Inkblots: How the ninth amendment and the privileges or immunities clause protect unenumerated constitutional rights

Southern California Law Review

Volumn 80, Issue 6, 2007, Pages 1383-1431

  Casazza, Kyle Alexander ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 36749051748     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (185)

1. Russell Hittinger, Natural Law and Virtue: Theories at Cross Purposes, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 42, 42 (Robert George ed., 1992) (emphasis added),
2. Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. 305, 321(1987).
3. Id.
4. Id. (quoting 1 ANNALS OF CONG. 454 (J. Gales & W. Seaton eds., 1836) (remarks of James Madison)).
5. Mark C. Niles, Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights, 48 UCLA L. REV. 85, 97-98 (2000)
6. (quoting Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 101st Cong. 117 (1989)
7. (testimony of Robert Bork), reprinted in 2 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 441 (Randy E. Barnett ed., 1993)).
8. ROBERT H. BORK, THE TEMPTING OF AMERICA 166 (1990). See infra note 23 and accompanying text.
9. See Sol Wachtler, Judging the Ninth Amendment, 59 FORDHAM L. REV. 597 (1991); Massey, supra note 2, at 312-13.
10. See Andrzej Rapaczynski, The Ninth Amendment and the Unwritten Constitution: The Problems of Constitutional Interpretation, 64 CHI.-KENT L. REV. 177, 183 (1988).
11. See id. at 138-39.
12. Id. at 141.
13. Professor Niles points to Bowers v. Hardwick, 478 U.S. 186 (1986),
14. as one example. Niles, supra note 5, at 141.
15. Bowers has since been overturned. Lawrence v. Texas, 539 U.S. 558 (2003).
16. U.S. CONST, amend. IX.
17. U.S. CONST, amend. XIV, §1.
18. For more on the Ninth Amendment and the social contract, see Thomas B. McAffee, The Bill of Rights, Social Contract Theory, And The Rights "Retained" By The People, 16 S. III. U. L.J. 267 (1991-92).
19. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
20. See Saenz v. Roe, 526 U.S. 489 (1999).
21. See sources cited infra notes 177-87.
22. Saenz, 526 U.S. at 528 (Thomas, J., dissenting).
23. THE WHO, Won't Get Fooled Again, on WHO'S NEXT (MCA Records 1971).
24. Rapaczynski, supra note 8, at 209-10.
25. U.S. CONST, amend. IX. The amendment's "terse announcement. . . certainly looks like news, and begs for an explanation." Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What Can You Do with the Ninth Amendment?, 64 CHI.-KENT L. REV. 239, 239(1988).
26. E.g., Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1 (1988) [hereinafter Reconceiving].
27. See also Christopher J. Schmidt, Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due Process, 32 U. BALT. L. REV. 169, 179-80 ("Allowing the Ninth Amendment to be the sole arbiter of unenumerated rights issues is not legislating from the bench, it is the constitutional commandment of its text.").
28. See Rapaczynski, supra note 8, at 178-79.
29. Schmidt, supra note 21, at 197. For example, judicial determinations are necessary for enforcement of the First, Fourth, and Fifth Amendments. Id.
30. Niles, supra note 5, at 85, 88-89. "Mention the Ninth Amendment to an attorney and you are bound to elicit a confused and somewhat embarrassed frown." Id. at 87.
31. Id. at 90.
32. See id. at 98-99. Other amendments present similar challenges, but they "play a major role in resolving real legal disputes while the Ninth Amendment does not." Id. at 101.
33. Massey, supra note 2, at 319.
34. Griswold v. Connecticut, 381 U.S. 479 (1965).
35. Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223, 224(1983).
36. Griswold, 381 U.S. at 484.
37. Id. at 488 (Goldberg, J., concurring).
38. Caplan, supra note 29, at 225.
39. For a detailed survey of historical evidence and the meaning of the Ninth Amendment, see Randy E. Bamett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1, 21-76 (2006) [hereinafter It Means What It Says] (reviewing thirteen founding era sources for insight on the meaning of the Ninth Amendment's plain text).
