Of Citizens and Persons: Reconstruction the Privileges and Immunities Clause of Fourteenth Amendment
The purpose of this Symposium is to examine the decision of the United States Supreme Court in Lochner v. New York, on the occasion of its 100-year anniversary. I propose to undertake that inquiry in an indirect fashion, asking how best to interpret the Fourteenth Amendment on the assumption that the Privileges or Immunities Clause, now lost to obscurity, had a central role to play in its operation. Accordingly, this first section of this paper gives a brief statement of the lineal connection between the Slaughter-House Cases and the Lochner decision. Section two then reinterprets the Fourteenth Amendment on the ground that the distinction between the "citizens" protected by the Privileges or Immunities Clause and the "persons" protected by both the Due Process and the Equal Protection Clauses is critical to the entire enterprise. Section three then looks at some critical constitutional areas that might have to be substantially revamped, be it for better or for worse, once the proper structure of the Fourteenth Amendment is elucidated. The last section draws a few general inferences for the difficult task of constitutional interpretation.
