When the Supreme Court ruled that Congress could not rely upon its powers under Article I to abrogate Eleventh Amendment immunity, it failed to consider the significance of the Fourteenth Amendment Privileges or Immunities Clause. In Congressman Bingham's final speech to Congress calling for approval of that Amendment, he argued that the Privileges or Immunities Clause barred states from attempts to nullify federal law. Subsequent Supreme Court interpretations, beginning with the Slaughter-House Cases, reinforced this understanding. When Congress uses its Article I authority to establish rights, privileges, or immunities of the United States citizens, section five of the Fourteenth Amendment empowers Congress to enforce those rights. Based upon this thesis, Supreme Court decisions denying liability for patent, age discrimination, or Fair Labor Standards Act claims should all be reversed. Rights established by the federal government under the Americans with Disabilities Act should be enforceable against the states.
William J. Rich,
Privileges or Immunities: The Missing Link in Establishing Congressional Power to Abrogate State Eleventh Amendment Immunity,
28 Hastings Const. L.Q. 235
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol28/iss2/2