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04/13/2019

More from Mark Pulliam on Privileges or Immunities
Michael Ramsey

At Law & Liberty, Mark Pulliam: Still Searching for the Judicial “Holy Grail”.  From the introduction:

Well into the 1980s, under the spell of what is now denigrated as the “old” originalism,” most conservative scholars shared the sentiment of University of Texas law professor Lino Graglia that the “privileges or immunities” clause is “one of those blessed constitutional provisions that by being ignored has not caused a single bit of trouble.” Not terribly long ago, incorporation was openly questioned, even if many skeptics conceded that stare decisis made doctrinal retreat impossible. Only outliers in the legal academy were concerned that the Slaughter-House Cases had rendered the clause “a vain and idle enactment,” as Justice Field lamented in his dissent. That was then.

Originalists have gotten “woke,” and–now styling themselves “new” originalists–have acquired an irresistible fascination for the once-moribund clause, and a renewed interest in exhuming a precedent that has mouldered in the jurisprudential ground for almost 150 years.  Robert Bork pronounced that the clause “has been a mystery since its adoption and, in consequence has, quite properly, remained a dead letter.”  “New” originalists bristle at Bork’s assessment, urging ever more creative interpretations of the words “privileges or immunities” in an attempt to revitalize a clause that has become what Justice Scalia derisively called the “darling of the professoriate.”

And from later on:

I am not the first—or only—dissenter on this subject, and commend the fine work done by the Hon. Stephen Markman, most notably his 2016 report for the Heritage Foundation, entitled “The ‘Judicial Holy Grail’: Why the Supreme Court Should Not Revisit the Privileges or Immunities Clause,” with which I agree and from which I freely borrow. Markman bluntly—but accurately—diagnoses the academy’s infatuation with the clause:

The continuing debate over the meaning of the clause is largely between factions of the “professoriate,” many of whom seem bent on conferring meanings to the clause that were never even remotely contemplated by its framers and ratifiers. The common result of these interpretations would be to further centralize and strengthen governmental power—in particular, that of the federal government at the expense of state governments and that of the judiciary at the expense of more accountable and representative branches of government.

To address my critics, I pose three questions. ...