Originalism aims to restrict the discretion of the judge by narrowing the meaning of the language of the Constitution to a narrow doctrine whose substantive limitations are obvious and rigid. If the Constitution’s meaning could legitimately be restricted to a small set of explicit rules, then any interpretation of constitutional requirements not strictly required by those rules could properly be rejected as illegitimate judicial activism. Unfortunately for originalism, fidelity to the language of the Constitution cannot generate such a result. Many of the most fundamental provisions of the Constitution state their requirements in broad, vague language that can only be implemented faithfully through the exercise of interpretive discretion. Instructions phrased in this way appeal to legal concepts (e.g. equal protection, due process), and the judge can only follow the instructions contained in that language by elaborating the relevant concept into a conception. The judge, that is, must make up his or her own mind—on due reflection—about what due process or equal protection requires. Fidelity to the Constitution (and to the language of all legal standards that appeal to concepts, rather than laying down conceptions) thus requires more, not less, interpretive discretion.

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.