For the first time since the mid-twentieth century, originalists comprise a majority of the Supreme Court. Yet for all their originalist bona fides and eagerness to overturn precedents, the majority has expressed remarkably little interest in overturning one of the most egregiously wrong Supreme Court cases ever decided: The Slaughter-House Cases (1873). Those cases, whose 150th anniversary this month’s forum marks, eviscerated from the Constitution the Fourteenth Amendment’s crown jewel, the Privileges or Immunities Clause. That clause provides, along with the preceding Citizenship Clause, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

It is commonly believed that the relevant work of the clause is already accomplished under more conservative versions of modern substantive due process and equal protection. But that is not the case. If the clause were to be properly revived, that would raise serious questions about the modern lack of protection for economic liberties, and—even more provocatively—about the modern doctrine of incorporation. To be sure, there is no scholarly unanimity on the scope of the privileges and immunities of US citizens, and there is even less consensus on what work the word “abridge” does. On the latter point, I have a dissenting view, at least relative to contemporary scholars—though the more I speak of my views, the more I discover others agree.

Nevertheless, a careful examination of the debates over the clause’s scope and work shows that scholarly disagreements notwithstanding, the Supreme Court cannot continue to ignore this clause.

The Slaughter-House Cases

The cases that made their way to the Supreme Court in 1873 involved legislation in Louisiana granting a monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company over the slaughtering of animals in New Orleans. Any butcher in the city could continue his trade but had to do so at the premises of the Crescent City Company and pay a fixed rate per animal to the company. The law was ostensibly a health measure and did have some elements important for public health, including the requirement that the landing and slaughtering of animals take place below the city of New Orleans and a requirement for inspection.

Butchers throughout the city sued, claiming that the monopoly and the terms on which they could do business with it violated the Thirteenth Amendment, the common law’s prohibition on monopolies, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The principal theory, however, was centered on the Privileges or Immunities Clause.

Counsel for the butchers argued that the privileges and immunities of citizens of the United States are “the personal and civil rights which usage, tradition, the habits of society, written law, and the common sentiments of people have recognized as forming the basis of the institutions of the country,” including the “power to carry on commerce.” The clause’s “purpose is manifest, to establish through the whole jurisdiction of the United States one people,” that each citizen’s “privileges and immunities cannot be abridged by State authority,” and “that State laws must be so framed as to secure life, liberty, property from arbitrary violation and secure protection of law to all.” The clause was not limited to the freed people, but the “vast number of laborers in mines, manufactories, commerce, as well as the laborers on the plantations” were also “defended against the unequal legislation of the States.”

A bare majority of the Supreme Court disagreed. Justice Miller limited the privileges and immunities of US citizens only to those based in federal law. He argued that the Citizenship Clause distinguished “between citizenship of the United States and citizenship of a State,” and therefore if the Privileges or Immunities Clause “was intended as a protection to the citizen of a State against the legislative power of his own State,” it is remarkable “that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it.”

Justice Miller argued that the privileges and immunities of citizens of a State were those secured in Article IV, Section 2, of the original constitution, providing that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States.” The clause, now known as the Comity Clause, was intended to secure out-of-state citizens when traveling or residing in another state the same civil rights that that other state secured for its own citizens.

Since Slaughter-House was decided, the clause has only been used to decide one case that is still good law.

In Corfield v. Coryell (1825), Justice Bushrod Washington famously held that Article IV reached “those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign.” Such rights included “protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.” And it included the rights “to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal.”

Justice Miller asked: “Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?” He and his brethren could not imagine that Congress and the people had intended such a major break from the antebellum federalist structure of our institutions.

Still, if these privileges and immunities are excluded, then what privileges and immunities are exclusively those of citizens “of the United States”? Justice Miller suggested a few, such as the right to hold federal office and transact business with the federal government; access to seaports and land offices and federal courts; protection when on the high seas or within the jurisdiction of a foreign government; to use the navigable waters; and “to peaceably assemble and petition for redress of grievances, [and] the privilege of the writ of habeas corpus,” which “are rights of the citizen guaranteed by the Federal Constitution.”

