ARTICLE: Reconstructing the Privileges or Immunities Clause. Skip over navigation
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Copyright 1992 Yale Law Journal Company.

Yale Law Journal

ARTICLE: Reconstructing the Privileges or Immunities Clause.

May, 1992

101 Yale L.J. 1385

Author

John Harrison +

Excerpt

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. 1

On June 8, 1866, as the Senate prepared to take its final vote on the proposed Fourteenth Amendment to the Constitution, Senator Reverdy Johnson of Maryland moved to delete the first part of the second sentence, the Privileges or Immunities Clause. He made the motion "simply because [he did] not understand what would be the effect of that." 2 The motion was rejected without a recorded vote, and the Amendment passed with the clause intact. 3

As usual, however, Reverdy Johnson had a point. 4 The clause mystifies us no less than it did him. 5 Judging by the Supreme Court's case law, one would think that Johnson's motion had passed. No important line of decision rests on the clause; every student of constitutional law quickly learns that it was virtually read out of the document by the Slaughter-House Cases. 6 The disappearance of the Privileges or Immunities Clause, of course, has not kept Section 1 of the Fourteenth Amendment from becoming the principal font ...
 
 
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