The Country Thinker

Jus­tice Samuel Miller, who wrote the major­ity opin­ion for the infa­mous Slaugh­ter­house Cases

Thoughts on Law, Mar­tin Luther King Day Edition

Last Mon­day I dis­cussed The Wall Street Journal’s inter­view with Insti­tute for Jus­tice Pres­i­dent Chip Mel­lor, and I said that two things jumped out at me as impor­tant to dis­cuss. The first—the need for judi­cial engagement—I cov­ered then. The second—the sig­nif­i­cance of the Priv­i­leges or Immu­ni­ties Clause of the 14th Amend­ment for pro­tect­ing per­sonal and eco­nomic liberty—I will cover today.

When I first read Mellor’s empha­sis on the Priv­i­leges or Immu­ni­ties Clause (“P/​I” Clause), I though to myself: “huh?” Even though I had two semes­ters of Con­sti­tu­tional Law in law school (along with Florida Con­sti­tu­tional Law), passed the Florida Bar, prac­ticed for 2–1/2 years, and have been a casual Con­sti­tu­tional stu­dent for years, I knew almost noth­ing about the P/​I Clause. (It reads: “No State shall make or enforce any law which shall abridge the priv­i­leges or immu­ni­ties of cit­i­zens of the United States.”)

What I knew was this: The Priv­i­leges and Immu­ni­ties Clause is in Arti­cle IV, whereas the Priv­i­leges or Immu­ni­ties Clause is in the 14th Amend­ment. Nei­ther plays any sig­nif­i­cant role in Con­sti­tu­tional jurispru­dence, so dur­ing my prepa­ra­tion course for the multiple-​​choice Mul­ti­state por­tion of the Bar, I was instructed never to choose either as an answer.

So to get myself up to speed I watched to fol­low­ing video from the Insti­tute for Justice:

If you don’t want to watch it, let me give you a brief sum­mary. In the early 1800s the Supreme Court held that the P&I Clause (as well as the Bill of Rights) did not apply to the states. After the Civil War, many south­ern states enacted harsh laws to restrict the per­sonal and eco­nomic lib­er­ties of newly-​​freed blacks, such as for­bid­ding them from own­ing guns, or open­ing cer­tain types of busi­nesses. One state (the movie doesn’t say which) required freed­men to obtain writ­ten per­mis­sion to leave their property.

“Rad­i­cal Repub­li­cans” con­trolled Con­gress at the time, and they passed the 14th Amendment—which con­tains an Equal Pro­tec­tion Clause and a Due Process Clause as well as the P/​I Clause—to ensure that all Amer­i­cans, includ­ing “freed­men” were pro­tected equally under the law, and to apply the Bill of Rights to the states.

In 1873 in the infa­mous Slaugh­ter­house Cases, the Supreme Court for all intents and pur­poses repealed the P/​I Clause, hold­ing that it only applied against the states in very lim­ited cir­cum­stances, such as pro­tect­ing the right to nav­i­gate on fed­eral water­ways. So the Supreme Court con­cluded that the Bill of Rights did not apply against the states, and prej­u­di­cial laws were con­sti­tu­tion­ally per­mis­si­ble. The Slaugh­ter­house Cases paved the way for Jim Crow Laws; pre­cisely the sort of unjust leg­is­la­tion the 14th Amend­ment was sup­posed to prevent.

(You can see why I added the sec­ond half of the title. But for the Slaugh­ter­house cases, many of the ele­ments of seg­re­ga­tion would not have with­stood con­sti­tu­tional scrutiny, and the Dr. King-​​led Civil Rights move­ment would, at the very least, been sub­stan­tially smaller in its scope. Con­se­quently, we might not be cel­e­brat­ing his life today if the Court had got­ten it right in 1873.))

Since that time, the Court has attempted to make up for the Slaugh­ter­house Cases one step at a time through the con­found­ing and scat­ter­shot doc­trines of Sub­stan­tive Due Process and Incor­po­ra­tion. The result has been incon­sis­tent and unpre­dictable jurisprudence.

Let me add a lit­tle addi­tional analy­sis beyond the video itself. Nor­mally we think of Due Process as relat­ing to judi­cial processes, par­tic­u­larly in the crim­i­nal sys­tem. Sub­stan­tive Due Process, how­ever, is the notion that leg­isla­tive bod­ies can­not infringe on fun­da­men­tal rights with­out suf­fi­cient rea­son for the inter­fer­ence. In other words, the leg­isla­tive process must be “due” or “fair.” Roe v. Wade and Lawrence v. Texas are exam­ples of famous Sub­stan­tive Due Process cases of our life­times. So yes, the Court uses the Due Process Clause of the 14th Amend­ment to declare newly-​​protected fun­da­men­tal rights. (I’ve always thought the 9th Amend­ment was a cleaner avenue for declar­ing newly-​​protected rights, but that idea was shot down long ago.)

Incor­po­ra­tion is jurispru­dence through which the Supreme Court “incor­po­rates” the Bill of Rights against the states one piece at a time—even though the 14th Amend­ment was intended to apply the Bill of Rights to the States lock-​​stock and bar­rel. Most, but not all, of the Bill of Rights pro­tects us against state action.

(As a side note, how many mil­lions of bill­able hours for lawyers have resulted from the Court’s sloppy 14th Amend­ment jurispru­dence? I often won­der whether the Court does half the things it does to make sure their bud­dies at the big law firms and spe­cial inter­est groups have lots of work.)

So you can see why the Slaugh­ter­house Cases are so despised by liberty-​​lovers such as the folks at the Insti­tute for Jus­tice. Gut­ting the P/​I Clause not only was an affront to lib­erty, the Supreme Court has cre­ated a jurispru­den­tial quag­mire while try­ing to walk it back. It came then, as no sur­prise when I dis­cov­ered that the Cato Insti­tute and Rea­son mag­a­zine have also pub­lished arti­cles advo­cat­ing for the rein­state­ment of the P/​I Clause.

On the one hand, I think the P/​I advo­cates have a good point. It is a fun­da­men­tal rule of Con­sti­tu­tional, statu­tory, and con­tract inter­pre­ta­tion that no clause should mean either every­thing or noth­ing at all. So we know that those who think the Inter­state Com­merce Clause gives Con­gress unlim­ited dis­cre­tion to pass leg­is­la­tion are wrong; it can­not mean every­thing. We also know that the Slaugh­ter­house Cases are also wrong for inter­pret­ing the P/​I Clause to mean essen­tially noth­ing. (I say the same about the 9th Amend­ment, but no one’s lis­ten­ing yet!)

If the P/​I clause were res­ur­rected it could be an effec­tive tool for pro­tect­ing indi­vid­ual lib­er­ties. Keep­ing to its lim­ited areas of prac­tice, the Insti­tute for Jus­tice would love to have the P/​I Clause as a weapon to pro­tect entre­pre­neurs from prej­u­di­cial leg­is­la­tion, and i wish they would get it.

But there is a tiny prob­lem. In real­ity the Court hasn’t warmed up to the P/​I Clause. As the IJ video notes, in the case McDon­ald v. Chicago, Jus­tice Clarence Thomas in his con­cur­ring opin­ion was the lone voice who said the case should be resolved on P/​I grounds. (Any sur­prise that Clarence Thomas was the one who stood up as the most pow­er­ful advo­cate for liberty?)

So I agree that the P/​I Clause needs to be res­ur­rected, and I hope IJ and oth­ers keep ask­ing the Court to do so. But it doesn’t look like that’s going to hap­pen any time soon.