Privileges or Immunities Clause - Redundancy Issues

Redundancy Issues

One of the arguments against interpreting the Privileges or Immunities Clause as a requirement that the states comply with the Bill of Rights has been that such an interpretation would render the Due Process Clause of the Fourteenth Amendment redundant, due to the Fifth Amendment's Due Process Clause. Although constitutional scholars such as Raoul Berger have raised this question, an answer has been detailed by Yale Law Professor Akhil Amar. According to Amar, the framers of the Fourteenth Amendment wanted to extend the due process right not only to citizens, but to all other persons as well, which required a separate Due Process Clause. Although the Fifth Amendment refers to "persons" and not "citizens" within its text, it would only be incorporated by the Privileges or Immunities Clause as to citizens.

Amar's argument would preclude extension of enumerated rights to non-citizens via the Equal Protection Clause. An alternative rationale for explicitly including the Due Process Clause in the Fourteenth Amendment is that the Privileges or Immunities Clause only forbids states from making or enforcing laws, and therefore does not bar states from harming people outside the legal process.

Another redundancy issue is posed by an interpretation of the Privileges or Immunities Clause that views it as simply a guarantee of equality. Proponents of that interpretation acknowledge that, "The natural response to this approach is to say that ... any equality-based reading of the clause is redundant because the Equal Protection Clause provides the necessary ground and more."