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Privileges or Immunities

by Raoul Berger

EDITOR’S NOTE: The following is an excerpt of the book Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).

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No State shall . . . abridge the privileges or immunities of citizens of the United States

The “privileges or immunities” clause was the central provision of the Amendment’s §1, and the key to its meaning is furnished by the immediately preceding Civil Rights Act of 1866,1 which, all are agreed, it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their “life, liberty, and property” —no more. For the framers those words did not have the sprawling connotations later given them by the Court but, instead, restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to “fundamental rights,” “life, liberty, and property,” and a few historical comments will show the ties between the two.

At Locke’s hands, said Edward S. Corwin, natural law dissolves “into the rights of ‘life, liberty, and estate,’ ” a derivation noted by Francis Bacon. The trinity was reiterated by Sir Matthew Hale2 and sharply etched by Blackstone in his chapter on “The Absolute Rights of Individuals”:

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