PRIVILEGES AND IMMUNITIES, AND FIRST PRINCIPLES: WHERE DO BARNETT AND BERNICK LEAD US?

• Published in: Texas review of law & politics Vol. 29; no. 1; pp. 183 - 210
• Main Author: Arkes, Hadley
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01.10.2024
• Subjects: Due process of law; Equal rights; Fines & penalties; Jurisprudence; Legislation; Legislatures; Natural law; Poultry; Principles; Privileges & immunities; Theft
• ISSN: 1098-4577; 1942-8618

Few books have done quite as much to explore the varieties of meanings that have been attached to those terms so key to our jurisprudence as Privileges and Immunities of Citizens, Due Process of Law, and Equal Protection of the Laws. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. The people would be made to say to the two houses [of the legislature]: 'You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. Marshall made his point in deliberating over the power of the federal government to establish a national bank, and he might have had in mind Alexander Hamilton making the point forcefully in his memorandum to George Washington on the subject: that the federal government might aptly create a corporation for the sake of managing the currency, but it could not be warranted in forming a corporation to govern the police in Philadelphia-for the national government has no authority over the police in Philadelphia.7 But the matter may be most neatly captured in Chief Justice Stone's concurrence in the famous Skinner case on sterilization.8 The law of Oklahoma provided for sterilization after a record of recidivism seemed to disclose an uncontrollable passion for crimes of moral turpitude.