40. See Reconceiving, supra note 21, at 2 ("As the Framer who first conceived of the Ninth amendment, Madison's conception of constitutional rights is the most pertinent to an understanding of the Ninth Amenmdent's intended function."). See also Niles, supra note 5, at 117-23.
41. See, e.g., Schmidt, supra note 21, at 203 ("Scholars. . . unsurprisingly reach conflicting historical conclusions surrounding the proposal and ratification of the Ninth Amendment.").
42. Reconceiving, supra note 21, at 3. See also Schmidt, supra note 21, at 199 ("[S]ince the amendment is the work of Madison, his explanation of its intent and meaning should control.").
43. Niles, supra note 5, at 117. For more background on these writings of Locke and their influence on the Ninth Amendment's framers, see id. at 108-71; Caplan, supra note 29, at 230-38.
44. See Reconceiving, supra note 21, at 17.
45. Id. at 3.
46. Id.
47. Id. "In [Madison's] speech to the House, he states that 'the legislative [branch]. . . is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper.'" Id. (quoting 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 454 (J. Gales & W, Seaton eds., 1834) (speech of Rep. J, Madison)).
48. See Reconceiving, supra note 21, at 17-19.
49. See id.
50. See, e.g., Schmidt, supra note 21, at 192 (originalists "skip the text of [the Ninth Amendment] and jump to the secondary components of legal analysis to find their answer").
51. Id. (quoting Printz v. United States, 521 U.S. 898, 905 (1997)).
52. Schmidt, supra note 21, at 192-93.
53. Id. at 193-94.
54. Id. at 206. For a detailed look at the history of the Ninth Amendment see Caplan, supra note 29.
55. Griswold v. Connecticut, 381 U.S. 479, 491 (1965) (Goldberg, J., concurring) (quoting Myers v. United States, 272 U.S. 52, 151 (1926) (emphasis added). See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.").
56. See, e.g., Reconceiving, supra note 21, at 4-9 (describing the Ninth and Tenth Amendments under a "rights-powers conception of constitutional rights"); Rapacyznski, supra note 8, at 188-90;
57. Sager, supra note 20, at 242-43 ("There is symmetry here."). For an application of the Tenth Amendment as a fundamental rights guarantee,
58. see Thomas B. McAffee, Federalism and the Protection of Rights: The Modern Ninth Amendment's Spreading Confusion, 1996 B.Y.U. L. REV. 351, 356-58.
59. United Pub. Workers v. Mitchell, 330 U.S. 75, 95-96 (1947).
60. Reconceiving, supra note 21, at 5.
61. See also Massey, supra note 2, at 310-11.
62. United Pub. Workers, 330 U.S. at 95-96.
63. Reconceiving, supra note 21, at 5.
64. Id.
65. Id.
66. Id.
67. Id. at 4.
68. See also Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331, 394-401(2004).
69. Reconceiving, supra note 21, at 6.
70. Under this theory, the Ninth Amendment does no more than the Tenth and "thus requires us to treat the ninth amendment as a colossally bad first draft of the tenth." See Sager, supra note 20, at 246. Sager notes that "[t]his point, of course, has been made before." Id. at 246 n.l 3 (citations omitted).
71. Reconceiving, supra note 21, at 6. The opinion in United Public Workers illustrates this confusion. Id. While Justice Reed uses the phrase "rights reserved by the Ninth and Tenth Amendments," United Public Workers v. Mitchell, 330 U.S. 75, 96 (1947), "[t]he Tenth Amendment does not speak of rights, of course, but of reserved 'powers.'" Bamett, supra note 21, at 6. Accord Caplan, supra note 29, at 262 ("The ninth amendment is not redundant with the tenth amendment.").
72. Reconceiving, supra note 21, at 6.
73. Id.
74. Id.
75. See id. at 8. The rights-powers conception is also inconsistent with other constitutional guarantees. See id. at 9-11.
