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Restoring the Lost ConstitutionThe Presumption of Liberty$
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Randy E. Barnett

Print publication date: 2013

Print ISBN-13: 9780691159737

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691159737.001.0001

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Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause

Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause

Chapter:
(p.193) Chapter Eight Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause
Source:
Restoring the Lost Constitution
Author(s):

Randy E. Barnett

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691159737.003.0009

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.

Keywords:   judicial review, Privileges or Immunities Clause, state laws, U.S. Constitution, state power, federal courts, Supreme Court, Slaughter-House Cases, Due Process Clauses, Fourteenth Amendment

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