Friday, October 29, 2004

Substantive Due Process v. Privileges or Immunities:

Check out Sandefur’s response to my post where I question whether the “due process” clause, as opposed to the “privileges or immunities” clause really contains any substantive rights.

Note here when he says:

Incidentally, I’m quite attracted to the theory (advanced, if I recall correctly, by Akhil Reed Amar, but I’m not sure) that the three clauses of the Fourteenth Amendment are aimed at the different branches of government: the privileges or immunities clause regulates the legislature, the due process clause regulates the judiciary, and the equal protection clause regulates the executive.

Amar may very well have advanced this theory. However, I do know that Walter Berns advanced this theory in his book, Taking the Constitution Seriously. And I blogged about Berns and his theory of the 14th Amendment in a review of that book, here.

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