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26 Geo. Mason L. Rev. 1059 (2018-2019)
Privileges and/Or Immunities in State Constitutions before the Fourteenth Amendment

handle is hein.journals/gmlr26 and id is 1113 raw text is: 2019] PRIVILEGES AND/OR IMMUNITIES IN STATE CONSTITUTIONS BEFORE THE FOURTEENTH AMENDMENT Anthony B. Sanders* INTRODUCTION When Congress and the States constitutionalized privileges or immun- ities in the Fourteenth Amendment, it was only the second time drafters of the U.S. Constitution had placed the words privileges and immunities together.' But Americans had actually constitutionalized that language- sometimes with an or in the middle, sometimes with an and, sometimes with just a comma, and sometimes in a different order-more than two dozen times before.2 While scholars continue to disagree on the meaning of the Fourteenth Amendment's reference to privileges or immunities of citizens of the United States, the history of these precursor constitutional phrases is largely untold. This Article addresses that silence, reporting on how Ameri- cans used the grand conjunction of these two words in their constitutions be- fore the Reconstruction Congress placed them in Section One of the Four- teenth Amendment. This is not to say that others have not examined the phrase privileges and/or immunities in pre-Fourteenth Amendment documents. Many have reviewed its use in the all-important Article IV, Section 2,3 in treaties,4 in the * Senior Attorney, Institute for Justice (IJ). J.D. 2004, University of Minnesota; M.A. 2000, Uni- versity of Wisconsin-Madison; B.A. 1998, Hamline University. A great many people provided very help- ful feedback for the creation of this Article. At the risk of leaving many of them out, they include Evan Bernick, Josh Blackman, David Bernstein, Cynthia Crawford, Sheldon Gilbert, Chris Green, Carissa Byrne Hessick, Ken Kersch, JoAnn Koob, Bob McNamara, Ricard Pochkhanawala, Logan Sawyer, JP Schnapper-Casteras, Ilya Shapiro, David Upham, Jonathan Urick, Ted White, Ilan Wurman, and Rebecca Zietlow. Thanks to all of them, and to my colleagues at IJ who support my voyages in uncharted state constitutions. And thanks to Amy, Geneva, and Everett who provide me innumerable privileges and im- munities every day. 1 The first had been when the Constitutional Convention adopted the same language in Article IV, save for an and instead of an or in the middle. Compare U.S. CONST. art. IV, § 2, cl. 1, with id. amend. XIV, § 1. 2 See infra note 25. 3 See, e.g., Robert G. Natelson, The Original Meaning ofthe Privileges and Immunities Clause, 43 GA. L. REV. 1117, 1148-88 (2009); Douglas G. Smith, The Privileges and Immunities Clause ofArticle 1V Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 SAN DIEGO L. REv. 809, 831-57 (1997). 4 See, e.g., Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities, 11 U. PA. J. CONST. L. 1295, 1298 n.13 (2009); Arnold T. Guminski, The Rights, Privileges, and Immunities 1059