June 28, 2010

RANDY BARNETT: “Today, the Privileges or Immunities Clause has risen from the grave. Only a plurality was willing to use the Due Process Clause to apply an individual right to the states. The crucial fifth vote was provided by Justice Thomas’ extensive fifty-six-page originalist opinion that rested solely on the Privileges or Immunities Clause. Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas’ analysis, which now stands uncontradicted in the Supreme Court Reports. Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated. Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the ‘lost’ Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment.”

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