, and its decision to do so is all the more conspicuous and telling. See notes 35-36 supra and accompanying text.

(114.) Rosen, supra note 8, at 1245. This is part and parcel of the framers' conception of a set of preexisting, unenumerated, fundamental rights that would be made enforceable against the states. Equal protection and due process were only illustrative of that larger set. Though my conception expresses the Privileges or Immunities Clause and Equal Protection Clauses as securing separate protections, that can readily be made to conform to the framers' conception: Equal protection and equality under the law would simply be understood as absolute substantive rights, a subset of the privileges and immunities to which all citizens are entitled, no matter where they reside.

(115.) THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

(116.) Moore v. East Cleveland, 431 U.S. 494, 502 (1977).

(117.) Palko v. Connecticut, 302 U.S. 319, 325 (1937).

(118.) I am grateful to Brian Boynton for bringing this strawperson to life, chiding me mercilessly with this very question. But others also make the same point quite effectively. See, e.g., Dellinger, supra note 7, at 1293 ("[T]he error of forcing subsequent courts to mm to the wrong clause seems to be more of interest to a compiler of head notes than to citizens and scholars. Having the Due Process Clause do the work intended for the Privileges and Immunities Clause may be awkward, but it is not a constitutional tragedy.").

(119.) See notes 7-8 supra and accompanying text.

(120.) See note 114 supra and accompanying text.

(121.) See id.

(122.) This set is not static, but it is strictly limited and evolves only very slowly. See notes 145-147 infra and accompanying text.

(123.) See, e.g., Palko v. Connecticut, 302 U.S. 319, 325 (1937) (discussing rights "implicit in the concept of ordered liberty").

(124.) It is perhaps less obvious, but nonetheless essential, that my conception of the Clause would bind the federal government just as it does the states via the Fifth Amendment's Due Process Clause and the existing legal fiction of "reverse incorporation," whereby the Framers of the Filth Amendment are imagined to have anticipated and adopted developments under the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (holding that the federal government's violation of the principle of equal protection denies due process under the Fifth Amendment). This is so although the Fifth Amendment preceded the Fourteenth by nearly a century and the original framers had no comparable understanding of concepts such as equal protection when they framed the Fifth Amendment. However untidy and puzzling this rationale may seem, it comports with our existing constitutional framework and achieves the intent of the framers of the Privileges or Immunities Clause, who believed that the federal government was already bound to respect individual rights enshrined within the Constitution's spirit.

(125.) See notes 151-178 infra and accompanying text.

(126.) The states and the federal government alike are bound. That is thanks to the strange quirk of reverse incorporation whereby the Equal Protection Clause of the Fourteenth Amendment, which, by its terms, binds only the states, is now understood as included in the Fifth Amendment's Due Process Clause. See note 124 supra.

(127.) Moore v. East Cleveland, 431 U.S. 494, 502 (1977); see Saenz v. Roe, 119 S. Ct. 1518, 1538 (1999) (Thomas, J., dissenting). This prospect, as it arises in construing this "constitutional provision whose meaning is largely unknown," is what troubles Robert Bork in his strident criticism of the Clause and efforts to revive it. ROBERT H. BORK, THE TEMPTING OF AMERICA 39 (1990). To him, the fact "that the ratifiers of the amendment presumably meant something is no reason for a judge, who does not have any idea what that something is, to make up and enforce a meaning that is something else." Id. No matter how cryptic one finds the Clause and its history, one cannot agree that a judge is left without any idea of what it means so as to warrant nullification.

(128.) This makes for something of a paradox. How do judges faithful to constitutional text and bound by judicial restraint faithfully construe text whose very intent is to invite judicial excesses? I don't think the Privileges or Immunities Clause presents such an extreme case, but it readily calls to mind the question. See Dellinger, supra note 7, at 1293 (indicating the "unrestrained sweep" of the actual text "constitutes the great challenge to the simultaneous pursuit of both fidelity to text and judicial restraint"); see also Fairman, supra note 10, at 56 (remarking on a framer whose own uncertainty about the Clanse's meaning led him to recommend that "Congress establish a form of words yet defer to the judiciary the settlement of what they meant").

(129.) Rosen, supra note 8.

(130.) Rosen, supra note 8, at 1254 (citing Lochner v. New York, 198 U.S. 45 (1905)).

(131.) See id. at 1248-63.

(132.) For that matter, however distressing it may seem to our modern post-Lochner sensibilities, Slaughter-House might at the time have been decided in favor of the plaintiffs had the Court been less dismissive of the Clause as a whole. See Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230) (including as part of the "enjoyment of life and liberty," "the right to possess property of every kind").

(133.) See Lochner, 198 U.S. at 53-54, 58.