We can divide Justice Miller’s federal privileges and immunities into two groups. The first includes privileges and immunities that it is not within the power of a State to abridge in the first place (like going to Washington, holding federal office, and protection on the high seas); that it is highly improbable that a State could abridge or that it could not abridge without already violating the Supremacy Clause (like the right to access federal courts and offices); and that no State had ever really abridged in the first place and that was totally irrelevant to the Civil War and Reconstruction (like the right to use navigable waters).

The second set of rights—those “guaranteed by the Federal Constitution,” like the rights of assembly and petition—can be abridged by a state and were routinely abridged by the states in the prelude to the Civil War and after. Thus, under Miller’s reading, the only way the clause does any work is if it makes the federal Bill of Rights applicable against the states. Yet Twitchell v. Pennsylvania, decided in 1869 the year after the Fourteenth Amendment was ratified, reaffirmed the holding of Barron v. Baltimore (1833) that the federal Bill of Rights limited only the national government; the Fourteenth Amendment was not mentioned. And in United States v. Cruikshank (1876), decided only three years after Slaughter-House, the Court again declared that the first eight amendments were “not intended to limit the powers of the State governments.”

As a result, the Privileges or Immunities Clause became a nullity: it referred to national privileges and immunities that it was not within the power of any state to abridge. Thus, in the 150 years since Slaughter-House was decided, the clause has only been used to decide one case that is still good law—Saenz v. Roe in 1999, which held that the clause guaranteed the right to interstate travel. But of course Article IV, Section 2’s privileges and immunities clause already guaranteed that right, as Justice Washington had explained.

What Privileges and Immunities?

Some originalist scholars like Kurt Lash have argued that Slaughter-House was right—that the privileges and immunities of national, as opposed to state, citizenship are principally those enumerated in the federal Constitution. But this view is implausible because there is simply too much evidence that the privileges and immunities of US citizens referred to all fundamental rights that all free governments had to respect. In other words, the privileges and immunities of United States citizenship included at least those rights secured by Article IV. That includes property and contract rights, which were also secured by the Civil Rights Act of 1866, but also the kinds of rights secured by the first eight amendments, such as the freedom of speech, of the press, to petition, and the right to bear arms.

The Civil Rights Act is particularly important to interpreting the clause. It declared persons born in the United States to be “citizens of the United States,” and that “such citizens, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, . . . as is enjoyed by white citizens . . . .” In other words, the Act declared the freed people to be citizens “of the United States,” and as such citizens—as citizens of the United States—they were entitled to equality in the provision of fundamental privileges and immunities, shared by all citizens across the United States, though defined and regulated differently under each state’s law.

Explaining his (subsequently overridden) veto, President Johnson explicitly tied these rights protected by the Civil Rights Act to the “the privileges and immunities of citizens of the United States.” Likewise, Lyman Trumbull, chair of the Senate Judiciary Committee who introduced the Civil Rights Act, said the law protected “those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights in this bill, and they belong to them in all the States of the Union.” And on the campaign trail in 1866, after the Fourteenth Amendment was sent to the states for ratification, Speaker of the House Schuyler Colfax said that the Civil Rights Act “specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease, and sell property, and be subject to like punishments.”

All this is consistent with the statements of John Bingham, the principal author of Section One of the Fourteenth Amendment, throughout 1866 and before. He and other antislavery thinkers had an unorthodox reading of Article IV in that it guaranteed intrastate equality, in addition to interstate equality. In this “ellipses” reading, Bingham and others argued that the clause guaranteed the privileges and immunities of citizens “of the United States” in the several states, and therefore a state could not discriminate in the provision of these privileges and immunities against its own black population. Here is what Bingham argued in January 1866:

When you come to weigh these words, “equal and exact justice to all men,” go read, if you please, the words of the Constitution itself: “The citizens of each state (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (applying the ellipsis ‘of the United States’) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several states. This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and more vital in that great instrument.

