Panel I

The Original Understanding of “Privileges or Immunities”

Scholars contest the original meaning of the Fourteenth Amendment. In 1873, the Supreme Court rejected a challenge to state economic regulations under the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases. Since then, the Privileges or Immunities Clause has been best known as a “practical nullity.” However, Justice Thomas provided a strong challenge to this interpretation in his McDonald v. City of Chicagoconcurrence.

This panel explores whether the Fourteenth Amendment was principally concerned with equality, guaranteeing fundamental rights, or both.  If the Fourteenth Amendment does guarantee fundamental rights, does it merely incorporate the bill of rights against the states, or does it do more and provide protections for economic liberty? And was the Amendment intended to accomplish these purposes through a substantive notion of “due process” or through the Privileges or Immunities Clause? Is the fundamental-rights view inconsistent with judicial restraint? This panel will discuss these fundamental questions concerning the Fourteenth Amendment’s original meaning, and whether maintaining an expansive notion of substantive due process or resurrecting the Privileges or Immunities Clause would be an ill-conceived invitation to judicial activism.


Moderator and Panelists


MODERATOR - Judge Amul Thapar (U.S. Court of Appeals, Sixth Circuit)

Amul R. Thapar is a United States Sixth Circuit Judge, who has the privilege of being the first South Asian Article III judge. President George W. Bush nominated him to the district court (U.S. District Court for the Eastern District of Kentucky--this information retrieved from Wikipedia) on May 24, 2007, and President Donald J. Trump nominated him to the Sixth Circuit on March 21, 2017.

Before becoming a judge, Judge Thapar served as the United States Attorney for the Eastern District of Kentucky. While United States Attorney, Judge Thapar was appointed to the Attorney General's Advisory Committee (“AGAC”) and chaired the AGAC's Controlled Substances and Asset Forfeiture subcommittee. He also served on the Terrorism and National Security subcommittee, the Violent Crime subcommittee, and Child Exploitation working group.

Judge Thapar has also worked for the law firms of Williams & Connolly in Washington, D.C., and Squire, Sanders & Dempsey in Cincinnati, Ohio, and served as an Assistant United States Attorney in both the Southern District of Ohio and the District of Columbia. Between 1994 and 1997, Judge Thapar served as a law clerk to the Honorable S. Arthur Spiegel, who sat on the United States District Court for the Southern District of Ohio, and the Honorable Nathaniel R. Jones, who sat on the United States Court of Appeals for the Sixth Circuit. 

In 2015, Judge Thapar received the Daniel K. Inouye NAPABA Trailblazer Award. That same year, he also received a Green Bag award for an opinion he wrote, Wagner v. Sherwin-Williams Co. Civil No. 14-178-ART (E.D. Ky. Apr. 29 2015). He teaches at the University of Virginia School of Law, Vanderbilt Law School, and the Northern Kentucky University Chase College of Law.

Judge Thapar received his undergraduate degree from Boston College and his law degree from the University of California, Berkeley.

Relevant Articles, Cases, etc.:

  1. Coming Soon!
  2. Coming Soon!

PANELIST - Prof. Randy Barnett (Georgetown Law Center)

Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. After graduating from Northwestern University and Harvard Law School, he tried many felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago. A recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, Professor Barnett has been a visiting professor at Penn, Northwestern and Harvard Law School.

Professor Barnett’s publications includes twelve books, more than one hundred articles and reviews, as well as numerous op-eds. His works include Restoring the Lost Constitution: The Presumption of Liberty (2nd ed. 2013), The Structure of Liberty: Justice and the Rule of Law (2nd ed. 2014), and his latest book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). His other books include The Oxford Introductions to U.S. Law: Contracts (2010), Contracts: Cases and Doctrine (6th ed. 2016), and Constitutional Law: Cases in Context (3rd ed. forthcoming 2018).

In 2004, he argued the medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court. In 2012, he was one of the lawyers representing the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act.He’s appeared in numerous documentaries, including PBS’s Constitution USA with Peter Sagal;and portrayed a prosecutor in the 2010 science-fiction feature film, InAlienable.

Relevant Articles, Cases, etc.:

  1. Randy E. Barnett, Whence Comes Section One--The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011).
  2. Randy E. Barnett, The Proper Scope of the Police Power, 79 Notre Dame L. Rev. 429 (2004).

PANELIST - Prof. Kurt Lash (E. Claiborne Robins Distinguished Professor - Richmond School of Law)

Professor Kurt Lash serves as the E. Claiborne Robins Distinguished Professor of Law at University of Richmond School of Law.  He teaches and writes about constitutional law. Founder and director of the Richmond Program on the American Constitution, Professor Lash has published widely on the subjects of constitutional law and constitutional history, including The Fourteenth Amendment and the Privileges or Immunities of American Citizenship(Cambridge University Press, 2014), The Lost History of the Ninth Amendment (Oxford University Press, 2009), and The American First Amendment in the Twenty-first Century: Cases and Materials (with William W. Van Alstyne) (5th ed., Foundation Press, 2014). An elected member of the American Law Institute, Professor Lash’s work has appeared in numerous legal journals including the Stanford Law Journal, Georgetown Law Journal, Virginia Law Review, and Notre Dame Law Review. He has been a visiting professor at Northwestern University School of Law and is the former director of the University of Illinois College of Law Program in Constitutional Theory, History, and Law.

