As President Trump continues to roll out his nominees for various federal district and appellate court vacancies, those nominees’ academic and professional records are undergoing a new season and level of scrutiny. This is, of course, a familiar process to be both expected and welcomed.

Less familiar, however–though perhaps this is the new paradigm–is the targeted scrutiny of the individuals who scrutinize such nominees’ judicial philosophies, rather than the judicial philosophies themselves. This was the path chosen by Joe Patrice at Above the Law yesterday, with the publication of his post, “Battle Brewing Over the Privileges or Immunities Clause – Wait, Really?” In his post, Joe uses the 1873 Supreme Court decision in The Slaughter-House Cases to take aim at “[c]onservatives of the libertarian bent.” But he misses the mark badly on several scores, and because we bill ourselves as “a cabal of conservative and libertarian law students and lawyers agitating for first principles,” it is only fair to offer a counter-narrative here.

Joe’s palpable frustration with those of us who assert that The Slaughter-House Cases were wrongly decided and that disagreement with this position by a judicial candidate warrants attention apparently boils down to three points: 1) it really does not matter if the cases were wrongly decided–what was taken from the Privileges or Immunities Clause has been given to the Due Process Clause; 2) the Privileges or Immunities Clause is not really about economic liberty, it is about…economic freedom; and, 3) those actively in favor of overturning The Slaughter-House Cases are out to exalt and entrench Big Business interests.

I’ll take these in reverse order.

Slaughtering The Slaughter-House Cases

Joe’s parting shot against “the libertarians” is that viewing the Fourteenth Amendment’s Privileges or Immunities Clause as protecting an individual’s right to pursue her craft against a state’s arbitrary or unreasonable regulation is tantamount to the belief that

the “original meaning” of the post-Civil War amendments weren’t [sic] so much about the Civil War as they were [sic] a bold statement that America stands up for the rights of entrenched business interests to poison communal water sources in pursuit of private economic gain.

This kind of over-inflated rhetoric is commonplace these days, though not usually in legal publications. But, ironically, Joe’s mischaracterization ignores the facts of the very vehicle he has chosen to launch his attack against “the libertarians”: The Slaughter-House Cases. So let’s correct the record and set the scene.

The Slaughter-House Cases were a set of cases consolidated by the Supreme Court to hear the appeals of New Orleans-area butchers in their challenges to a state-sanctioned monopoly on local slaughterhouses. As Joe rightly points out, New Orleans suffered from a serious health crisis at the time, due in large part to the buildup of slaughterhouse and livestock waste in the Mississippi River that contributed to unsanitary drinking water and caused cholera outbreaks and other health problems. The state’s solution, however, was not to impose corrective health regulations on all butchers or to zone slaughterhouses down-river of the city (which was a solution previously proposed by the City of New Orleans). Instead, the solution was to create a state-sanctioned monopoly, funded by politically-well-connected private investors.

The unsurprising result of the state’s creation of a government-chartered private corporation–like the result of the special-interest-driven “health regulations” challenged in Lochner v. New York–was immense hardship on local, family-run businesses trying to make ends-meet in poverty-stricken communities, all to the advantage of well-connected Big Business investors. Through this lens, as Texas Supreme Court Justice Don Willett explained in his Patel concurrence,

Slaughter-House involved special-interest favoritism masquerading as a public-health measure, a law granting a private corporation an exclusive benefit at the expense of hundreds of local butchers.

In other words, The Slaughter House Act was not really about the common good. Professor Randy Barnett has similarly described this view, in a factual account to the Supreme Court Historical Society, explaining

we have very good reason to believe that The Slaughter House Act was indeed the product of corruption. In one of the literally dozens of lawsuits that surrounded the statute, state court Judge William Cooley ruled that stock in the corporation had been issued ‘in order to bribe the members of the General Assembly and the other men who stood in their way in order to obtain final passage of the bill and its signature by the Governor.’ He found ‘that members of the House of Representatives had been bribed for their votes, and members of the Senate were also bribed for their votes. The evidence further showed,’ he wrote, ‘that other parties occupying official positions in the City of New Orleans were also bribed and that the Governor’s signature was corruptly obtained.’