76. Wachtler, supra note 7, at 611. In a recent article, Professor Bamett engages in a much more detailed classification of originalist Ninth Amendment theories in circulation. See It Means What It Says, supra note 33, at 10-21. He identifies (1) "the state law rights model," (2) the "Residual Rights Model," (3) the "Individual Natural Rights Model," (4) the "Collective Rights Model," and (5) the "Federalism Model." Id. His classifications are not necessary for the scope of this Note, but should be a must-read for anyone interested in the topic.
77. Wachtler, supra note 7, at 612.
78. Id. at 615. See also Massey, supra note 2, at 317-18 (discussing Raoul Berger's "contention] that ninth amendment rights are not judicially enforceable because they do not arise under the Constitution but find their source wholly outside the Constitution"); Sager, supra note 20, at 251-52 (summarizing what he calls the "Judicial Unenforceability Thesis").
79. See Massey, supra note 2, at 312. There is much variation within these basic categorizations, and in their most extreme reading, "[e]ach of these conceptions of the amendment's content is flawed." SeeW. at 312-13.
80. E.g., Caplan, supra note 29, at 259-65; Massey, supra note 2, at 323-29. "A second, and more radical, alternative is to conclude that the framers intended to permit the states to continue to develop sources of ninth amendment rights after the Constitution's adoption." Id. at 325 (emphasis added).
81. Michael Conant, Antimonopoly Tradition Under the Ninth and Fourteenth Amendments: Slaughter-House Cases Re-examined, 31 EMORY L.J. 785, 789 (1982).
82. See McAffee, supra note 50, at 373-74 ("[L]inking the federal system to fundamental rights is the most novel and perhaps least plausible of [Ninth Amendment theories]."). "[T]he First Congress would have viewed a 'reverse preemption' purpose [of the Ninth Amendment]. . . as a rule lacking any sort of meaningful limits." Id. at 384. Massey identifies this Supremacy Clause problem, but insists the Ninth Amendment would transform these state rights into federal rights. See Massey, supra note 2, at 323. Further, limiting the protections to those laws "in existence at the time of the Constitution's adoption avoids the mischief inherent in splitting supremacy clause hairs." Id. at 327.
83. See Massey, supra note 2, at 322 ("[T]he ninth amendment was intended to do more than secure state-based unenumerated rights from federal invasion; it was also to serve as a barrier to encroachment upon natural rights retained by the people.").
84. Caplan, supra note 29, at 262. See Massey, supra note 2, at 327.
85. Baby Ninths are "Ninth Amendment analogues in state constitutions." John Choon Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 968 (1993). Professor Yoo concludes that their "mere presence . . . in state constitutions shows an understanding of the [Ninth] Amendment's language as a declaration in favor of rights against the government." Id. at 1009. While not all states had these provisions, one commentator has suggested that federal Ninth Amendment positive rights "are defined by the pre-1788 organic law of all the original states, taken together," and would be "identical for all citizens, whatever their state citizenship." Massey, supra note 2, at 327. With this in mind, we could consider the Ninth Amendment as a counterpart to the Privileges and Immunities Clause - a suggestion beyond the scope of this Note.
86. Robert Bork's views on the Ninth Amendment might even be subject to this problem. See Wachtler, supra note 7, at 607. See also Massey, supra note 2, at 323 (noting that "judicial enforcement of reserved natural rights [as opposed to positive rights] implicates precisely these concerns [of amorphousness and value judgments]").
87. Massey, supra note 2, at 312-15. For some of these theories, see id. at 312 n.32.
88. Id. at 313-14.
89. See id. at 314-15. "Lockean thought was the dominant political theory at the time of the Constitution's adoption." Id. at 316.
90. U.S. CONST, amend. IX.
91. See, e.g., Massey, supra note 2, at 329-31.
92. Id. at 330. See also Niles, supra note 5, at 117 ("The relevant statements of James Madison .,. make clear that the retained rights . . . are the same Lockean rights to self-determination that are retained by the people when they agree to the formation of civil government.").