Relevant Articles, Cases, etc.:

  1. Kurt T. Lash, The Fourteenth Amendment and the Privileges or Immunities of American Citizenship (2014).
  2. Kurt T. Lash, Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act, 106 Geo. L.J. 1389 (2018).
  3. Kurt T. Lash, The Origins of the Privileges or Immunities Clause
    1. The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L.J. 1241 (2010).
    2. The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment, 99 Geo. L.J.  329 (2011).
    3. The Origins of the Privileges or Immunities Clause, Part III: The Constitutional Referendum of 1866: Andrew Johnson and the Original Meaning of the Privileges or Immunities Clause, 101 Geo. L.J. 1275 (2013).

PANELIST - Prof. Rebecca E. Zietlow (University of Toledo College of Law)

Rebecca E. Zietlow is Charles W. Fornoff Professor of Law and Values at the University of Toledo College of Law, where she teaches Constitutional Law, Federal Courts, and Constitutional Litigation. She received her B.A. Summa Cum Laude and Phi Beta Kappa from Barnard College, and then served as a Fulbright Scholar. Next, she received her J.D. from Yale Law School, where she founded the Yale Journal of Law and Liberation. Upon graduation, she clerked for the honorable John F. Grady of the U.S. District Court for the Northern District of Illinois.  

She has since taught at the University of Iowa College of Law, University of Toledo College of Law, and Vermont Law School. In 2012, she received the University of Toledo Outstanding Faculty Research Award.

Professor Zietlow’s scholarly interest is in the study of the Reconstruction Era, including the meaning and history of the Thirteenth and Fourteenth Amendments. Professor Zietlow is also an expert on constitutional theory, examining constitutional interpretation outside of the courts. Her book, Enforcing Equality: Congress, the Constitution and the Protection of Individual Rights, studies the history of congressional protection of rights, and the implications of that history for constitutional theory. Her work has been published in the Columbia Law Review, Boston University Law Review, Ohio State Law Journal, Florida Law Review, the Wake Forest Law Journal, and the University of Pennsylvania Journal of Constitutional Law, amongst other publications.

Relevant Articles, Cases, etc.:

  1. Teaching Congressional Enforcement of the Fourteenth Amendment, 62 St. Louis U. L. Rev. 655 (2018) 
  2. The Ideological Origins of the Thirteenth Amendment, 49 Houston Law Review 393 (2012)
  3. The Political Thirteenth Amendment, 71 Maryland Law Review 283 (2011)
  4. The Rights of Citizenship: Two Framers, Two Amendments, 11 University of   Pennsylvania Journal of Constitutional Law  1269 (2009)
  5. “Fourteenth Amendment: Citizenship Clause,” and “Federal Powers, Civil Rights” in Encyclopedia of American Governance (Cengage Learning, Inc.) (Forthcoming)
  6. The Promise of Congressional Enforcement, in, The Promises of Liberty: Thirteenth Amendment Abolitionism and Contemporary Context, Alexander Tsesis, Ed. (Columbia University Press 2010)
  7. Enforcing Equality: Congress, The Constitution, and the Protection Of Individual Rights (New York University Press 2006)

PANELIST - Prof. Ilan Wurman (ASU Sandra Day O'Connor College of Law)

Ilan Wurman is a visiting assistant professor at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He was formerly in private practice in Washington, D.C., and deputy general counsel on Senator Rand Paul’s US presidential campaign, associate counsel on Senator Tom Cotton’s campaign for US Senate, and a law clerk to the honorable Jerry E. Smith of the US Court of Appeals for the Fifth Circuit.

Ilan is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017). His writing on administrative law and constitutional interpretation has also appeared or is forthcoming in numerous law reviews, including the Stanford Law Review and the Texas Law Review, as well as in national journals, including National Affairs, The Weekly Standard, and City Journal. He graduated from Stanford Law School, and from Claremont McKenna College with degrees in Government and Physics.

Relevant Articles, Cases, etc.:

  1. Ilan Wurman, The Origins of Substantive Due Process (paper on file with author).
  2. Ilan Wurman, A Debt Against the Living: An Introduction to Orginalism (2017).
  3. Ilan Wurman, The Original Understanding of Constitutional Legitimacy, 2014 B.Y.U.L. Rev. 819 (2014).
  4. Ilan Wurman, Qualified Immunity and Statutory Interpretation, 27 Seattle U.L. Rev. 939 (2014).