Far from promoting the untenable position that the original meaning of the Reconstruction Amendments is “America stands up for the rights of entrenched business interests to poison communal water sources in pursuit of private economic gain,”–a truly indefensible, and to my knowledge non-existent, position–those who believe it is important to recognize The Slaughter-House Cases were wrongly decided do so because it is the vulnerable citizen’s rights that are subverted by powerful special interests and fleeting majorities. The Privileges or Immunities Clause was designed to protect against both.

That is why we believe, unlike the Slaughter-House majority, that the individual butchers and unions should have won, and the politically-well-connected and “entrenched business interests” should have lost.

Economic Liberty?

But this brings us to the second point: even if the Slaughter House Act was more nefarious than appears at first blush, was the Privileges or Immunities Clause really designed to protect an “economic liberty” like a butcher’s right to butcher?

Yes.

The Privileges or Immunities Clause of the Fourteenth Amendment provides that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” In the words of Michigan Senator Jacob Howard during the ratification debates, “[t]he great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

Exploring what would be included among “these great fundamental guarantees,” Justice Willett further noted in his Patel concurrence,

When the Fourteenth Amendment was adopted to counter the Black Codes and other oppressive state laws, the amendment’s author, antislavery Representative John Bingham, confirmed the liberties it protected included “the right to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen and to be secure in the enjoyment of the fruits of your toil.” Cong. Globe, 42d Cong., 1st Sess., 86 app. (1871).

Many have also used Justice Bushrod Washington’s opinion in Corfield v. Coryell as a guide-post for identifying the privileges and immunities of citizens.[1] The most relevant and famous passage provides:

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in conforming these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.[2]

Analyzed in whole, Justice Washington’s passage reveals three sets of liberties constituting “privileges and immunities”: 1) those “which are, in their nature, fundamental,” 2) those “which belong…to the citizens of all free governments,” and 3) those enjoyed by the citizens of the United States since its founding.

Pertinent for present purposes is the first category, “fundamental” rights, which comprises retained natural rights–i.e., those rights we enjoy inherently as humans and that are not surrendered to the government.[3] Natural rights were also historically referred to as “absolute rights,” and they include such freedoms as speech, religion, simply breathing–and, yes, acquiring and making productive one’s own property.[4]

So, in the words of Fourteenth Amendment proponents and drafters, the text they ratified compelled states to at all times respect the fundamental guarantee that one has a natural right–or an immunity from prohibitions on the ability–to work in an honest calling and enjoy the fruits of his or her own toil.

Joe’s response?

Yeah… for black people. The Fourteenth Amendment was about protecting those rights for black people. The scope of its protections may have expanded from the historical moment that gave rise to the Amendment, but the language is not about economic liberty as much as it’s about guaranteeing that people traditionally excluded from economic freedom — like, for example, SLAVES — could access those rights without interference from state governments.

First of all, let’s read this again:

The language is not about economic liberty as much as it’s about guaranteeing that people traditionally excluded from economic freedom…could access those rights.

Do you see it?

The language is not about economic liberty as much as it’s about…economic freedom.

Even as he argues against it, Joe intuits what the Privileges or Immunities Clause makes explicit: states may not exclude citizens from accessing their economic rights–or, stated differently, states may not abridge those rights.

Having unwittingly acknowledged what must necessarily be true, given the history preceding the Fourteenth Amendment, Joe’s only argument appears to be: “Yeah…for black people.”

So, does Joe then think black butchers would have won on the plaintiff’s side of The Slaughter-House Cases? I hope so–the Fourteenth Amendment was designed to protect their economic rights from abridgment by arbitrary legislation, such as that brought on by the bribes of rich investors well-connected to state legislators. But, more to the point, protecting the same rights with the same vigor among all races was the very raison d’être of the amendment.

I’m not sure exactly what to do with this “Yeah…for black people” argument, so let me just say the following.

The Privileges or Immunities Clause unequivocally sought to protect the rights of black Americans, who were being subjugated by Southern states right on the heels of having their dignity as inherently free humans recognized. Indeed, I believe the Privileges or Immunities Clause is imbued with as much or more equality-protection as the Equal Protection Clause.

