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Prevalent Rights Theory
Andrew Hyman

Professor Michael Rappaport posted here on October 10 in favor of the view that the Privileges or Immunities (PI) Clause protects “rights that are prevalent throughout the United States at a particular time.  To determine what those rights are, one must look at what rights the states . . . protect.”  Mike goes on to say that there are two versions of this view: a static view that relies upon what “the great majority of states or virtually all states” protected as of 1868, versus a similar but dynamic view that allows “the great majority of states or virtually all states” to add further rights over time if they realize those rights need protection.
I am not sure whether Mike thinks states could subtract rights over time after recognizing a mistake, or whether a state could protect a right while deciding not to influence or compel any other state to do likewise.  I am also unsure why he excludes federal practice and includes only state practice as factors in determining what the rights of federal citizenship are.  In any event, the prevalent rights theory that Mike describes is an interesting theory, and I am pretty much supportive of the dynamic version of it, so long as “the great majority of states or virtually all states” means the supermajorities prescribed by Article V of the Constitution.  In other words, I think the dynamic theory of prevalent rights is already embodied in Article V of the Constitution, and not in the Fourteenth Amendment.
Congressman John Bingham addressed this matter in February of 1866, while discussing his initial draft of the PI Clause:
It is not to transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.
To me, the language of the final PI Clause, and its placement immediately after the Citizenship Clause, reflect what Bingham said in this quote.  And that makes perfect sense, because this quote from Bingham was an effort to placate opponents of his first draft, and so there would have been no reason for him to later backtrack from this quote.
More generally, a very longstanding rule of interpretation is that laws should be construed, if possible, so that they do not conflict with each other.  This rule applied in England for centuries, and Hamilton emphasized in The Federalist #78 that it applies in this country when considering the constitutionality of statutes.  Does this rule merely mean that a statute must be construed to avoid conflict with the Constitution, or does it also mean that the Constitution itself should be construed to avoid conflict with as many statutes as possible?  I think the latter must be true at least in cases of first impression, and probably to some extent in other cases as well.  It is an additional reason to confine the Privileges or Immunities Clause to the work it most clearly does: i.e. striking down state statutes that violate federal rights enumerated in the Constitution.