Constitutional Privileges and Immunities: The Ninth Amendment and the Antimonopoly Tradition

This chapter explores a neglected issue, the American significance of the British common law and constitutional tradition barring governmental grants of monopoly in the ordinary trades. The thesis is that this constitutional limitation was retained for the American people by the Ninth Amendment. The general textual language of the Privileges or Immunities Clause, while designed primarily to incorporate the substantive protections of persons in the Bill of Rights, needed generality which in effect overlapped the due process clause by protecting all civil liberties. The national privileges and immunities of citizens of the United States are found in the original Constitution, in the Bill of Rights, and in English constitutional protections of 1791 preserved by the Ninth Amendment. The Privileges or Immunities Clause of the Fourteenth Amendment adopts the phrase "privileges [or] immunities of citizens" from Article IV, Section 2.