(134.) This is the point Michael Kent Curtis is getting at, I think, in his reply to Jeffrey Rosen when he writes: "[T]he Court and most scholars have repudiated Lochner, and many of us, and probably most Americans, think of Lochner-era jurisprudence as an abuse of judicial power." Michael Kent Curtis, Two Textual Adventures: Thoughts on Reading Jeffrey Rosen's Paper, 66 GEO. WASH. L. REV. 1269, 1288 (1998).

(135.) See, e.g., Michael P. Zuckert, Do Natural Rights Derive from Natural Law?, 20 HARV. J.L. & PUB. POL'Y 695, 701-02 (1997) (explaining the distinction between positive and negative rights). The obvious problem is that one's negative rights mean nothing by themselves in the abstract. To achieve substance, they must always depend upon government enforcement and the positive devotion of resources to secure the desired protection. They are otherwise totally illusory. See, e.g., Michael C. Dorf, Create Your Own Constitutional Theory, 87 CAL. L. REV. 593, 604 (1999) (providing an example of a negative right that depends on government enforcement).

(136.) The positive-versus-negative-rights distinction begins to break down as soon as we venture into the First Amendment protections surrounding access to public and other for a furnished by government. Yet I think the basic point still remains.

(137.) See, e.g., Cox v. Louisiana, 379 U.S. 536, 550 (1965) (upholding an individual's right peacefully to express unpopular views); Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (suggesting that the government has an obligation to protect speaker from hostile audiences rather than silence the speaker).

(138.) See, e.g., Griffin v. Illinois, 351 U.S. 12, 18-19 (1956) (holding that a state may not grant appellate review in such a way as to discriminate against criminal defendants because of their poverty).

(139.) See, e.g., Gideon v. Wainright, 372 U.S. 335, 342-44 (1963) (holding that the right of an indigent criminal defendant to assistance of counsel was a fundamental right essential to a fair trial).

(140.) My point is not that the Clause's text commends the constitutionalization of positive rights, but only that the rhetoric of "privileges" alongside "immunities" offers ammunition to those inclined to push further in that direction. It is therefore worth recognizing the dangers in advance and exercising caution.

(141.) This would effectively substitute citizens declared to have a constitutionally enshrined "privilege" of obtaining a particular level of welfare benefits for bakery owners whose private property rights were declared beyond wage-and-hour regulation in Lochner.

(142.) Palko v. Connecticut, 302 U.S. 319, 325 (1937).

(143.) Id.

(144.) "Brooding over the matter ... has ... slowly brought the conclusion that Justice Cardozo's gloss on the due process clause--what is `implicit in the concept of ordered liberty'--comes as close as one can to catching the vague aspirations that were hung up on the privileges and immunities clause." Fairman, supra note 10, at 139.

(145.) See note 56 supra and accompanying text (distinguishing between framers narrow conception and their broader concept); note 105-106 supra and accompanying text (arguing Clause should evolve just as the Due Process and Equal Protection Clauses have).

(146.) This approach comports with Michael W. McConnell's assessment that the privileges and immunities the framers sought to secure were those rights that were "uniform, not varying from state to state; ... [and] not subject to the vicissitudes of legislative policy." Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947, 1028 (1995).

(147.) Or left-minded, or wrong-minded, or any other type of thinker thinking alone, no matter how clever.

(148.) See notes 140-141 supra and accompanying text.

(149.) See notes 151-154 infra and accompanying text; see also Kramer v. Union Free Sch. Dist., 395 U.S. 621, 625-26 (1969) (implying that U.S. citizenship requirement for voting is constitutional and well accepted).

(150.) But see Plyler v. Doe, 457 U.S. 202, 230 (1982) (holding that the denial of access to public schools to children of illegal aliens violates equal protection).

(151.) See Kramer, 395 U.S. at 627 (explaining that strict scrutiny is triggered if a state "grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others").

(152.) Reasonable minds will often differ over what rights should be considered fundamental. The right to vote seems a relatively unobjectionable example of one that is. But other fights will not be so clear-cut. That is why my formulation requires more than the simple determination that a right is fundamental; it also requires the existence of a clear consensus among states that reinforces that understanding as one existing and accepted throughout the United States.

(153.) See, e.g., Reynolds v. Sims, 377 U.S. 533, 554-55, 561-62 (1964) (characterizing the right to vote as "a fundamental matter"). This is also where Justice Warren makes what some may deem a poignant, and all must find unassailable, point that "[l]egislators represent people, not trees or acres." Id. at 562.

(154.) Though I've not undertaken a survey, my strong sense is that this right, or at least a mandatory voting procedure assuring the right de facto, is enshrined in the constitutions of each of the fifty states. If that is so, it is a very strong indicator indeed of a consensus among states recognizing this right as fundamental.

(155.) Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890); see also William C. Heffernan, Privacy Rights, 29 SUFFOLK U. L. REV. 737, 739-40 (1995) (arguing that the Constitution focuses on civic rights but should apply to personal rights as well and protect the right to privacy).

