Overruled (4 page)

When the Constitution was first modified in 1791 to include the batch of amendments known to us today as the Bill of Rights, the various protections spelled out in the first eight of those amendments, such as freedom of speech and the keeping and bearing of arms, were understood to apply solely against the federal government, not against the states. The language of the First Amendment was quite explicit on this point. “Congress shall make no law,” it begins, thereby leaving state legislatures free to censor the press or establish their own religions, as some did, including several slaveholding states that made it illegal to possess abolitionist literature. Other states basically duplicated various phrases from the Bill of Rights in their own state constitutions. The point is that it was up to the states themselves to make that determination, without federal oversight. The Supreme Court reinforced that original understanding in the 1833 case of
Barron v. Baltimore,
where Chief Justice John Marshall held that the Bill of Rights “must be understood as restraining the power of the General Government, not as applicable to the States.”
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On top of that, it was widely understood that each state possessed significant regulatory authority of its own, known as the police powers, to protect the health, welfare, and safety of all persons within its borders. Leaving such extensive power solely in the hands of the states was part of the original system of American federalism.

So it was by no means a legal certainty in 1866 that Congress possessed the lawful power to protect civil rights from infringement by
state and local officials. Congressional Republicans divided unevenly over the question, with most believing they did enjoy the power to enforce the Civil Rights Act (particularly given the outcome of the late war), while a few prominent skeptics argued otherwise. Foremost among the skeptics was Ohio Representative John Bingham, a skilled lawyer and member of the congressional Joint Committee on Reconstruction. His qualms led him to draft Section One of the Fourteenth Amendment. Among other reasons, Bingham knew that the proposed amendment would guarantee the constitutionality of the 1866 Civil Rights Act.

The Meaning of the Fourteenth Amendment

“When John Bingham arrived in Congress,” observed one legal scholar, “he brought with him the idealistic goals of northern Ohio Republicans and their abolitionist, Liberty Party, and Free Soil predecessors, who had been fighting for racial equality for the previous three decades.”
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The Fourteenth Amendment was the fruit of that long fight. “No State,” it declares, in language written by Bingham, “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.” As Bingham would tell the House of Representatives in his final speech in support of the amendment in May 1866, its purpose was to provide a check against the “many instances of State injustice and oppression,” referring to the Black Codes and similar restrictions, and “to protect by natural law the privileges or immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.”
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To understand the meaning of what Bingham wrote in the Fourteenth Amendment—indeed, to understand the meaning of any constitutional provision—it's necessary to look at both the text in question and the history surrounding it. As we've seen, the historical events that produced the Fourteenth Amendment include the rise of the antislavery movement, the free labor principles that movement espoused, the outrages perpetrated after the Civil War under the Black Codes and other discriminatory state laws, and the desire of antislavery Republicans such as Bingham to correct those postwar injustices while simultaneously enshrining the free labor philosophy as the supreme law of the land.

That's the history. What about the text? In addition to granting U.S. citizenship to all persons born on American soil (with a few exceptions), the Fourteenth Amendment contains three principal clauses designed to protect individual rights: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. Of those three, it was the first one, the Privileges or Immunities Clause, that was supposed to do the lion's share of the work. But a question immediately arises: What are the privileges and immunities of a U.S. citizen?

The short answer is that they are the same sort of individual rights that have long been associated with the Declaration of Independence, the Constitution, and the natural rights philosophy that shaped both documents. According to the legal scholar Michael Kent Curtis, author of the leading Fourteenth Amendment history,
No State Shall Abridge,
the text of the amendment must be understood “in light of the anti-slavery crusade that produced it.”
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For Congressman Bingham and his Republican allies, the paramount goal was securing civil rights for all Americans, regardless of color, against abusive state governments, while at the same time returning the Constitution to its original purpose as “a document protecting liberty.”
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To that end, Bingham relied on language widely associated with the natural rights tradition of American constitutionalism. As Curtis documented in his study, “the words
rights,
liberties,
privileges,
and
immunities
seem to have been used interchangeably”
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in political and legal writing throughout America and Britain in the eighteenth and nineteenth centuries. James Madison and other founders, for example, frequently treated the words as synonymous. In his 1789 speech proposing the addition of the Bill of Rights to the Constitution, Madison referred to “freedom of speech” and “rights of conscience” as the “choicest privileges of the people.”
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The famed English jurist William Blackstone endorsed a similar reading in his influential 1765
Commentaries on the Laws of England,
where he referred to “privileges and immunities” as a mix of liberties and rights. As Curtis explained, Blackstone “had divided the rights and liberties of Englishmen into those ‘immunities' that were the residuum of natural liberties and those ‘privileges' that society had provided in lieu of natural rights.”
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In other words, immunities are natural rights while privileges are civil rights.