That the Privileges or Immunities Clause was drafted especially to protect the equality of rights addressed by the Civil Rights Act of 1866, which the Fourteenth Amendment constitutionalized, substantiates the hypothesis that the clause pursues equality as strongly, and yet more broadly, than does the Equal Protection Clause.[5] And that the Privileges or Immunities Clause is “concern[ed] with ‘class’ or ‘caste’ legislation, laws that say which citizens shall have which rights, [is] quite natural…because [such legislation] was exemplified in the immediate target of the Civil Rights Act of 1866 and Section 1 of the Fourteenth Amendment: the Black Codes. The Black Codes generally modified the rights of freed slaves in a straightforward way.”[6]

In other words, the idea that the Privileges or Immunities Clause protects economic rights for some races but not others is wholly contrary to the reasons for and understanding of the words of that provision. As Professor Barnett puts it, in the Civil Rights Act (which, again, the Fourteenth Amendment was drafted to constitutionalize),

Congress identified the civil rights of all persons, whether white or black, as the rights “to make and enforce contracts, . . . to inherit, purchase, lease, sell, hold, and convey real and personal property.”[7]

More directly, the logic is this: “Senator Trumbull made the general principle of equal rights…the basis of the Civil Rights Act itself. Trumbull said of the Black Codes, ‘[A]ny statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty.’”[8] Thus, the modification of rights by the Black Codes was understood by the ratifiers of the Fourteenth Amendment as the modification of “privileges or immunities.”[9] Therefore, when the 39th Congress ratified the Fourteenth Amendment, the Privileges or Immunities Clause specifically was understood to have been embedded with a general principle of equality that would preclude states from passing legislation that conferred or encroached upon citizens’ liberties (or, “privileges,” or “immunities”) unequally.

Even debate over the Ku Klux Klan Act of 1871 reflects the encapsulation of equality for all in the Privileges or Immunities Clause. According to Representative Shellabarger, the clause “secures equality toward all citizens on the face of the law…By that provision equality of legislation, so far as it affects the rights of citizenship, is secured.”[10] Later debates concerning the Civil Rights Act of 1875 clarify nicely that the ratifiers of the Fourteenth Amendment’s Privileges or Immunities Clause understood it to require equality vis-à-vis rights and liberties. Speaking to the Senate, for example, Senator Carpenter said of the Privileges or Immunities Clause, which was the legal foundation for the Civil Rights Act of 1875: “the privileges and immunities of all citizens must be the same. If my privileges are not equal to those of the Senator from Maine, then mine are abridged. This no State can do.”[11]

The Privileges or Immunities Clause, then, embodies the general principle of equality, which, it seems quite self-evidently, excludes no one. This principle of equality attaches to the provision’s protection of a citizen’s economic rights against unreasonable and arbitrary state laws.

As a side note, it is important to recognize that the argument is that the Privileges or Immunities Clause protects a citizen’s economic rights against unreasonable and arbitrary regulation, not that it prevents states from regulating at all. Of course it is true that a state can regulate conduct in the interest of public health and safety. But that was not what was going on in The Sluaghter-House Cases.

No Harm, No Foul

Joe’s final frustration stems from the following:

There’s not a burgeoning effort to overturn the case, and most of the substantive goals of the language have been implemented through other means, so what’s the big deal if a circuit judge wrote an academic paper about it once?

It is certainly true that the vast majority of work that was understood to be done by the Privileges or Immunities Clause at the time of its ratification (and up until The Slaughter-House Cases) is now being done by the doctrine known as Substantive Due Process. In other words, the Due Process Clause of the Fourteenth Amendment now fills the void left by the Slaughter-House Court’s narrow reading of the Privileges or Immunities Clause.

But we have a written Constitution for a reason. We live under a remarkable system of self-government where We the People put in writing what the government may and may not do, and this is essential to preserving and maximizing ordered liberty. Yet more fundamentally, the Due Process Clause simply is not the Privileges or Immunities Clause, and we ought to be careful not to give away specific protections carefully crafted in response to the lessons of a shameful history. As I said, the Privileges or Immunities Clause was intentionally imbued with a sweeping concept of equality of rights and liberties, which may not be identical to what we now get out of Substantive Due Process.

As Ilya Shapiro and Josh Blackman have written on this precise issue,

a commitment to textualism and originalism should not falter when the Supreme Court woefully misreads a clause. Just because the Supreme Court does not protect liberties under the Privileges or Immunities Clause does not mean it should attempt to protect those same liberties under the Due Process Clause—or that it will given a new composition of the Court’s membership.[12]

Just as the Slaughter-House Court’s narrow reading of the Privileges or Immunities Clause sterilized a constitutional provision informed by a history of states trampling the natural rights of an entire group of Americans and designed to protect all citizens from such future encroachments, simply dismissing that the Supreme Court now freely reads into one constitutional provision that which it has stolen from another blatantly hijacks our most unique privilege to govern those who govern us by putting into words what our government may and may not do.

By restoring the Privileges or Immunities Clause to its original public meaning, no longer will scholars have to shoehorn rights and liberties into the Due Process Clause. As Justice Thomas wrote, the Privileges or Immunities Clause
may be used to ‘displace, rather than augment, portions of our equal protection and substantive due process jurisprudence,’ as ‘the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence.’[13]

Perhaps Joe is right about one thing: Tom Sawyer would have loved “the libertarians.” But Rush was definitely right about this: what you say about his company is what you say about society, and society, like libertarian-conservatives, has good reason to prefer judges that adhere honestly to provisions of our Constitution designed to protect the general interests of the many against the special interests of a few.

/crc/

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[1] See McDonald v. Chicago, 561 U.S. 742, 834 (Thomas, J. concurring) (noting that the debates of the Fourteenth Amendment “can be read to support the view that the Privileges or Immunities Clause protects some or all the fundamental rights of “citizens” described in Corfield”).

[2] Corfield v. Coryell, 6 F.Cas. 546, 551–52 (No. 3.230) (C.C.E.D. Pa., 1823). It should be acknowledged that Justice Washington was in this passage considering the “privileges and immunities” contemplated by the Comity Clause of Article IV of the Constitution. But it is well-settled that the ratifiers of the Fourteenth Amendment understood the Civil Rights Act, and thus the Fourteenth Amendment’s Privileges or Immunities Clause, to include, at least, those same rights and liberties contemplated by Article IV’s Comity Clause. See McDonald, 561 U.S. at 832 (Thomas, J. concurring) (noting that Senator “Howard explained that [the Privileges or Immunities Clause] included ‘the privileges and immunities spoken of’ in Article IV, § 2”) (internal citations omitted); Cong. Globe, 39th Cong., 1st Sess., 813 (1866) (Mr. Bingham presented a joint resolution employing the exact phrasing of the Comity Clause: “The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States.”) (emphasis added); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1418 (May 1992) (“Senator Trumbull relied on the standard theory of the Comity Clause, and the positive law notion of privileges and immunities that accompanies it, in explaining the Civil Rights Bill.”).

[3] See U.S. Const. amend. IX.

[4] See William Blackstone, Right of Revolution, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765—1769 (Chicago: Univ. of Chicago Press, 1979) (“By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it.”); see also Barnett, Does the Constitution Protect Economic Liberty?, 35 Harv. J.L. & Pub. Pol’y 5, 7 (2012) (“Today, we would characterize the right to acquire, use, and possess property as ‘economic.'”).

[5] See, e.g., Harrison, supra note 2, at 1397 (“the Privileges or Immunities Clause can be understood as an antidiscrimination provision that grounds the Civil Rights Act”); Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty 60 (rev. ed. 2014) (“The Fourteenth Amendment was enacted to ensure the constitutionality of the Civil Rights Act of 1866 and to prevent future congresses from reneging on its guarantees.”).

[6] Harrison, supra note 2, at 1413.

[7] Barnett, supra note 4, at 8 (emphasis added); Barnett, supra note 5, at 372.

[8] Harrison, supra note 2, at 1411 (quoting Cong. Globe, 39th Cong., 1st Sess., 474 (1866)) (emphasis added). See also ibid. (“The original draft of the Act is even more striking. It began with an explicit ban on race discrimination.”).

[9] See McDonald, 561 U.S. at 813 (Thomas, J. concurring) (“At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.”); Barnett, supra note 5 (“The terms ‘rights,’ ‘liberties,’ ‘privileges,’ and ‘immunities’ were often used interchangeably or in a cluster.”).

[10] Cong. Globe, 42d Cong., 1st Sess. 71 app. (1871) (emphasis added).

[11] Cong. Globe, 42d Cong., 2d Sess. 762 (1872).

[12] Blackman and Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending The Right to Keep and Bear Arms To The States, 8 Geo. J.L & Pub. Pol’y 1, 27 (2010).

[13] Ibid.