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be revived, this study will examine briefly the historical

and theoretical background of the clause, the meaning of

the clause in the Fourteenth Amendment, the arguments in

the Slaughterhouse Cases, and the legal aftermath of

Slaughterhouse.  The study will conclude by showing how a

revitalized clause, especially in the area of civil

rights, could restore the Fourteenth Amendment to its

original purpose--to serve as a principled barrier against

overweening state government.

In addition to protecting individuals against state

actions, a revived Privileges or Immunities Clause would

shed light on the modern debate over "judicial activism,"

much of which springs from adjudication involving the

Fourteenth Amendment.  In that connection, in fact, Judge

Clarence Thomas stated well one of the principal functions

of the clause--to protect against "the willfulness of both

run-amok majorities and run-amok judges."21   Liberals today

are concerned largely about the former, conservatives

largely about the latter.  Both sides are right to be con-

cerned.  Their differing concerns will not be addressed

adequately, however, until we get to the root of the mat-

ter, to the classical theory of rights that charts a prin-

cipled course between them, not through the Due Process or

Equal Protection Clauses but through the Privileges or

Immunities Clause.

The Origins of the Privileges or Immunities Clause

Debates in Congress surrounding passage of the Four-

teenth Amendment and in the states surrounding ratification

make it clear that the Privileges or Immunities Clause was

linked unequivocally to both the Privileges and Immunities

Clause of article IV of the Constitution and the construc-

tion of that clause by Justice Bushrod Washington in Cor-

field v. Coryell (1823),22 the leading case on the subject.

And article IV's Privileges and Immunities Clause was

linked in turn to the similar but more specific clause

included in the Articles of Confederation.  Thus under-

stood, the inclusion of the Privileges and Immunities

Clause in article IV occasioned little recorded debate in

the Constitutional Convention of 1787 and only passing

mention in the Federalist Papers.  That mention, however,

was not insignificant: Alexander Hamilton called the

Privileges and Immunities Clause "fundamental"--going so

far as to say that it was "the basis of the Union."23   What

is more, he made it clear in that brief discussion that,

for reasons of impartiality, it is the federal judiciary

that must interpret and apply the clause.