In short, even if Miller was right in Slaughter-House that the privileges and immunities of citizens of the United States included those kinds of rights secured by the federal Constitution, that is because the federal Constitution secures some rights that all free governments had to secure. But all free governments also had to secure other natural rights, like the rights to contract and property, that were denied to the newly freed men and women in the notorious Black Codes that the Civil Rights Act and the Fourteenth Amendment were intended to eradicate.

Abridgment

The more difficult question is what it means to “abridge” these privileges and immunities—that is, how the clause secures these rights. One possibility is that it is only an equality guarantee: states can continue to regulate and define rights as they please, and even abolish rights, as long as they do not arbitrarily discriminate in their provision as they did in the Black Codes. The argument for this reading, which I advance in my book The Second Founding: An Introduction to the Fourteenth Amendment, is that the Privileges or Immunities Clause was intended to constitutionalize the Civil Rights Act of 1866. As then-Representative James Garfield explains, because the Civil Rights Act “will cease to be a part of the law whenever the sad moment arrives when” the Democrats come to power, it was necessary “to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution.”

The Equal Protection Clause does not do this necessary work because “protection of the laws” was the narrower legal concept of protection against private violence and remedies for private invasions of private rights. That leaves the Privileges or Immunities Clause. And, as a textual matter, the word “abridge” does this equality work.

As John Harrison has explained, Section Two of the Fourteenth Amendment provides that a state that “denie[s] or in any way abridge[s]” the right of a male citizen over twenty-one years of age to vote will have its representation in Congress proportionally reduced. Yet the states themselves still determine the content of the right to vote. A state could still decide whether to have elections every two years, or three years, or four years; establish voter registration deadlines; and the like. The right to vote is “abridged” only when a lesser set of voting rights is given to any male citizen twenty-one years of age and over. The provision also specifically distinguishes a “denial” from an “abridgment.”

That said, the word “abridge” could also mean to lessen from a baseline. Thus, a second possibility is that the clause is an absolute guarantee of the privileges and immunities of citizenship. This might lead us to incorporation of the Bill of Rights against the states, but it could also lead to Lochner v. New York, the notorious case in which the Supreme Court invalidated a New York state law regulating the maximum working hours of bakers for violating the fundamental freedom to contract. Akhil Amar has noted this concern and suggested that perhaps the clause incorporates the Bill of Rights but is merely an equality guarantee with respect to contract, property, and other common law rights. Because the word “abridge” applies equally to all the privileges and immunities of citizenship, however, it is implausible to say that it is only an equality guarantee with respect to some rights but an absolute guarantee with respect to others.

Thus, there are only two plausible ways the Privileges or Immunities Clause functions: either it is an equality-only provision, or it is a fundamental rights guarantee and an equality guarantee with respect to all of the privileges and immunities of citizens, including contract and property rights. The latter might get us to Lochner, but that does not make it incorrect. Which of these two views is correct depends on the historical evidence.

Incorporation?

As I argue in a forthcoming article, Reversing Incorporation, the evidence for the fundamental-rights, incorporation reading has been greatly overstated in the past four decades of scholarship. The incorporationist scholars take any reference in antebellum or Reconstruction history to the personal, natural rights secured by the first eight amendments as a reference to the first eight amendments themselves. Any time the “right to bear arms,” the “freedom of speech,” or the “freedom of the press” is mentioned in Congress or among the abolitionists, it is taken as evidence that the speaker wanted to nationalize these rights—something on the order of making the relevant amendments applicable to the states.

