The underused and overused privileges and immunities clause

Martin H. Redish, Brandon Johnson

Research output: Contribution to journalReview article

Abstract

In this Article, the authors argue that Article IV's Privileges and Immunities Clause has been seriously underused due to a series of puzzling and highly dubious Supreme Court decisions imposing artificial and counterproductive limitations on the Clause's reach. They urge that with the removal of these harmful and misguided doctrinal restrictions, the Clause would serve the important function it was intended to serve: the avoidance of interstate friction and the prevention of the degeneration of the nation's federal system. At the same time, the authors warn against the dangerous and unsupportable efforts by libertarian scholars to misuse the doctrine growing out of this Clause's interpretation to create a constitutional portal by which the Clause can be manipulated into a textual source of unenumerated individual rights that would seriously threaten core notions of American democracy. Careful examination of both the Clause's constitutional text and doctrine, as well as the relevant historical context, demonstrates that the libertarian approach unjustifiably transforms a structural provision designed to deal exclusively with issues of constitutional federalism into a sweeping judicial power to create individual rights found nowhere in the Constitution's text. It is, then, only by avoiding the doctrinal underuse and the scholarly overuse that the Privileges and Immunities Clause can serve the valuable structural role it was clearly intended to serve.

Original languageEnglish (US)
Pages (from-to)1535-1576
Number of pages42
JournalBoston University Law Review
Volume99
Issue number4
StatePublished - Jan 1 2019

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ASJC Scopus subject areas

  • Law

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