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berth in the name of majoritarian democracy, "states'

rights," and "judicial restraint."

Although intense litigation under the amendment should

not surprise, what is surprising is that most of it has

taken place not under the Privileges or Immunities Clause,

which was meant to be the principal font of individual

rights, but under the Due Process and Equal Protection

Clauses.  Using the Due Process Clause, judges have

"incorporated" most of the Bill of Rights under the

Fourteenth Amendment, then applied those protections

against state actions to find the actions unconstitutional.

More recently, judges have used the Equal Protection

Clause to the same effect and others, raising all manner

of questions about the scope of their authority and the

grounds of their reasoning.  In all of this, however, nei-

ther liberals nor conservatives have given more than a

moment's attention to the cardinal clause of the

Fourteenth Amendment, the Privileges or Immunities Clause,

which remains uncited, unlitigated, uncommented upon--in a

word, unnoticed.  Whole chapters of modern constitutional

law casebooks are devoted to due process and equal protec-

tion while privileges or immunities are dismissed in a few

pages at most.  Like the bark of the hound in the canon of

Sherlock Holmes, what is most striking about the

Privileges or Immunities Clause in the canon of consti-

tutional law is its absence.

Every lawyer knows why the Privileges or Immunities

Clause is absent from modern constitutional law, despite

its manifest presence in the Fourteenth Amendment: 125

years ago, in 1873, five years after the amendment was

ratified, a bitterly divided Supreme Court, by a vote of

five to four, effectively removed the clause from the

Constitution.  That decision, reached in the infamous

Slaughterhouse Cases,1 rendered the clause ever after "a

vain and idle enactment"2--precisely as predicted by the

Slaughterhouse dissenters.  Indeed, so profound was the

effect of the Court's decision that in the entire history

of Fourteenth Amendment jurisprudence only one state law

has ever been held to be in violation of the Privileges or

Immunities Clause--and that decision was overturned just a

few years after it was announced.3   In a single stroke, the

Court had turned the centerpiece of the Fourteenth

Amendment into "one of those blessed constitutional provi-

sions that by being ignored has not caused a single bit of

trouble"4--the view of Professor Lino Graglia of the

University of Texas, one of the leading conservative crit-

ics today of the Court's "activism" in overseeing state

power.