93. See Massey, supra note 2, at 329-31.
94. Id. at 330. "Since individuals lack private-law means of prohibiting private behavior that is not forcibly or deceitfully intrusive upon others, the state is similarly lacking in power." Id. at 343.
95. Niles, supra note 2, at 123. This does not necessarily cut one way or the other in the abortion debate. For example, Blackstone suggests that "[a]n infant in ventre statute mere, or in the mother's womb, is supposed in law to be bom for many purposes." WILLIAM BLACKSTONE, 1 COMMENTARIES 126, available at http://www.yale.edu/lawweb/avalon/blackstone/bklchl.htm (emphasis added) ("f' changed to "s" for easier reading throughout). The precise point at which private rights intersect with public interests will often not be easy, but this alone should not provide an excuse for reexamination of unenumerated rights jurisprudence. For a brief discussion of the Court's handling of the public/private distinction in the First Amendment context, see sources cited infra note 94.
96. Niles, supra note 5, at 123-24.
97. Massey, supra note 2, at 331, See also Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 777 n.5 (1986) (Stevens, J., concurring) ("[T]he concept of privacy embodies the 'moral fact that a person belongs to himself and not others nor to society as a whole.'") (quoting Fried, Correspondence, 6 PHIL. & PUB. AFF. 288-89 (1977)).
98. Niles, supra note 5, at 123. For a look at how Lochner and Bowers might have been decided under Niles's framework see id. at 144-56.
99. Id. at 123.
100. Id.
101. Id. at 124.
102. Niles, supra note 5, at 128. But see Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 758 (1989) ("The minute someone starts defending her actions against a storm of protest with the claim she is only affecting herself, we may be certain that the opposite is true."). For Rubenfeld's discussion on John Stuart Mill's "self-regarding act" and "the harm principle" see id. at 756-61.
103. Niles, supra note 5, at 128. In Stanley v. Georgia, 394 U.S. 557 (1969), the Court invalidated a law against private possession of obscene materials. See Niles, supra note 5, at 128-31. "Though Stanley and similar cases are insufficient to conclusively resolve the difficulties in determining at exactly what point the public/private line should be drawn in every case, this realization is not fatal to the development of this jurisprudence." Niles, supra note 5, at 132. Further, it is unclear whether, under Niles's approach, the facts of Stanley itself would be more properly handled under a First or Ninth Amendment analysis. As the case involved possession, as opposed to expression, perhaps Ninth Amendment adjudication would be proper.
104. Stanley, 394 U.S. at 564. Niles's examination of Stanley, Lochner, and Bowers, under his framework assumes that the Ninth Amendment would be incorporated against the states. This is a matter of some controversy. See infra text accompanying notes 310-14.
105. Niles, supra note 5, at 130.
106. Id.
107. Id. In Stanley, infringement of this zone was "the real violation of the First Amendment and 'our whole constitutional heritage'. . . ." Id. (quoting Stanley, 394 U.S. at 565).
108. Id. at 131.
109. Id. "The right to engage freely in private, consensual sex is a paradigmatic natural right." Massey, supra note 2, at 340. Privacy cases have largely "gravitate[d] around sexuality." Rubenfeld, supra note 92, at 744.
110. Niles, supra note 5, at 134. The Government's ability to impose moral codes has been more recently called into question under the current unenumerated rights framework. See Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) ("This effectively decrees the end of all morals legislation."). But see Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 819 n.17 (11th Cir, 2004) (noting the Supreme Court's pre-Lawrence conclusion that "there is not only a legitimate interest, but 'a substantial government interest in protecting order and morality,'" and that their "own recent precedent has unequivocally affirmed the furtherance of public morality as a legitimate state interest") (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991)); Kansas v. Limon, 83 P.3d 229, 236-37 (Kan. Ct. App. 2004) (noting the [sex-based] "classification [in Kansas's Romeo and Juliet law] is proper because it is rationally related to the purpose of protecting and preserving the traditional sexual mores of society"), rev'd, 122 P.3d 22 (Kan. 2005).
