Does the Privileges or Immunities Clause of the Fourteenth Amendment incorporate the rights of citizens as listed in the bill of rights be protected from States? I am going to argue that it does based on historical evidence and the ever changing legal and scholarly interpretations of this Amendment.
In doing so, I will discuss the evolution of the "privileges or Immunities" Clause starting with what some would say is its origin in the comity clause in Article IV, Section II into what is known as the Incorporation Doctrine. I will show that the radical republicans who pushed this amendment, would at least in part support this doctrine because it was their original intent.
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So why does Raoul Berger so confidently assert that the p or i clause does not incorporate the bill of rights? Did you critique his work at all in your paper?
Berger equates the P and I clause in Article IV, Section 2 to the P or I clause in the 14th Amendment adding nothing more nothing less. Like before, it does nothing more than to protect the rights citizens from another state going into another. This would be important at the time the 14th was passed because Bingham wanted to protect white loyalists in the south and newly freed slaves in all the states. He also makes a logical point in a hypothetical argument. In the first clause of the first section of the 14th the word "citizen" is in the P or I clause. The citizen would be guarded by the BOR against all state and federal governments. Yet in section 1, clause 2, all "Persons" would have their life, liberty and property protected. Bergers argument is why would the 14th use two different tersm and give "Persons" more rights and the "Citizens". It makes no sense. Berger believes the 14th was needed to make the Civil Rights legal and enforceable.
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