14th Amendment Bars Protectionism, But Not Inefficient Regulation

In a previous post, I argued that the Fourteenth Amendment protects economic liberties. One concern often expressed about such protection  is that the courts would become “a perpetual censor” of all  legislation. But the best evidence of the originalist standard of review shows that concern is misplaced. The standard forbids economically protectionist legislation directed against citizens within a state, but is otherwise relatively modest.

Here Justice Field’s dissent in Slaughterhouse is again instructive both about which rationales justify trenching on economic liberties and which do not. (While his opinion relied on the Privileges or Immunities Clause, two justices who would have also relied on the Due Process Clause concurred on these standards).  Fields, of course, would have invalidated the Louisiana monopoly that made it impossible for other butchers within the state to compete in New Orleans. Thus, it is not a justification under the Fourteenth Amendment to prefer one group of citizens to another. Economic protectionism, which is the essence of a state granted monopoly without public regarding considerations, is thus unconstitutional.

Indeed, no Supreme Court case has ever clearly stated that state regulation based on economic protectionism or on favoring one class of citizens over another is constitutional. The fact that the Court at the height of the New Deal was unwilling to say that states were justified in preferring one class of citizens over another because of politics shows how unpersuasive it the attempt to conclude that purely protectionist legislation meets even the most lenient standard of review.

The harder question is how courts are to proceed, assuming that the defense of the legislation can be rooted in a putative police power objective. Here the language of Justice Field’s dissent again is the most relevant evidence of the appropriate standard of review as an originalist matter. Field expressly contrasted the grant of a monopoly with regulations that had some basis in health and safety:

That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and, when these are not in conflict with any constitutional prohibitions or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.

The pretense language echoed Chief Justice Marshall’s statement in McCulloch v. Maryland that the necessary and proper clause does not empower Congress to pursue objectives outside the enumerated powers even if they are done under the guise of doing so. But the other side of the coin of McCulloch’s pretext language is the Congress has wide scope to determine the best means to achieve those objectives, even if those means are costly.  The 14th Amendment does not enact cost-benefit analysis.

Nevertheless, courts following Field’s interpretation can invalidate laws that are a “pretense.” For instance, under a pretext test, the Craigmiles Court may well have been right to reject the justification that suppliers of coffins needed sensitivity training for the bereaved when such training was not required for many other supplies for services to the bereaved. This differential treatment without justification suggests pretext.

To be sure, applying the pretextual text will require judgment. Enforcing a rule preventing pretext means that courts should assure that there is a not insubstantial fit between those regulated and the rationale that gives rise to the regulation. But to the objection that this approach will result in the judiciary striking down some legislation that should be upheld, the Constitution does not try to hold the errors costs of invalidation at zero. That is obvious from the tests applied in the area of what now are termed civil rights. We should not accept a jurisprudence that makes unjustified distinctions between these rights and economic rights.  Whatever liberties are protected by the Constitution should be protected by the judiciary.

Reader Discussion

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on January 17, 2016 at 20:48:19 pm

"The standard rules out economically protectionist legislation but is otherwise relatively modest."

One of the clear goals of adopting the Privileges or Immunities Clause was to make sure that courts would not gut the Article IV Comity Clause. Congress was afraid the Court might deem the Comity Clause unenforceable by the federal government along the lines of Kentucky v. Dennison, 65 U.S. 66 (1860).

Isn't it true that the Comity Clause already does bar a considerable amount of protectionism by states? What's the problem with continuing to rely upon the Comity Clause for this purpose? It requires out-of-state citizens to be treated like in-state ones, so that ought to do the job shouldn't it?

There's also the "dormant" Commerce Clause to consider. It treats a commercial regulation as a concurrent power rather than an exclusive federal power, provided the state regulation does not discriminate against or unduly burden interstate commerce. I'm not sure this doctrine really does much that the Comity Clause does not, but in any event these two existing doctrines together pretty much clobber protectionism. I don't see why either one of these existing doctrines doesn't do everything that Professor McGinnis suggests ought to be done instead by some part of the 14th Amendment.

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on January 17, 2016 at 23:19:31 pm

"Whatever liberties are protected by the Constitution should be protected by the judiciary."

Indeed!!! If one were foolish enough to give credence to the Drafters of the 14th amendment, as well as the ratifiers of the amendment, one would think that "civil rights" were not amongst the protections offered / granted by the Amendment. Repeatedly, Bingham, Howard and others denied that the 14th would do anything more than afford security to those guarantees enumerated in the first eight amendments to the constitution as well as certain other personal rights listed in the main text of the constitution.

Were this not so, and "civil / political" rights were intended to be granted / protected or even viewed as an ORIGINAL expected application of Section I, then why did many of the same drafters vociferously express a contrary opinion AND why did many of the very same individuals deem it NECESSARY to eventually draft, pass and cause to be ratified the 15th Amendment (also later the 19th for women).

