No Doubting Thomas

It is not often that I find myself in agreement with the substance of an opinion by Justice Thomas.  Yesterday's concurrence in Timbs v. Indiana, however, permits such agreement.  The Supreme Court long ago rendered the 14th Amendment's Privileges and Immunities Clause a nullity -  whatever it offered was not worth the work of ratification.  The clause provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."  Justice Thomas rightly points out that in the late 19th century the clause was emptied of meaning, and, as a result, people had to look elsewhere to vindicate substantial federal rights.  Thomas has a nice discussion of English legal history and colonial legal history and background to adoption of the 14th Amendment.  I am not an originalist so much of that seems to be superfluous.  The language of the Amendment is enough to do the job.  It is interesting that Justice Thomas does not actually identify the cases that will have to be overruled for this view of Privileges and Immunities to be adopted.  Would that he had.  We would be better off with a proper resurrection of the Clause.  Process is not what many cases under the Due Process Clause are about.  It is unseemly, at best, for Casey and related cases to be presented and analyzed under such terms.