It is conventionally understood that the Supreme Court’s Slaughterhouse decision destroyed the most straightforward route with which Congress could protect the fundamental rights of American citizens: the 14th Amendment’s privileges and immunities clause. The Supreme Court decided Slaughterhouse in 1873, shortly after the states ratified the 13th, 14th, and 15th Amendments. To protect rights after Slaughterhouse, goes the conventional understanding, