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The Unbearable Wrongness of Slaughterhouse

In my last few posts, I have been arguing that it is problematic to continue to apply the Slaughterhouse Cases, because the majority decision is so wrong. It belongs in the worst category of Supreme Court cases, cutting the heart out of a key constitutional provision and leading the Court to employ nonoriginalism to compensate for it.

The 14th Amendment was a key constitutional amendment. After the Civil War, many in the former Confederate states resisted the regime sought by the victorious North. Once the 13th Amendment ending slavery was enacted, many of the former Confederate States sought to impose Black Codes which treated former slaves as second class citizens – depriving them of basic common law rights, such as the right to contract. The former Confederates argued this second class citizenship was consistent with the 13th Amendment because it fell short of full-fledged slavery.

To prohibit the Black Codes, Congress passed the Civil Rights Act. But the constitutionality of the Act was questionable (since it lacked an enumerated power foundation). In addition, it was possible that the Act would be repealed once the Democrats took back control of the Congress. Thus, section 1 of the 14th Amendment was designed in part to address these concerns, both providing a secure foundation for the Civil Rights Act and establishing basic protections in the Constitution itself. The relevant language stated:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It should be clear that the Privilege or Immunities portion of this provision was meant to be important. It was placed first and it most obviously protected individual substantive rights (rather than procedure or equality).

The Slaughterhouse Cases involved a state law that forbade the use of a slaughterhouse except at a specified slaughterhouse.  This was challenged as a violation of the privileges or immunities of citizens of the United States.  (The specific dispute in Slaughterhouse was not all that consequential for the issues of this post, although it does raise some interesting questions.)

Writing for a 5 to 4 majority, Justice Miller first concluded that the provision did not protect state privileges or immunities. Thus, the Clause did not cover the type of rights attacked by the Black Codes and protected by the Civil Rights Acts. This was extremely dubious. A key purpose of the Amendment was to protect these rights, yet Miller claimed they were not protected by the Clause. The reason: Miller believed that viewing these state law rights as protected would undermine federalism.

But even worse than this artificial exclusion of the privileges or immunities from state law rights is Miller’s description of what the privileges or immunities of citizens of the United States were. Here is an excerpt from the opinion:

the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.’

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.

The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus.

The right to use the navigable waters of the United States, however they may penetrate the territory of the several States,

all rights secured to our citizens by treaties with foreign nations

A review of these rights shows the problem with viewing them as the “privileges or immunities of citizens of the United States” in the 14th Amendment. They are largely unrelated to the purpose of the Amendment to provide basic protections to the former slaves (and to unionists in the South).

Now, if this were the only meaning of “privileges or immunities of citizens of the United States,” then we would be stuck with it. But it was not. Instead, the Court chose it because it did not like that other interpretations would interfere with state rights and federalism. But while federalism is an important part of the Constitution, it cannot justify reading the Privileges or Immunities Clause to be irrelevant rubbish.

There were several other very plausible interpretations of this language. First, the Court could have interpreted that language to refer to enumerated rights that were conferred by the U.S. Constitution, such as the Bill of Rights. That would have had the advantage of at least protecting some rights of relevance, such as the First Amendment and the Comity Clause. This position has been ably defended in recent years by Kurt Lash. To my mind, though, there are significant problems with this view, which I may discuss in a later post.*

Second, the Court could have interpreted “privileges or immunities of citizens of the United States” to mean the rights enjoyed by citizens throughout the United States. Under this view, the rights would include state law rights that were enjoyed throughout the states of the union. If a right had been protected for many years throughout the country, then an attempt to take it away by some states would be unconstitutional. This would protect the common law rights mentioned in the Civil Rights Act and that the Black Codes infringed. This is my view of the Clause. While it raises many issues, it fits the language and strongly fulfills the purpose of the Clause.

Whichever alternative interpretation of the Clause one has, I think it is clear that Slaughterhouse was wrong – seriously and grievously wrong. It is as if a court interpreted “freedom of speech” to mean the right to speak when no one is listening, because the court feared that the unclear meaning of the provision might give the judiciary too much power. That would gut the First Amendment in much the same way that Slaughterhouse gutted the 14th Amendment.

* Kurt reads the Slaughterhouse opinion as not denying that the Bill of Rights was incorporated.  But it was not read that way, nor do I believe it can plausibly read that way.  Indeed, Justice Miller joined the majority in Cruikshank.

Reader Discussion

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on April 01, 2019 at 11:28:03 am

"First, the Court could have interpreted that language to refer to enumerated rights that were conferred by the U.S. Constitution, such as the Bill of Rights. "

I agree that this interpretation would be seriously flawed, in that it would take the unfounded position that the rights of individuals and citizens were created by the federal government and "conferred" upon the people.

The correct reading as inferred from the notes at the Constitutional convention, the Federalist Papers, the Anti-Federalist Papers and state ratification conventions is that the BoR were a list of restrictions upon the federal government from infringing upon pre-existing natural rights of individuals and citizens., and that via the 9th Amendment, such listing was not all-encompassing of those rights.

