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This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.

This chapter provides an historical and theoretical overview of the conception of equality in state constitutional law. Equality is a principle that enjoys a long history in state constitutional law. Early state constitutions contained provisions mandating equal rights for all persons or prohibiting special privileges or immunities. Such provisions can be found in many state constitutions today. After the Civil War, a number of states also enacted constitutional provisions mandating equal protection of the laws. With the rise of the New Judicial Federalism, some states have created a conception of equality that transcends the federal model of equal protection. While the federal notion of equality has become relatively static, its state counterpart is dynamic and, hence, responsive to the evolving needs of a changing society. In recent years, it has been the state courts that have led the movement to recognize new rights by expanding the guarantee of equality.

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.

The immediate origins of the 1866 Act lie in the Thirteenth Amendment, but its content goes back to the Privileges and Immunities Clause in the original Constitution. The interpretation of that clause in the antebellum decision of Corfield v. Coryell offered a list of rights broadly similar to those protected by the act but was necessarily limited to rights already conferred by state law on state citizens. Under Dred Scott v. Sandford, African Americans were excluded from the coverage of the clause and all other federal protections of citizenship. Although the Thirteenth Amendment negated the practical effect of Dred Scott, it left to Congress the task of officially overruling the decision and bridging the gap between freedom and citizenship. As the 1866 Act bears witness, Congress took an active role from the very beginning in exercising its enforcement powers to determine the meaning and effect of the Thirteenth Amendment.

The Slaughterhouse Cases provided the Court with its first opportunity to interpret the recently ratified Fourteenth Amendment. Although the case did not attract the type of public attention characteristic of great cases, the justices clearly understood that they were deciding a case of monumental importance. Writing for the majority, Justice Miller rejected the contention that the Privileges or Immunities Clause of the Fourteenth Amendment protected the right to pursue a common calling. Justice Field dissenting disagreed vigorously. The chapter explains how the very momentousness of the case prompted the majority to minimize the Privileges or Immunities Clause which had been intended to be the very core of civil rights protection. It also traces the significant doctrinal impact of the case, which though heavily criticized, remains a solid precedent.

Chapter 5 examines the legal personalities of both CARICOM and the OECS (international and national). It highlights the treaty-making competences of the two regional organizations and their rights of active and passive legation. It examines the headquarters arrangements of CARICOM and the OECS, and compares their privileges and immunities regimes. It highlights the challenges raised by the use of diplomatic privileges and immunities by the OECS and by the non-ratification of agreements by CARICOM Member States. It examines the final provisions of the RTC and RTB, including those governing how the two treaties may enter into force, be amended or be subject to reservation. It looks at questions of accession and withdrawal, and the consequences of withdrawal. It highlights the requirement for transformation of decisions of organs in CARICOM.

The legal argumentation developed by the United Nations in relation to its privileges and immunities is almost exclusively developed outside the courtroom. Drawing examples in relation to the privileges and immunities applicable to the Organization itself, as well as to its officials, personnel, and contractors, this chapter distinguishes between the legal arguments developed by the United Nations to remind member states of their international obligations and the ones put forward to convince them of the need to adjust the existing legal framework. This chapter identifies the principle of necessity expressed in Article 105 of the Charter of the United Nations and the related Convention on the Privileges and Immunities of the United Nations as the two constants behind the legal argumentation developed by the Organization.

This chapter traces Hague’s appeal through the Third Circuit Court of Appeals into the U.S. Supreme Court under Chief Justice Charles Evans Hughes, showing how the Hughes court’s inner dynamics explain affirmation of the district court injunction. Observing flux in court personnel and law, the chapter shows that both courts embraced the contemporaneous civil liberties revolution by defending worker speech and assembly rights, but it reveals the Supreme Court as divided over constitutional logic. Justice Owen Roberts’s plurality opinion upheld speech and assembly rights under the Fourteenth Amendment privileges and immunities clause, Justice Harlan Fiske Stone’s concurrence incorporated the First Amendment into the Fourteenth Amendment due-process clause, and dissenters rejected federal jurisdiction. The ruling reflected the contentious evolution of civil liberties jurisprudence, not antiboss or labor law politics.