111. RANDY BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, 259-60 (2004) [hereinafter RESTORING THE LOST CONSTITUTION]; It Means What It Says, supra note 33, at 13-15.
112. It Means What It Says, supra note 33, at 13-15.
113. Id. at 15.
114. See id.
115. See Niles, supra note 5, at 126.
116. Id. at 142. Note that Professor Schmidt's proposal appears vulnerable to this charge. See infra text accompanying notes 122-33.
117. See Niles, supra note 5, at 142.
118. See id. This process can be "futile" and "counterproductive" for courts. Id. For more information on what makes a right "fundamental," see the material on Corfield, text accompanying infra notes 230-39.
119. For a brief survey of the Supreme Court's privacy cases see Rubenfeld, supra note 92, at 744-47.
120. Id. at 783.
121. W. at 784.
122. West Virginia State Bd. of Educ. v. Bamette, 319 U.S. 624, 649 (1943).
123. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
124. Rubenfeld, supra note 92, at 788 (discussing Roe v. Wade, 410 U.S. 113 (1973)).
125. Id. at 792-93.
126. See id. at 784-85, 792.
127. Id. at 804.
128. Id. at 805.
129. Laurence Tribe, Contrasting Constitutional Visions: Of Real and Unreal Differences, 22 HARV, C.R.-C.L. L. REV. 95, 107 (1987) (referring to the decision as "reducfing] the ninth amendment to a poor excuse for judicial legitimation of majoritarian morality").
130. See also Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL. L. REV. 297, 337 (1997)
131. (questioning the "constitutional legitimacy of a state interest in coercing sexual orthodoxy" in light of the Ninth Amendment); Timothy Sandefur, Liberal Originalism: A Past for the Future, 27 HARV. J.L. & PUB. POL'Y 489, 527 (2004) (noting that the Ninth Amendment left individuals "free to pursue happiness in ways that did not interfere with the rights of their neighbors").
132. See Schmidt, supra note 21, at 215-21.
133. Id. at 215. Obviously, existing substantive due process jurisprudence creates a large, practical hurdle. See id.
134. Id.
135. Id. If this can be shown, Schmidt refers to the once-unenumerated right as "enumerated," in the sense that it is protected by the text of the Ninth Amendment. See id.
136. Id.
137. Id. Under strict scrutiny, "the government has the burden of proving that the law in question is narrowly tailored to meet a compelling interest." Id. (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
138. AKHIL REED AMAR, THE BILL OF RIGHTS 155 (1998).
139. Schmidt, supra note 21, at 217. Schmidt mentions "fundamental rights" in this context because he believes the Privileges or Immunities Clause incorporates Ninth Amendment rights against the states. See id. at 217 n.348.
140. Id. at 217. For commentary on the use of texts other than the Constitution in Ninth Amendment analysis, see Rapaczynski, supra note 8, at 198-204; Wachtler, supra note 7, at 610-11. "[I]f judges can look to these sources, is there something that constrains them in the outcomes with which they should come up?" Rapaczynski, supra note 8, at 203.
141. Schmidt, supra note 21, at 217-18.
142. Id. at 217.
143. Id.
144. "There is a 'Privileges or Immunities' Clauses and there is a 'Privileges and Immunities' Clause." J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 HARV. J.L. & PUB. POL'Y 43 (1989).
145. See also U.S. CONST, art. IV, §2, cl. 1. Scholarly discussion often ignores the importance of the conjunction distinguishing the two.
146. U.S. CONST, amend. XIV, §1. Oddly enough, while the Privileges or Immunities Clause is perhaps "the most explicit and potent substantive limitation on state legislative powers," it has generally "proved too much for the Court to swallow." Rubenfeld, supra note 92, at 742.
147. '"In no part of the congressional debates on the Amendment is there greater evidence of vagueness and inconsistencies. . . ." Wilkinson, supra note 133, at 44 (quoting G. GüNTHER, CONSTITUTIONAL LAW 417 (11th ed. 1985)).