(156.) See Griswold v. Connecticut, 381 U.S. 479, 482-85 (1965) (tracing string of cases confirming the notion that "zone of privacy" exists).

(157.) See id. at 485-86 (holding that ban on sale of contraception to adults is unconstitutional as a violation of fundamental rights that the Due Process Clause protects).

(158.) See id. at 482-85 (discussing the privacy notions embedded in, inter alia, the Third, Fourth, Fifth and Ninth Amendments to the Constitution). In his influential concurrence, Justice Harlan recalls Justice Cardozo's carrier description in Palko of rights "`implicit in the concept of ordered liberty.'" See id. at 500 (Harlan, J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 355 (1937)).

(159.) The trouble here is that Griswold's relatively unguided approach under substantive due process may have conjured the uniform state practice I construe as evincing consensus. My approach thereby inherits the prisoners of the very judicial sentries I aim to replace. I don't see any way around this dilemma. My aim is not to change history but work with what it provides. To the extent the Court's existing substantive due process jurisprudence has wrought a self-fulfilling prophecy of consensus among states that translates into protection under my construction of the Clause, that seems acceptable and unavoidable. We therefore generally should not expect to reach different conclusions under the Clause for those rights the Due Process Clause already safeguards as fundamental. But as the one replaces the other, I think we will reach different results in the future, and with greater integrity and faith in the judicial process.

(160.) See, e.g., Osborne v. Ohio, 495 U.S. 103, 108-11 (1990) (holding that First Amendment does not prohibit states from proscribing the private possession of child pornography).

(161.) See, e.g., Stanley v. Georgia, 394 U.S. 557, 565 (1969) ("If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.").

(162.) See, e.g., Griswold, 381 U.S. at 479 (describing Third and Fourth Amendment's specific protections of the home).

(163.) See Stanley, 394 U.S. at 565. Interestingly, this freedom from "mind control" and regulation of one's ideas seems to offer a better foundation for the concept of "listeners' rights" that the Court has developed as part of the First Amendment's guarantee of free speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501-03 (1996) (holding that prohibitions against advertising liquor prices constitute unconstitutional "state attempts to deprive consumers of accurate information about their chosen products"); Virginia Bd. of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763-65 (1986) (finding right to advertise prescription drug prices based on consumers' First-Amendment interests "in the free flow of information" and "the formation of intelligent opinions). The leap from a speaker's right of expression to a listener's right to information seems something of a non sequitur. It also makes for awkward judicial opinions, particularly those protecting corporate and commercial speech under the auspices of the First Amendment. The general respect and protections states provide consumers to ensure their unfettered access to information might translate into privileges and immunities the Clause protects. This might provide a simpler and more convincing justification for the concept of "listeners' rights" and the protections afforded to certain types of speech as we now know them. That discussion, however, is best left for another day.

(164.) 478 U.S. 186 (1986) (upholding antisodomy law used to prosecute plaintiff for engaging in homosexual conduct).

(165.) This scenario differs from the situation in Bowers in that it isolates the sexual activities and the rights to engage therein from the separate constitutional concerns arising in the context of the private home.

(166.) See Bowers, 478 U.S. at 192-94; Yao Apasu-Gbotsu, Robert J. Arnold, Paul DiBella, Kevin Dorse, Elisa L. Fuller, Steven H. Naturman, Dung Hong Pham & James B. Putney, Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. MIAMI L. REV. 521, 523-25 (1986) (tracing long, established history surrounding states' antisodomy laws and finding that twenty-four states and the District of Columbia at the time had antisodomy laws, though only six singled out homosexual sodomy). But see Susan Ayres, Coming Out: Decision-Making in State and Federal Sodomy Cases, 62 ALB. L. REV. 355, 378-79 (1998) (describing several state court decisions, handed down after Bowers, that invalidate antisodomy laws based on state constitutions' rights to privacy and equal protection). The trend among state courts that Ayres and others cite is an important one, but does not get us all the way to a clear consensus throughout the entire country. A recent study showing that state practices are currently uniform in repealing (or holding unconstitutional) antisodomy laws is instead required. If such a showing is made, the sole remaining question, given the continuous history of antisodomy laws, is the length of time for which that consensus must be in place. See note 147 supra and accompanying text.

(167.) I find it a very persuasive argument that an adult's right to control his or her own private, intimate sexual relations, so long as they are practiced with other consenting adults and do not pose a direct harm to others, is a fundamental right and one "implicit in the concept of ordered liberty." That alone, however, is not enough. The trend among states may be towards recognition and protection of that right, but we are not there yet. The Privileges or Immunities Clause is not a vessel for pouring content into the Constitution and securing rights not already understood as attaching to citizenship; where doubt remains and no consensus exists, only an express constitutional mandate can establish, as opposed to protect against reversal, a constitutional right.

