In an interesting blog commentary, Ilya Somin raises the issue of whether the Privileges and Immunities Clause of the 14th Amendment was intended to include the incorporation of the 14th Amendment application to all State activities or if the limitation on Federal power existed prior to initiation of the Amendment.
This is a perplexing question. On the one hand, why would the Privilege and Immunities Clause be included at all if not intended to be applicable. On the other hand, the scriveners of the 14th Amendment may have well intended that the Amendment only apply to acts within the State itself as to its affects on non-resident citizens.
Below is a Law Review article written by this office about the intent of the 14th Amendment.
The disagreement between Ramsey and myself is a relatively narrow one. He recognizes that my conclusion would be correct if the Fourteenth Amendment actually “incorporates” the text of the Bill of Rights against the states, as opposed to merely “deeply rooted practices” of state governments. Most originalist scholars today believe that the Privileges or Immunities Clause of the Fourteenth Amendment applies all or nearly all of the Bill of Rights against the states, following the pioneering work of Akhil Amar and Michael Kent Curtis on this issue. While some originalists believe that incorporation was “selective” (potentially leaving out a few parts of the Bill of Rights which were not considered important enough to warrant incorporation), virtually all scholars who endorse incorporation at all conclude that the Takings Clause of the Fifth Amendment was one of the rights that was in fact incorporated. As Amar, among others, point out, it was among the rights specifically mentioned by leading framers of the Amendment, such as John Bingham.