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The conservative claim--that the meaning of the Privi-

leges or Immunities Clause is unknown and unknowable--has

its origins in the midcentury work of Charles Fairman.12

Attempting to show that the clause was not meant to

incorporate the Bill of Rights against the states, Fairman

claimed to have discovered that it had no meaning at all;

thus, he cites Congressman George S. Boutwell of

Massachusetts, a member of the joint committee that draft-

ed the amendment, as claiming that the amendment's princi-

pal author, Ohio congressman John Bingham, inserted the

clause because "its euphony and indefiniteness of meaning

were a charm to him."13   Conservatives thus dismiss the

clause by dismissing John Bingham--Berger calling him "mud-

dled" and "inept,"14 Graglia saying that he used language

solely for the purpose of "venting vaporous sentiment,"15

and Bork contenting himself with repeating Fairman's

claim.16   Those conservatives do not explain, of course,

how Congress came to be led by such a fool in so signifi-

cant a matter as the drafting of the Fourteenth Amendment.

Graglia says that happened "for reasons as to which we

have no information."17   Professing such ignorance, Bork

can conclude, apparently without irony, that the judicial

evisceration of the clause in Slaughterhouse was a "victo-

ry for judicial moderation."18

Yet even if Bingham can be dismissed as a man with a

"peculiar mode of thought,"19 which the evidence hardly

compels,20 by no means does it follow that the instrument

he drafted is meaningless.  To discern the meaning, howev-

er, we have to ask not simply what the author may have had

in mind but what those who passed and ratified the clause

may have understood it to mean.  Was there a generally

accepted meaning for "privileges or immunities" at the

time of the adoption of the Fourteenth Amendment?  When

that question is better answered than it is by conserva-

tives--to say nothing of modern liberals, who too often

turn broadly worded clauses into open-ended warrants for

judicial lawmaking--it turns out that the loss of the

Privileges or Immunities Clause is more than surprising:

it is deeply troubling.  For not only was the clause meant

to be the centerpiece of section one of the Fourteenth

Amendment; more important, it was meant to be a reflection

of the underlying theory of the original Constitution and

a link to the natural rights principles of the Declaration

of Independence that form the intellectual foundation of

American constitutionalism.  Thus, the rejection of the

Privileges or Immunities Clause represents a rejection of

that moral, political, and legal heritage.

To better appreciate the significance of that rejec-

tion, and to urge that the Privileges or Immunities Clause