Oct 9, 2026 · 1 hr 9 min · 9 segments
David Upham, professor of law at St. Thomas University College of Law and senior fellow of politics and law at the University of Dallas, talks to Timon about the 14th Amendment and the privileges and…
David UphamGuest
Timon ClineHost
So, uh, I mean, to get, to get into, to some of the material then that you're, that you're covering, um, I mean I've s- I've seen arguments that, uh, well c- well, we could say, um, of more discontinuity between Article 4 and the 14th Amendment expression of the privileges and immunities clauses of the, the similar language notwithstanding, that the two are functioning, um, for different purposes.
The guarantees in view at the founding, um, of privileges, immunities, and what that provision is supposed to provide is, is different than what it's supposed to provide in 1866, uh, where the, uh, the former case, um, it's a more, what would you say? A state-centric sort of-
... uh, scope, and the latter is, um, at least, you know, you could say a good faith insertion, but it's the insertion of a sort of national scope-
So, so what is the, um... what is your reading of the continuity between the two, um, both in terms of usage, but most, most importantly, you know, purpose and, and function, uh, over the-
Law students, uh, learn, uh, it is black letter law, and it has been so for almost 150 years, that Article 4, Section 2 is a strictly interstate, um, equality provision, and it provides you basically entitlement to one immunity, an immunity against interstate discrimination with respect to, uh, uh, certain fundamental rights.
Not political rights, not certain benefits like in-state tuition, but, um, states can, um, states for the most part have to treat, um, out-of-state citizens equally with in-state citizens.
the citizens of each state should be entitled to equal treatment with other citizens in the other states.
Um, and that is, uh... that reading, however orthodox and however well-established it, it, it may seem, it was not actually well-established before the 14th Amendment, and really before the Slaughter-House Cases.
And it's a very complicated history, but [coughs] briefly said, the motive for, the motive for Article 4, Section 2 is probably largely state-centric.
The, the, the, the authors of the Article 4 did not think of themselves as trying to deal with states, um, treating their own citizens as sub-citizens or as effectively aliens in their own state.
The meaning says you'll be entitled to all privileges, immunities of citizens in the several states.
Um, the language isn't the language of a citizen going to, shall be entitled to equality in the other states.
The Constitution knows how to say other states, and they didn't write it that way.
So, uh, I mean, to get, to get into, to some of the material then that you're, that you're covering, um, I mean I've s- I've seen arguments that, uh, well c- well, we could say, um, of more discontinuity between Article 4 and the 14th Amendment expression of the privileges and immunities clauses of the, the similar language notwithstanding, that the two are functioning, um, for different purposes.
The guarantees in view at the founding, um, of privileges, immunities, and what that provision is supposed to provide is, is different than what it's supposed to provide in 1866, uh, where the, uh, the former case, um, it's a more, what would you say? A state-centric sort of-
... uh, scope, and the latter is, um, at least, you know, you could say a good faith insertion, but it's the insertion of a sort of national scope-
So, so what is the, um... what is your reading of the continuity between the two, um, both in terms of usage, but most, most importantly, you know, purpose and, and function, uh, over the-
Law students, uh, learn, uh, it is black letter law, and it has been so for almost 150 years, that Article 4, Section 2 is a strictly interstate, um, equality provision, and it provides you basically entitlement to one immunity, an immunity against interstate discrimination with respect to, uh, uh, certain fundamental rights.
Not political rights, not certain benefits like in-state tuition, but, um, states can, um, states for the most part have to treat, um, out-of-state citizens equally with in-state citizens.
the citizens of each state should be entitled to equal treatment with other citizens in the other states.
Um, and that is, uh... that reading, however orthodox and however well-established it, it, it may seem, it was not actually well-established before the 14th Amendment, and really before the Slaughter-House Cases.
And it's a very complicated history, but [coughs] briefly said, the motive for, the motive for Article 4, Section 2 is probably largely state-centric.
The, the, the, the authors of the Article 4 did not think of themselves as trying to deal with states, um, treating their own citizens as sub-citizens or as effectively aliens in their own state.
The meaning says you'll be entitled to all privileges, immunities of citizens in the several states.
Um, the language isn't the language of a citizen going to, shall be entitled to equality in the other states.
The Constitution knows how to say other states, and they didn't write it that way.
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