What then are the rights and liberties (privileges and immunities) of a U.S. citizen? As a guidepost, Bingham and other framers of the Fourteenth Amendment pointed to Supreme Court Justice Bushrod Washington's influential 1823 Circuit Court opinion in
Corfield v. Coryell,
in which he remarked that “it would perhaps be more tedious than difficult to enumerate”
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the full extent of the privileges and immunities secured by Article Four, Section One of the Constitution, which reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.” Nonetheless, Justice Washington went ahead and specified a few, including, “Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” In short, things that “are, in their nature,
fundamental; which belong, of right, to the citizens of all free governments.”
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Justice Stephen Field later drew on that same language in his 1873
Slaughter-House
dissent, in which he too spoke of the rights belonging “to the citizens of all free governments.”
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At a minimum, then, the privileges and immunities of citizens were understood by Bingham and his colleagues to include the rights to own property, to make contracts, to testify in court, to bring lawsuits, and to enjoy personal security, all of which are found in both
Corfield
and in the Civil Rights Act of 1866. But that was not the end of it. According to Republican Senator Jacob Howard of Michigan, who introduced the Fourteenth Amendment in the Senate and spearheaded its passage through that chamber, while the full extent of the privileges and immunities of citizenship “cannot be fully defined in their entire extent and precise nature” (thus paraphrasing
Corfield
), they certainly include “the personal rights guarantied and secured by the first eight amendments of the Constitution,” including the right to freedom of speech, the right to keep and bear arms, and the right to be free from unreasonable search and seizure. As Howard told the Senate in a widely reprinted speech, “the great object of the first section of this amendment is . . . to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”
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Similar arguments were made as state lawmakers gathered to vote on the Fourteenth Amendment's ratification. In Pennsylvania, for example, one Republican welcomed the proposed amendment as a victory for those who favored securing “civil rights to every individual born in the land” over those “opposed to giving this security to civil liberty and civil right.”
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Opponents of ratification often expressed that same understanding of the amendment's meaning—indeed, that was the whole reason they opposed it. According to one critic in New Hampshire's ratification convention, the Fourteenth Amendment
represented “a dangerous infringement upon the rights and independence of the states.”
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To summarize, the text of the Fourteenth Amendment, the historical context that shaped it, and the statements of support made by those who drafted it, voted for it, and ratified it, all point in the same direction: It was designed to make state and local governments respect a broad range of fundamental individual rights, including both those rights spelled out in the Bill of Rights and those economic liberties essential to safeguarding the principles of free labor.

Which brings us back to
The Slaughter-House Cases
of 1873, where the Supreme Court rejected this textual and historical evidence on every count. What happened?

“A Vain and Idle Enactment”

Slaughter-House
presented the Supreme Court with two related questions. First, what's the proper scope of state regulatory power? And second, what's the meaning of the Fourteenth Amendment? In his decision for the majority, Justice Samuel F. Miller answered both questions after first adopting a posture of judicial restraint. The state of Louisiana enjoys broad regulatory powers, he argued, and the federal courts have no business getting in the way. To hold that the Privileges or Immunities Clause somehow now prevented Louisiana from granting a private corporation the exclusive contract to run a big city slaughterhouse “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,” a result Miller could not and would not abide. It would make the Supreme Court “a perpetual censor upon all legislation of the States.”
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Instead, Miller argued, the Privileges or Immunities Clause protected only a very narrow (and for the most part inconsequential) set of federal rights, such as the right to access federal waterways and the right to visit the seat of the federal
government. The independent slaughterhouse operators of New Orleans were out of business and out of luck.

Justice Stephen Field challenged Miller on every point. In a long dissent joined by three other members of the Court, including Chief Justice Salmon P. Chase, a veteran antislavery lawyer and former treasury secretary under President Lincoln, Field made the case for the Supreme Court as a chief guardian of individual liberty under the Fourteenth Amendment. There is no doubt, Field began, that the state of Louisiana possesses a legitimate police power that “extends to all regulations affecting the health, good order, morals, peace, and safety of society.” But the slaughterhouse law in question did not fit that bill. As Field saw it, the Louisiana statute contained “only two provisions which can properly be called police regulations.” One required that all slaughtering be performed downstream from the city, so as not to pollute the water supply; the other required that all animals be inspected before slaughter. Those two regulations passed muster. The rest of the law, however, “is a mere grant” of special privilege to a private corporation “by which the health of the city is in no way promoted.”
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Field then took aim at Miller's ahistorical reading of the Fourteenth Amendment. Citing a range of evidence, including the controversy over the Black Codes, the congressional debates over the Civil Rights Act and the Fourteenth Amendment, and Justice Washington's influential opinion in
Corfield v. Coryell,
Field maintained that the Privileges or Immunities Clause did in fact place substantive limits on state power, such as requiring lawmakers to respect the civil rights of all Americans. “Clearly among these,” he wrote, “must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.”
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Yet, thanks to Miller's cramped reading, Field observed, the Fourteenth Amendment had been reduced to “a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people upon
its passage,”
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an outcome Field found ludicrous in light of the evidence plainly before him.

It was a strong dissent, firmly rooted in the text and history of the Fourteenth Amendment—but it was still a dissent. Louisiana and its corporate partners won the case. The Supreme Court had declared the Privileges or Immunities Clause to be dead on arrival.