Again, what were the enumerated rights at the time of adoption. Was there an enumerated power to restrict "odious licensing" requirements or was this not viewed as a function of a state police power. Given the history of state governments arbitrary, odious and downright "stupid" internal regulations up to and even following the civil war AND about which the members of the 39th congress (and various State Legislatures) were keenly (painfully?) aware, and given the fact that these same people repeatedly stressed the limits of the 14th, how is it that we today can claim that they intended that which they clearly indicated they did not so intend, nor that which they believed exceeded the specific and enumerated grants of power under the constitution. It is a testament to their devotion to limited governance and our Federal structure that even after the horro of a bloody civil war, which temporarily tore the nation apart, these men were still devoted to the concept of Federalism. Then again, today that means nothing - but let us not cover their thinking (and their" work-product" as modern day legal beagles like to say) with the patina of modern day concepts of rights and diluted federalism.

No, this is quite simply "Judge-made" law. If one would like to see how soon this Judge made law began to have effect, you do not have to look to Slaughterhouse. Look to Justice Joseph Bradley's opinion in the Louisiana Court, Live Stock Dealers (later to become Slaughterhouse) in which he claims that the drafters obviously did not know what they were intending or anticipating. (I'll skip the quote - but will supply if wanted).

It continues at a somewhat more rapid pace today, does it not?

My Seahawks lost today. I may argue that, (as usual) the loss may be due to an inability or unwillingness on the part of my dang head coach to open up the playbook. This is arguable - FOR football. NOT SO MUCH for the Black Robes - the playbook is defined by the text, intent, original meaning and expected applications of the Constitutional Playbook - no more "audibleing"!!!!!
Honestly, I don't know which upsets me more!!!!!!!

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on January 18, 2016 at 00:15:57 am

Thanks for your message. I think you are using a more different meaning of protectionism than I am. In Slaughterhouse, the economic discrimination worked by the local monopoly at issue was against citizens within the state, and not directed against those out-of-state and that is the kind of discrimination with which the 14th Amendment is concerned. I have made slight changes in the post to avoid similar misunderstandings. Justice Fields in fact says that the Privileges or Immunities Clause does for in-state-citizens what Article IV did for those out-of-state.

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John O. McGinnis
on January 18, 2016 at 00:57:24 am

Thanks for the reply. "Protectionism" is primarily understood as the theory, practice, or system of fostering or developing domestic industries by protecting them from foreign competition through duties or quotas imposed on imports, and through similar means.


There is a secondary definition: "any program, policy, or system of laws that seeks to provide protection for property owners, wildlife, the environment, etc."

If you're referring to this second definition, then that seems to cover a majority of the laws on the books, with few limits, given that most every law is designed to protect some interest or another.

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Image of Andrew
on January 18, 2016 at 01:09:53 am

I should add something. To me, the meaning of the Privileges or Immunuties Clause is clear in historical context. The first clause of the 14th Amendment overturned the Dred Scott decision by guaranteeing citizenship for nearly all people born in the United States. The second clause sought to ensure that such citizenship would not become a trivial and empty formality, by requiring states to respect the privileges and immunities that the Dred Scott decision said belong to citizens: "the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself".

Did any judge in Dred Scott disagree with this statement by Taney? Not that I know of. Did any of the judges in Dred Scott say that the rights and privileges of the citizen also include an unenumerated right related to economic protectionism? Not that I know of. And once we imagine that such a right is included, I don't see any limit to including further rights, be it the right to stay out of jail, the right to have sex in the street, or the right to trespass on other peoples' property.

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Image of Andrew
on January 18, 2016 at 11:22:06 am

"Justice Fields in fact says that the Privileges or Immunities Clause does for in-state-citizens what Article IV did for those out-of-state."

And again, Justice Fields (in the minority BTW) misconstrued the meaning of the 14th's P&I clause. It was never intended to apply to what had previously been considered to be the exclusive domain of the States under Art IV.
Only to the extent that "state" citizens were to be afforded security for those enumerated rights granted by the Federal Constitution can it be said the Field's particular interpretation is correct and those include speech, assembly, etc - but clearly not economic rights or other civilly (state) afforded privileges.

Of course, it is an odious regulation - yet not all bad laws are unconstitutional and certainly not so according to P&I of the 14th.

Look elsewhere for the reason and not to the preferences of the Radical Republicans of the 39th congress who pushed such an expansive reading of the P&I clause. BTW - the Radicals lost the battle.
Apparently, the "war' was later won for them by a the Black Robes!!! - that most democratic of institutions.

Again, it seems as if we like to "audible-ize."

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Image of gabe
on January 19, 2016 at 12:05:53 pm

Thought-provoking stuff, McGinnis. Sorry to be preoccupied during this discussion; maybe next time.

Mostly I wanted to say Die, Seahawks, Die.

Thanks again.

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Image of nobody.really
on January 19, 2016 at 12:28:10 pm

Well, I wouldn't go quite that far - but they did suffer a rather serious wing clipping!!!

they will rise again - Oops, that's Phoenix, isn't it!!!!

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Image of gabe
on January 19, 2016 at 16:58:20 pm


Is McGinnis a SEAHAWKS fan - I didn't know that.

I think his response would be - "Don't be a hater!!!!!

take care

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