This chapter is dedicated to the challenges which the VCDR, fifty years into its existence, faces in a world marked by a globalized economy and rapid technological developments. The author reflects on new diplomatic processes which have emerged through the creation of governmental and non-governmental institutions and on notions such as collaborative, public, and cultural diplomacy which have challenged accepted understandings of the role and functions of traditional diplomacy. Barker also explores the fact that international law itself is changing from a system regulating co-existing sovereignties to a possibly fragmented discourse of complex frameworks which themselves challenge the sovereignty paradigm. In this context, he investigates the continued relevance and purpose of the VCDR and gives particular focus to existing mechanisms within the Convention that allow for modified and developed interpretations of the Convention to take account of the changing international world in which contemporary diplomacy operates.

It is important for the federal courts, and, in particular, the U.S. Supreme Court, to promote preparation for civic participation because of the pre-eminent moral and political standing that the federal constitution has in our culture. A strong pronouncement on the schools’ constitutional responsibility to prepare students for civic participation by the U.S. Supreme Court would go far toward motivating states and school systems to adopt major reforms in this area, while leaving the details of standards and implementations to the local policymakers. The federal courts, like the state courts, might also consider more specific remedial orders in certain circumstances. The chapter proposes legal strategies for responding to the Supreme Court’s indication in Rodriguez that it might consider establishing a federal right to effective civic preparation as a fundamental interest for equal protection purposes in a future case. It also discusses additional legal theories based on the privileges and immunities clause of the Fourteenth Amendment and the republican guarantee clause of article four of the U.S. Constitution.

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.

This chapter addresses the nature of international organizations and the purpose of their immunity. International organizations are created by their constituent member States to discharge vital functions and responsibilities on their behalf, and in some cases on behalf of the world community as a whole. They are established to offer cooperative and concerted approaches to common challenges and some problems that have the best chance of being solved through multilateral actions. Although States remain the primary actors in international relations, international organizations have joined the arena to provide the platform that enables different States to work together. International cooperation by States has become a necessity. To achieve their objectives, international organizations are granted certain privileges and immunities by their member States: in particular, jurisdictional immunity, which protects them from legal process. It is well settled that international organizations require those immunities that are necessary for them to fulfill their functions.

Article 291 EC The Union shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol of 8 April 1965 on the privileges and immunities of the European Union. The same shall apply to the European Central Bank and the European Investment Bank.

This chapter traces Elizabeth Cady Stanton’s earliest legal advocacy for marital property rights. It discusses Stanton’s deconstruction and critique of coverture, the law of legal disability and loss of rights for married women. It begins by outlining the women’s rights Declaration of Sentiments and Stanton’s work for reform of married women’s property acts and dower. Then, by exploring property as citizenship right, it identifies Stanton’s constitutional thought on the privileges and immunities clause of the Fourteenth Amendment.

This chapter discusses the federal framework and the impact of the U.S. Constitution on choice of law. It examines the allocation of lawmaking powers between the federal and state governments and the limitations imposed on state choice-of-law decisions by the Full Faith and Credit, Due Process, and Privileges and Immunities clauses of the Constitution, and the federal government’s power over foreign affairs, including the division of authority between the executive and judicial branches. After discussing each of these four principal clauses in detail, the chapter concludes with a brief discussion of the procedural and substantive law federal courts apply in cases of diversity jurisdiction.

This chapter considers the nature, remit, and functioning of review mechanisms established by international organizations to address grievances concerning their conduct. Do these mechanisms serve as adequate modes of redress for injured individuals and can they result in effective reparation? The practice is diverse, although the mechanisms that address claims from individuals not connected to the organization remain few. A review of the most relevant mechanisms reveals different understandings of, and degrees of adherence to, external rules and principles. For the most part, there has been little regard to the procedural and substantive rights of affected individuals explored in previous chapters. But if reparation is a right belonging to victims or even an obligation owed to them as the ultimate beneficiaries, international organizations cannot restrict their procedures and claimants’ entitlements in the pursuit of their own understanding of rules and obligations.

Article 108 EC When exercising the powers and carrying out the tasks and duties conferred upon them by the Treaties and the Statute of the ESCB and of the ECB, neither the European Central Bank, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions from Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The Union institutions, bodies, offices or agencies and the governments of the Member States undertake to respect this principle and not to seek to influence the members of the decision-making bodies of the European Central Bank or of the national central banks in the performance of their tasks.