This chapter challenges competing accounts of the privileges or immunities clause propounded by other scholars such as Kurt Lash, Michael Kent Curtis, Akhil Amar, and Randy Barnett. It argues that the privileges or immunities clause likely does not incorporate the Bill of Rights nor does it guarantee unenumerated fundamental rights. It argues that the privileges or immunities clause was instead an antidiscrimination provision with respect to state-defined civil rights.

This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.

This chapter briefly surveys the history of the Supreme Court's interpretation of the Fourteenth Amendment and shows how many salient cases would come out today under a correct originalist interpretation. It shows how the privileges or immunities clause justifies the result in Brown v. Board of Education and possibly also Obergefell v. Hodges, and explores the implications for, among other things, public accommodations cases, "one person, one vote," and partisan gerrymandering, economic liberty, and incorporation.

This chapter surveys the legal history of the term the "protection of the laws," from the writings of the early natural rights thinkers, the American Founders, and Blackstone to Andrew Jackson and antebellum state-level court cases. It argues that the concept of the "protection of the laws," including the "equal protection of the laws," was narrower thanmodern-day courts maintain: it was about the remedial and protective services supplied by the government and the laws aiming to protect individuals in the exercise of their rights against private interference and private violence.

This chapter surveys the legal history of privileges and immunities provisions, from early international treaties and the Wales Act of 1535–36 to the Articles of Confederation and the Comity Clause of the U.S. Constitution. It argues that these provisions were all antidiscrimination provisions: they did not guarantee any particular set of rights, but required equality in the provision of civil rights to those for whose benefits the privileges and immunities provisions were written.

This chapter argues that the Fourteenth Amendment deployed the antebellum legal language described in the first three chapters to solve the historical problems described in Chapter 4. It describes the reconstruction legislation of the Thirty-Ninth Congress – the Civil Rights Act of 1866, the Privileges and Immunities Bill of 1866, and the Freedmen's Bureau Act of 1866 – and shows how the framers of the Fourteenth Amendment sought to constitutionalize these pieces of legislation that would have solved the known historical problems of the times.

This chapter surveys the historical, political, and legal problems confronting the framers of the Fourteenth Amendment. It describes the antebellum debate over whether free blacks were "citizens of the United States" entitled to comity rights, the travails of abolitionists, the rampant private violence and mob rule and inadequate protection of the laws, and the abridgment of the civil rights of the newly freed people in the infamous Black Codes.

The Introduction outlines the argument of the book and its methodology, distinguishing the more reliable "language of the law" originalism fromless reliable versions that rely too much on legislative history or antislavery constitutional thinkers. Using this methodology, the book will show that the key provisions of the Fourteenth Amendment's first section had well-established antebellum legal meanings that chart a satisfactory middle course between interpretations that rely on what people thought in 1868 and those that allow judges to pour into the text their own extratextual values.