The Constitutional Rights, Privileges, and Immunities of the American People

Professor Amar shares in the sentiment that it is preposterous for the Court to persist in holding that the due process clause of the Fourteenth Amendment is the vehicle of selective incorporation of the Bill of Rights and specifically of the first amendment freedoms. One very good practical reason for resurrecting the privileges or immunities clause is the widespread opinion that the credibility of the Constitution as our fundamental charter of rights and liberties are undermined by judicial doctrines which are perceived, or capable of being perceived, by the ordinary citizen as nonsense-upon-stilts.

The Court’s theory as to how the Fourteenth Amendment due process clause incorporates some but not all of the rights specified in the Bill of Rights and as to how both due process clause protects unenumerated fundamental rights is full of anomalies and mysteries. Indeed, it strikingly resembles the astronomical theory of Claudius Ptolemy (circa, 85–165 A.D.), which postulated that the Earth was the center of what is now known as the solar system and which required numerous epicycles and deferents to save the appearances. As I. Bernard Cohen told the story:

It is quite understandable why the process of constitutional interpretation tends to have life of its own due to the quirks and accidents of history. The Court, having assigned the privileges or immunities clause to a secular counterpart of Limbo, eventually turned to the Fourteenth Amendment due process clauses as the vehicle of providing substantive protection for First Amendment and other freedoms in the American republic. It could hardly have avoided doing so, having given such a broad sweep to the liberty of contract during its hegemony in the constitutional order. The Court has since downgraded the hoary liberty of contract to very manageable (if not almost vanishing) limits, but it has also developed its particular theory of selective incorporation to fully safeguard First Amendment freedoms with respect to the states. Having done so, it could hardly fail to accord the same measure of protection to the other rights specified in the Bill of Rights. Stepping back, however, it is impossible not to regard the whole system as looking somewhat childish—so childish, that the time has come for the Court to “put away childish things.” We may hope with some confidence that some day the Court will re-evaluate its general theory of constitutional rights and replace it with one more credible—one that restores the privileges or immunities clause to its rightful place in our constitutional order. Thus the privileges or immunities clause would have rightly imputed to it a very important function such that it can no longer be said: “it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”

There was another major way in which the judicial construction of the Fourteenth Amendment was seriously flawed. The Court neutered the citizenship and privileges or immunities clause in the Slaughter-House Cases, and deprived it of its potency to endow African Americans with a national citizenship of a kind incompatible with an inferior and degraded caste status based upon race and color. The Court looked upon the equal protection clause as being the instrument to secure equality of black Americans with their white compatriots with respect to civil rights. But for many years, the Court deceived itself with the separate-but-equal doctrine that in practice very imperfectly secured some civil rights for nonwhite Americans. I look upon the independence of the judiciary and the principle of judicial review as indispensible elements in our constitutional order. Nevertheless, the wise counsel of the great Swedish statesman, Axel Oxenstierna (1583-1654) to his son (“Behold, my son, with how little wisdom the world is governed") unfortunately appears to apply just as frequently to justices and judges as to those who hold political office in the executive and legislative branches of government. Fortunately, the Court, since its decision in Brown v. Board of Education in 1954, has endeavored to develop constitutional law in such a way as to secure the right racial equality and vindicate other constitutional rights of the American people.

Despite many false steps and setbacks, the evolution of American constitutional law has more recently progressed in a way such that the Court may now take the next step and explicitly adopt a more intellectually satisfactory general theory of the constitutional rights, privileges and immunities of the American people—including the fundamental rights, privileges and immunities that are the badges and incidents of all free persons everywhere in the United States. This would not have been possible save as the eventual outcome of the Civil War which preserved the Union; as well as wars since then in which Americans, whether native-born or naturalized, and also resident aliens, of whatever race or color, have honorably and often courageously served in the armed forces with all too many of these men and women losing life or limb in doing so. Here one cannot pass without mention those many members of the armed forces who were ‘persons of color’ while the policy of segregation continued in full force until President Harry S. Truman boldly initiated its termination by executive order in 1948. Nor would the eventual laudable outcome of the Bill of Rights and reconstruction amendments as a charter of our rights and liberties have been possible without the sacrifice of so many American men and women of every race and color, of every faith or no faith, and of every place of origin—Americans who toiled from time to time at their peril and who sometimes suffered the loss of their lives during the long struggles for the vindication of the new birth of freedom for all the American people.

I cannot conclude without special mention of President Abraham Lincoln, the Great Emancipator, and Doctor Martin Luther King, Jr. In his famous “I Have a Dream” speech, delivered on August 28, 1963 at the Lincoln Memorial in Washington, D. C., King firmly and eloquently insisted that his Dream be peacefully realized. So at last his Dream has been dramatically realized in our time with the election of Senator Barack Obama as President of the United States of America. How Doctor King would have joyfully exclaimed were he with us today: “Free at last! free at last! thank God Almighty, we are free at last!”