Upham on "Privileges and Immunities of Citizens" between 1857 and 1861
Chris Green
New scholarship from David Upham on the Article IV background to the Fourteenth Amendment: The Meanings of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War. From the abstract:
This article presents important, largely-overlooked evidence concerning the antebellum understanding of the Privileges and Immunities Clause of Article IV, with an eye toward illuminating the Privileges or Immunities Clause of the Fourteenth Amendment.
This article explains that from 1857 to 1861, in the course of prominent national political debates, three contrasting interpretations of the Privileges and Immunities Clause arose: (1) a pro-slavery absolute-rights reading adopted by southern Democrats and some northern Democrats; (2) an anti-slavery absolute-rights reading adopted by Republicans; and (3) a strictly interstate-equality reading held by some northern and border-state Democrats. The prominence, if not dominance, of the first two readings represented, in some respects, radical developments relative to the interpretations that had prevailed in the courts and political debates before 1857. These first two readings, at the same time, effectively marginalized the interstate-equality reading that still largely prevailed in the courts.
This article concludes by noting the ways in which this evidence illuminates both the original understanding of the “privileges and immunities of citizens of the United States” secured by the Fourteenth Amendment, and the reason why the Fourteenth Amendment proved so vulnerable to judicial misconstruction.