This is a serious error. It was widely understood that these rights were antecedent to the first eight amendments. These were personal rights that derived from the state of nature, or were fundamental positive rights considered essential for the preservation of those natural rights. When read carefully, most of the cited statements refer not to the first eight amendments, but rather to the antecedent rights that the first eight amendments happen to secure in their particular way. In other words, merely identifying the antecedent natural rights as the privileges and immunities of citizens tells us nothing about how a particular constitutional provision—Article IV, the Republican Guarantee Clause, the First Amendment, or the new Privileges or Immunities Clause—would secure them. This point may seem obvious once it is stated, but in the literature the conflation of the antecedent rights with the amendments themselves is pervasive.

Three quick examples. First, both Akhil Amar and Michael Kent Curtis cite an antebellum pamphlet from Senator Plumer in response to a committee report by John C. Calhoun, which argued that it was incumbent upon the northern states to suppress abolitionist literature. Curtis argues Plumer’s “pamphlet asserted that First Amendment rights of speech and press were protected against both federal and state interference,” and Amar similarly writes that it declared “that freedom of speech and of the press were reserved to the people from both state and federal interference.” The pamphlet, however, argues that such laws would violate the state constitutions, and cites each state constitution’s first amendment equivalent.

Second, both scholars rely heavily on statements made during debates over whether to readmit southern states. But these representatives cited the Republican Guaranty Clause and then argued that the Constitution itself “describes” what a republican government looks like, including its rights guarantees. There is nothing here about incorporation.

Third, and finally, is the famous statement of Senator Jacob Howard when introducing the amendment in the Senate. It is widely believed that Howard described the “first eight amendments” as being among the privileges and immunities of citizens of the United States. But his discussion of those amendments is entirely within his discussion of Article IV. Howard was using the first eight amendments as illustrations of what the privileges and immunities of US citizens are; he did not say much at all about how the clause would secure them. All Howard says on this score is that the “great object” of Section One is therefore “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

Howard’s statement can certainly be interpreted to mean that he thought the amendment would apply all eight amendments against the states. But that reading is hardly compelled. The Privileges or Immunities Clause could ensure this respect either by prohibiting discrimination in these natural and personal rights against a disfavored class of citizens much like Article IV, or by prohibiting any infringement outright as the first eight amendments do. To illustrate this possibility, consider how one 1871 treatise writer treated Article IV.[1] The author explained that the privileges and immunities covered by the clause were the privileges and immunities of national citizens, including “[t]hose specified and enumerated in the federal constitution.” But the clause itself only required a state to treat out-of-state citizens equally with respect to such rights: “The states without” Article IV, “by their local legislation, might, and perhaps would, impose different restrictions on the residents of each other . . . militating against those unalienable rights.”

Must all free governments have the same answer to whether flag burning, stealing valor, watching animal crush videos, protesting at a dead soldier’s funeral, and advertising violent video games to minors can be prohibited? The question answers itself.

Another illustration of this possibility is the way Lyman Trumbull defended the Civil Rights Act, which, recall, was an equality guarantee. “Each State, so that it does not abridge the great fundamental rights belonging, under the Constitution, to all citizens, may grant or withhold such civil rights as it pleases; all that is required is that, in this respect, its laws shall be impartial.” Here, then, are two illustrations that merely identifying the privileges and immunities of citizenship—identifying the antecedent rights—does not tell us how any particular provision secures them. Fundamental rights can be secured by guaranteeing equality in their provision.

In other words, it was perfectly consistent to believe that there were fundamental rights that all free government had to secure, including the kinds of rights secured by the first eight amendments; that the states could nevertheless regulate those rights in different ways; but that the federal government could step in if the states discriminated in the provision of these fundamental rights—or, as Trumbull said, if the states abridged these rights.

Implications

The implications of overturning Slaughter-House and resurrecting the Privileges or Immunities Clause can hardly be overstated. To start with an implication with which most originalists will agree, the clause covers economic liberties like contract and property just as much as any other liberty. If we take the equality reading as a starting point—recall that the clause must at a minimum require equality, even if it is also an absolute guarantee—then there is simply no justification for “rational” or “any conceivable” basis scrutiny. Whether a law abridges a contract or property right will depend on whether the law is discriminatory.

