The arbitrariness of Cass Sunstein's approach to constitutional interpretation weakens his critique of originalism.
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 In addition, it was possible that the Act would be repealed once the Democrats took back control of the Congress.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.