(168.) See, e.g., Bowers, 478 U.S. at 219 (Stevens, J., dissenting) (noting that "Georgia's prohibition on private, consensual sodomy has not been enforced for decades).

(169.) See notes 161-162 supra and accompanying text.

(170.) The right to vote does demand provision of significant resources and might be considered a "privilege" rather than an "immunity" of citizenship. I think a possible right to public education poses a more challenging case and is therefore a more interesting illustration of what a positive privilege might look like.

(171.) Apologies to Robert Long, who first and most vehemently proposed this to me, for disagreeing with him then. I think we still differ considerably, however, in how we conceive of this right.

(172.) See generally Timothy D. Lynch, Education as a Fundamental Right: Challenging the Supreme Court's Jurisprudence, 26 HOFSTRA L. REV. 953 (1998) (arguing that "economically disadvantaged children, who generally receive an inferior education, have a fundamental right to receive the same educational opportunities as other children").

(173.) See, e.g., id.

(174.) Essentially the same argument can be made for welfare more generally and in the abstract. Yet the mere statement that a "privilege" exists for the neediest families to obtain some level of public assistance seems largely meaningless. Welfare programs are so disparate, and the interaction between states and the federal government sufficiently complex, that generalizing about possible rights without rigorous research would be spurious. Moreover, the Lochner concerns loom large here; much of the fundamental rights analysis might necessarily be foreclosed under my formulation of the Clause. In any case, a far more probing analysis would be required to draw any useful conclusions about welfare as a whole.

(175.) 411 U.S. 1 (1973).

(176.) See id. at 17.

(177.) The constitutional question this hypothetical raises is whether, putting aside Establishment Clause and other constitutional concerns, a state's reliance on a voucher system to provide schooling from grades K through 12 might violate the Clause. This concern would only arise if a state relied on vouchers to the exclusion of maintaining its own public schools. I do not believe that the provision of vouchers, even in the absence of state maintenance of public schools, would violate the Clause under my conception so long as the vouchers were adequate in securing the same basic level of education for all concerned: While the specific and clear practice among states favors a public school system over a scheme based entirely on private vouchers, it is exceedingly difficult to argue that provision of the former over the latter is a fundamental right where the two are functionally equivalent.

(178.) For these are matters subject to widely differing practices among states. In addition, arguments as to why a fundamental right exists to a particular allocation founder on weak footing.

(179.) Implicating the right to vote and the right to public education, respectively. See note 151 supra and accompanying text; note 170 supra and accompanying text.

(180.) Alternatively, some might say that if such cases do arise, a constitutional amendment will always be available as a remedy given the strong consensus supporting the right at stake. This could be argued to show either the irrelevancy of my conception of the Clause (it secures only those protections already available de facto) or its inappropriateness (it circumvents the proper route to securing constitutional protections). Yet the remedy of a constitutional amendment is largely inapposite and wholly unsatisfying in this context. The deviations I argue the Clause is concerned with would likely be relatively discrete and of short duration. As such, they might not engender sufficient national attention and mobilization to protect the relevant citizens' rights in a timely fashion. There would be considerable utility in having a prompt constitutional remedy available. Moreover, much of what the Clause secures is the peace of mind and certitude of knowing that certain rights at the core of our constitutional conception are not illusory if put to the test by a rogue state. Finally, even where a consensus supports a particular right, the simple process of securing a constitutional amendment at the expense of an unwilling state may be politically divisive and extraordinarily time consuming. This was the resounding message of the Civil War and at the forefront of the framers' minds in drafting the Clause. Their intention was to put certain rights beyond the fickleness of state politics, by ensuring those rights already understood to exist under our constitutional framework thereafter would not, if tested, require separate constitutional amendment to find protection.

(181.) Again, according to my formulation, these are those rights that (1) are conceived of as fundamental; (2) are established by clear consensus among states; and (3) do not implicate purely economic concerns, issues disputed by adherents to different economic theories, or otherwise unduly intrude on governmental discretion in economic allocations and policy decisions. See notes 142-148 supra and accompanying text.

Derek Shaffer, J.D. Candidate, Stanford Law School, 2000; B.S., Cornell University, 1996. Many thanks to those whose invaluable support and assistance allowed me to write this piece: First and foremost, to my parents, John and Judy, and my brother, Evan. To Professors Gerald Gunther and Kathleen Sullivan, who between them provided me, through text and through instruction, a rich and powerful indoctrination in constitutional law, I am especially indebted to Professor Gunther for his insightful and attentive supervision of this Note. To Charles Fairman, whose compendious and painstakingly detailed account of the history surrounding the framing of the Fourteenth Amendment and the Privileges or Immunities Clause provided my starting point and greatly informed my own analysis. And finally, to my friends here, for being such good friends and for suffering my musings on this particular topic.