148. See also Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071, 1146 (2000) [hereinafter Historical Linguistics].
149. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). See also Bryan H. Wildenthal, Perspective: How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism, 23
150. T. JEFFERSON L. REV. 241, 241 (2001) [hereinafter How I Learned] (stating that modem criticisms of the case "have condemned it for so narrowly construing the Privileges and Immunities Clause of the Fourteenth Amendment as to render that provision a nullity").
151. E.g., How I Learned, supra note 136, at 246-48.
152. U.S. CONST, art. IV, §2, cl. 1.
153. The Clause was often referenced during congressional debate about the Fourteenth Amendment. See infra text accompanying notes 225-65.
154. See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1398 (1992) (quoting U.S. CONST, art. IV §2, cl. 1).
155. Toomer v. Witsell, 334 U.S. 385, 395-96 (1948). See also DE ROSA, THE NINTH AMENDMENT AND THE POLITICS OF CREATIVE JURISPRUDENCE 32-35 (1996).
156. Toomer, 334 U.S. at 396. See also Harrison, supra note 140, at 1398-400;
157. Wilkinson, supra note 133, at 43-44.
158. See Harrison, supra note 140, at 1398.
159. Trisha Olson, The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment, 48 ARK. L. REV. 347, 370 (1995).
160. See, e.g., William J. Rich, Privileges or Immunities; The Missing Link in Establishing Congressional Power to Abrogate State Eleventh Amendment Immunity, 28 HASTINGS CONST. L.Q. 235, 249 (2001) [hereinafter Missing Link] ("The line distinguishing rights of state citizens from rights of those who lacked state citizenship but whose privileges and immunities were protected was rarely discussed and remained amorphous.");
161. Laurence Tribe, Comment: Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 142-43 (1999);
162. Harrison, supra note 140, at 1454 ("[T]he case law is sketchy at best."); Wilkinson, supra note 133, at 44 .
163. Missing Link, supra note 145, at 249.
164. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). Slaughter-House is treated in more detail in Part III, infra.
165. Id. at 57-59.
166. Id. at 66. The other Fourteenth Amendment challenges were under the Equal Protection and Due Process Clauses.
167. Id.
168. Id. at 67.
169. Id. at 74.
170. Id. at 80 (emphasis added).
171. Id. at 79. The explicit text of Justice Miller's opinion might even support an expanded reading of the Privileges or Immunities Clause.
172. See William J. Rich, Taking Privileges or Immunities Seriously: A Call to Expand the Constitutional Canon, 87 MINN. L. REV. 153, 174-84 (2002)
173. [hereinafter Taking Privileges or Immunities Seriously].
174. Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867). Crandall identified a series of Constitutionally protected unenumerated rights of a United States citizen, including the rights to come to the seat of government to assert any claim he may have ... to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. ... a right of free access to [United States] sea-ports . . . subtreasuries . . . land offices . . . and the courts of justice in the several states ....
175. Id. at 44.
176. Slaughter-House, 83 U.S. at 79. For an interesting comparison between the majority opinion and Justice Bradley's dissent
177. see RESTORING THE LOST CONSTITUTION, supra note 101, at 196-203.
178. See Taking Privileges or immunities Seriously, supra note 153, at 195-96.
179. How I Learned, supra note 136, at 246. Much of this trouble had to do with the struggle over incorporating the Bill of Rights.
180. See id. at 247-48.
181. Taking Privileges or Immunities Seriously, supra note 153, at 188. For a more detailed summary of these,
182. see id. at 188-90.
183. Saenz v. Roe, 526 U.S. 489 (1999).
184. RESTORING THE LOST CONSTITUTION, supra note 101, at 320.
185. Professor John Eastman is among those "surprise[d]... that this revival of a long-dead constitutional provision came from ... Justice John Paul Stevens ... rather than Justice Thomas, whose trademark on the Court has been to revive the original understanding of long overlooked or misinterpreted clauses of the Constitution." John C. Eastman, Re-evaluating the Privileges or Immunities Clause, 6 CHAP. L. REV. 123, 123 (2003).