Whether a law is discriminatory will, in turn, depend on whether it reasonably relates to the purpose of the right. That is why the Black Codes were unconstitutional: skin color has absolutely no relation to why we have contract or property rights. And that is why a “Gay Code” that prohibits gay Americans from possessing property or entering into contracts would be equally unconstitutional: not because being gay is a “suspect” or “quasi-suspect” class, but because sexual orientation has nothing whatsoever to do with contract and property rights.

At least under the equality reading, that does not necessarily lead to Lochner because there all bakers were treated the same. To be sure, one could always describe the alleged discrimination at a higher level of generality: bakers are treated differently than optometrists, and both have a “right to earn a living.” But the more general one defines the right, the easier it will be for a state to demonstrate that its regulation is reasonably related to the purpose of the right, and therefore a genuine regulation and not a discrimination or abridgment. That is why, in my view, Lochner was likely wrongly decided, but so was Williamson v. Lee Optical—there, the right at issue was the right to fit lenses to a face, which cannot be framed any more narrowly. And requiring an ophthalmology degree to do so was irrelevant to that right and was nothing but a grant of exclusive privileges to a special class of citizens.

This analysis also helps to answer Justice Thomas’s call in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. Justice Thomas suggested in a concurring opinion that the Court should reconsider its substantive due process precedents, including Obergefell v. Hodges, which guarantees a right to same-sex marriage. Under the Privileges or Immunities Clause, marriage is obviously a privilege or immunity of citizenship that all free governments must secure. Whether limiting marriage to opposite-sex couples is a genuine regulation or an abridgment will depend on the purposes of marriage.

Unlike in the hypothetical Gay Codes, this will be a tougher question—because everyone knows that sexual orientation has something to do with the purposes of marriage. Nevertheless, if those purposes include creating an economic, health, and welfare institution between two persons, and if it involves love, belonging, and dignity, then gay Americans can participate equally. And if it involves procreation and child-rearing, today gay Americans can participate in that, too, almost if not fully equally. At least, under the Privileges or Immunities Clause, Obergefell would not be so clearly and manifestly erroneous that it would warrant reversal under the originalist Justices’ theories of precedent.

Note the importance of overturning Slaughter-House for upholding Obergefell. It would be very difficult to sustain Obergefell under the conservative version of substantive due process, which requires the Court to narrowly define the right at issue, thus requiring a tradition of same-sex marriage, which for most of our history was nonexistent. And incorporation of the Bill of Rights obviously has nothing to do with marriage. And gay Americans are not a suspect class under modern equal protection doctrine. Only the equality reading of the Privileges or Immunities Clause makes a plausible case of Obergefell.

Lastly, a brief note on incorporation of the Bill of Rights. If my prior analysis is correct, then incorporation was likely a mistake, at least for the fully committed originalist. The right to bear arms and the freedom of speech and the right to be free of unreasonable searches and seizures are all fundamental rights that all free governments must secure. They are among the privileges and immunities of citizens. But, under the equality reading, the states would be able to regulate and define these rights differently. California could have more gun restrictions, and Texas could get rid of the exclusionary rule.

And even if the clause is an absolute guarantee, it would be a guarantee only of those rights that “all free governments” must secure. That looks very different from incorporation. True, all free governments must guarantee political speech, without which free government is impossible. But must all free governments have the same answer to whether flag burning, stealing valor, watching animal crush videos, protesting at a dead soldier’s funeral, and advertising violent video games to minors can be prohibited? The question answers itself.

But the Supreme Court will never be able to ask such questions so long as Slaughter-House stands and the Privileges or Immunities Clause remains a dormant part of our constitutional order.

[1] John King, A commentary on the law and true construction of the federal constitution 274-75 (1871).