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Image of OH Anarcho-Capitalist
OH Anarcho-Capitalist
on April 01, 2019 at 12:11:52 pm

This seems a quite sensible approach. P&I is neither rubbish nor surplus verbiage - nor was it so intended. Linking P&I to the Civil Rights Act and efforts to overcome the Black Codes places the intentions AND TEXT of the 14th in perspective. To deny the connection, and in so doing the existence of certain Privileges and Immunities, one must willfully deny the history of the period as well as earlier history surrounding the original P&I clause.

Yet, certain difficulties still arise under a more expansive conception of P&I. Mark Pulliam so argues. I share that concern but not his conclusion. The difficulty arises from our inability / unwillingness to define the extent of P&I. As either Devin Watkins or David Upham had earlier stated, P&I may not be "determinate" but it is "determinable."

Pulliam's concerns are not without merit. As we have observed, jurists in the past number of decades have determined that all manner of previously unapproved behaviors are now to be considered "rights", there is a valid concern that these new rights may be without end and will multiply such that the rights of others are thereby infringed / abridged.

What is to be done?

While accepting, as mentioned above, that P&I may not be "determinate", still we may seek to make them "determinable." As a simple device to accomplish this, may we not employ the concepts of "inal;ienable" vs "alienable" rights. Clearly, there are some rights, or liberties in this instance, that we may agree to have limited by our Legislative representatives. This is imply a consequence of consenting to civic comity / legislation. While others are clearly "INalienable" and may not be abridged, voluntarily or by force of government action. Can we not look to the actual history of the United States to observe what was understood to be alienable versus what was not. (And yes, allowance must be made for current changes in beliefs, perspectives, etc).

We often employ the age old "Hat" example as a liberty that ought to be protected. I disagree (as an example). Wearing of a hat is not fundamental to Us citizenship, nor would it affect in any meaningful way the functioning of the American system of governance. Even providing for a religious exemption for hat wearers would not meaningfully affect the functioning of this regime. And yes, this following example is not completely on point but here goes:

Arnold Palmer ALWAYS demanded that golfers REMOVE their hats when entering any of his clubhouses. To my knowledge, no one ever refused to do so. Did this affect anything? did it demean those who preferred to cover their bald heads? (Ha!). No, it was a simple act of "comity", an act of social grace. Yes, it is a private concern / business, BUT still it illustrates that some "accommodations" must and ought to be made for the sake of social comity. In short, hat wearing is alienable.

Same with painting my hopuse purple and tangerine. BTW, I am not permitted to do so. Yet, my paint chocies do no real harm to my neighbor. It neither frays his wiring, clogs his plumbing or causes his roof to be covered in moss. It is questionable whether it lowers property values. YET, for the sake of comity, I chose "off-white" paint. what of my liberty to freely express my *inner* appreciation of "Kennedy's "mystery"? This too is alienable. And again, both for comity and because I have expressed both explicit and implicit consent to limit my behaviors / liberties.

Absent such a shared "Common Mind" with respect to self limiting behaviors / practices, an unbounded cornucopia of P&I will yield us nothing more than constant expansion AND simultaneous abridgement of others rights.

Can we not make an effort to better "cabin" P&I.
I believe that if we are able to do so, and convince the Black Robes of the validity of this definition, we will then be able to both defend proper P&I and simultaneously "rejuvenate" State Police Powers.

Otherwise, trips to public restrooms will continue to be matters of judicial and personal contention (as one example).

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Image of gabe
gabe
on April 03, 2019 at 17:44:15 pm

If every citizen of the United States is a citizen of the state in which he resides, the privileges and immunities of citizenship of that state must be his as a citizen of the United States. Therefore, a state cannot abridge (in the sense of unequally restrict) the privileges and immunities of that state’s citizenship. If understood in this sense, the first clause of the 14th Amendment tracks much of the Civil Rights Act which guarantees everyone the same right to do certain things as “white” people. It also would track the “equal protection” use of the term privileges and immunities in Article IV of the original document. In the Slaughterhouse cases, running a slaughterhouse would be a privilege of some citizens of Louisiana. The question then becomes whether the ability to run a slaughterhouse was wrongfully abridged by the state.

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Image of Charles Kramer
Charles Kramer
on April 09, 2019 at 08:50:14 am

[…] John McGinnis.  Rappaport followed up with a full-blown critique of the Slaughter-House Cases, “The Unbearable Wrongness of Slaughterhouse.”  The reaction of Harry Jaffa’s disciples (here and here) was predictable, given their wont […]

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Image of Still Searching for the Judicial “Holy Grail”
Still Searching for the Judicial “Holy Grail”
on April 16, 2019 at 05:46:07 am

[…] I wrote a couple of posts on whether the Privileges or Immunities Clause protected unenumerated rights. In my view, the […]

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Image of Does The Ninth Amendment Constitutionally Protect Unenumerated Rights?
Does The Ninth Amendment Constitutionally Protect Unenumerated Rights?
on April 17, 2019 at 06:36:25 am

[…] I wrote a couple of posts on whether the Privileges or Immunities Clause protected unenumerated rights. In my view, the […]

read full comment
Image of Does The Ninth Amendment Constitutionally Protect Unenumerated Rights? – Building Blocks for Liberty
Does The Ninth Amendment Constitutionally Protect Unenumerated Rights? – Building Blocks for Liberty

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.