[Kurt Lash, guest-blogging] Why Slaughterhouse was right: The textual limits of the Privileges or Immunities Clause

May 9
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The Slaughterhouse Cases is one of the most despised decisions in American constitutional law.  Scholars commonly describe the case as eviscerating the Privileges or Immunities Clause and closing the door on incorporating the Bill of Rights against the states. Neither assertion is true. In fact, Justice Miller’s opinion is remarkably consistent with the original understanding of the Privileges or Immunities Clause, including the incorporation of the Bill of Rights.

This is the last in a series of posts discussing my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Prior posts on the historical understanding of the Privileges or Immunities Clause can be found here, here, here, and here.  In this last post, I’ll discuss the surprising correctness of The Slaughterhouse Cases.  I’ll also use the case as an illustration of the likely maximum and minimum scope of the Privileges or Immunities Clause.

In Slaughterhouse, a group of Louisiana butchers challenged the state’s recently enacted slaughterhouse monopoly.  Among other things, the butchers claimed that the monopoly abridged their right to exercise a trade thus violating the newly ratified Privileges or Immunities Clause of the Fourteenth Amendment. Writing for the majority, Justice Samuel Miller rejected their claim.  Unlike the unenumerated state-secured “privileges and immunities of citizens in the several states” that are provided equal protection under the Comity Clause, the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” protects only those rights that “owe their existence to the Federal government, its National character, its Constitution, or its laws.”  Because the right to pursue a trade was not a right secured at a national level, it was not among the privileges and immunities of national citizenship protected by the Fourteenth Amendment.

Miller’s refusal to nationalize the unenumerated subjects of local municipal law fits well with what we know about the original understanding of the Privileges or Immunities Clause.  As prior posts have explained, the language of the Clause had its roots in antebellum treaties that secured constitutionally enumerated rights—rights altogether different from the state-secured rights receiving a degree of equal protection under the Comity Clause.  The men who introduced this Clause to the 39th Congress described it as protecting enumerated constitutional rights, and the public that debated the Clause described it the same way.  Had anyone proposed language that nationalized common law rights in the states, their effort would have been quickly and easily defeated by moderate and conservative Republicans in the 39th Congress.

Unenumerated rights advocates might argue that, although the framers did not expect the Clause to nationalize unenumerated rights, their “expected application” of the Clause cannot change the meaning of otherwise open-ended language.  This move, however, is not available in the case of the Privileges or Immunities Clause.  Unenumerated rights theories rely heavily on the idea that the Privileges or Immunities Clause is actually based on the language of the Comity Clause, and that clause was capable of broad application due to the fundamental rights language of the Comity Clause case Corfield v. Coryell.  We now know that the Fourteenth Amendment is not based on the language of the Comity Clause.  Indeed, it was to avoid the open-ended implications of Comity Clause language that Bingham abandoned his first draft and replaced it with a version using the familiar language of national treaties.  Without the “help” of Corfield and the Comity Clause, the unenumerated rights argument regarding vague or “open-ended language” has no purchase.

So what are the Privileges and Immunities of national citizenship? Daniel Webster described them as including those rights that “are recognized or communicated by the Constitution of the United States; such as are common to all citizens, and are uniform throughout the United States.”  The abolitionist Joel Tiffany wrote that rights of national citizenship included “all the guarantys of the Federal Constitution for personal security, personal liberty, and private property” including liberties listed in the first eight amendments and the “privileges of the great writ of Liberty,” habeas corpus. Jacob Howard described the privileges and immunities of American citizenship to include constitutionally enumerated rights such as those protected under the Comity Clause and the Bill of Rights.  John Bingham insisted that the privileges and immunities of citizens of the United States included “all the limitations for personal protection of every article and section of the Constitution.”

All of these descriptions point in the same direction: The rights of national citizenship are those personal rights enumerated in the federal Constitution.

The historical record is not so complete and fine-grained (at least not yet) that we can create a closed list of those enumerated provisions that count as enumerated personal rights.  On the other hand, given the repeated descriptions of the Clause as protecting rights listed in the first eight amendments, these rights could be viewed as establishing the textual floor for the Privileges or Immunities Clause. Even Justice Miller in Slaughterhouse conceded that protected Privileges or Immunities included the First Amendment rights “to peaceably assemble and petition for redress of grievances.”  At a minimum, the Privileges or Immunities Clause should be read to include the Bill of Rights as exemplifying the rights of national citizenship.  There are almost certainly others, including the equal protection rights of the Comity Cause, habeas corpus rights, and other enumerated liberties.  The Bill of Rights simply provides an easily identified beginning in the exploration of constitutionally enumerated personal rights.

Embracing this meaning of the Privileges or Immunities Clause would not require overruling Slaughterhouse.  Although commonly viewed as rejecting incorporation of the Bill of Rights, Miller’s opinion tilted towards incorporation by including First Amendment rights in his eclectic list of national privileges or immunities.  The dishonor of reading enumerated rights out of the Privileges or Immunities Clause falls to a later case, United States v. Cruikshank–a decision handed down as the North abandoned Reconstruction.   It is Cruikshank that deserves repudiation, not Slaughterhouse.

In Closing

Over the course of five separate posts, I have discussed the historical evidence surrounding the original meaning of the Privileges or Immunities Clause.  The text and history of the Clause strongly suggest that the privileges and immunities of American citizenship are those enumerated in the federal Constitution.  These were understood to include everything from the absolute liberties of the federal Bill of Rights to the equally protected state-secured rights of the Comity Clause.  What they do not include are unenumerated absolute rights, whether libertarian (economic rights), conservative (parental rights) or liberal (personal autonomy rights).  Unless derivable from a separately enumerated right, all of these matters are left to the political deliberation of the people in the several states.  There may be good reason to protect unenumerated rights under certain theories of justice or prudential considerations of stare decisis.  None of these reasons, however, involve the original meaning of the text.

The history presented in these posts has focused almost exclusively on events and discussions preceding the adoption of the Fourteenth Amendment.  I imagine this will disappoint some readers.  Nevertheless, I believe it is historically perilous to rely on post-adoption testimony if the goal is to recover the original meaning of a constitutional text.  That said, my book does discuss post-adoption debates such as those surrounding the so-called Blaine amendment.  Suffice here to say that I see nothing in these events that calls into question the abundant evidence we have of pre-ratification understanding.

For now, I’ll close by emphasizing that there is no Pandora’s Box awaiting the Supreme Court should it decide to revisit the Privileges or Immunities Clause.  The rights of American citizenship are easily identified.  They are listed in the people’s Constitution.

My sincerest thanks to Eugene Volokh and all the crew at the Volokh Conspiracy for graciously giving me this chance to blog about my book!

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