The Privilege or Immunities Clause, Originalism, and Gender Equality

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

In 1873, in The Slaughter-House Cases and Bradwell v. Illinois, the Supreme Court took a sledgehammer to the idea that the Privileges or Immunities Clause of the Fourteenth Amendment provided substantive rights to citizens. The majorities in these cases limited those rights to a short list, such as the right to go to an American embassy while in a foreign country, for example, or the right to be safe on the high seas. Slaughter-House has been criticized since the day it came down, but the Court soon developed its theory of Substantive Due Process, which did much of the work the Privileges or Immunities Clause was intended to do, and the world moved on.

But the dissenting justices in Slaughter-House, Justice Bushrod Washington’s 1823 opinion in Corfield v. Coryell, and contemporary originalist scholars including Professors Randy Barnett and Christopher Green, all have an originalist conception of the Privileges or Immunities Clause, viewing the Clause as providing a basket of basic rights to all citizens. This basket is big, and includes the right to practice a lawful profession. As such, the Clause has significant, practical contemporary implications, demonstrated by Slaughter-House’s companion case, Bradwell v. Illinois.

When the state of Illinois refused to admit Myra Bradwell to the bar, she took her case to the Supreme Court on the theory that she had the right to practice law under the Fourteenth Amendment. She lost, but her theory, and mine, is consistent with that adopted by the concurring Justices and implied by Chief Justice Salmon Chase’s dissent in that case (Chief Justice Chase was near death and dissented without writing an opinion). The concurring Justices, all of whom dissented in Slaughter-House, agreed that the Privileges or Immunities Clause of the Fourteenth Amendment provided substantive rights to citizens. They decided the case on the facts, holding that women as a matter of fact were incapable of practicing law.

Because of this, their conception of the Clause provides a legal basis for originalist gender equality. If those Justices had known that women do, actually, have the capacity to practice law, they would not have held that Myra Bradwell had no such right. She did, and women today do. By contrast, children, who are still citizens, do lack certain capacities, and so it is consistent to deny law licenses to small children without violating the Fourteenth Amendment. Because the Clause guarantees rights, and because the Clause guarantees such rights to every citizen (and not just every male citizen, as in the Fifteenth Amendment), those rights that are guaranteed extend to adult men and women equally.

This set of rights forms the foundation of a new gender jurisprudence. The first question would no longer rely on gender-based classifications, as it does in gender cases today. Rather, the fundamental question is whether a citizen has been deprived of a basic right, followed by whether there is a specific factual basis for such a deprivation. This evaluation is both far more expansive and less expansive than how gender cases are currently adjudicated. There are significantly more rights, and those rights are affirmatively granted. But, outside of that extensive group of rights, there is no across-the-board equality mandate. If the right is not there, then unfair allocation is not unconstitutional. This is important, because if the originalist analysis led to nothing more than a thumbs-up to the status quo, then as a functional matter this debate would be meaningless. And it’s not. Adopting the correct textual meaning of the Clause would mean a shift from how contemporary gender jurisprudence operates, with significant consequences both for the Court and for all “citizens of the United States,” regardless of gender.

For more on this, see my Note entitled The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination, which is forthcoming in the Georgetown Journal of Law & Public Policy and is up on SSRN here.

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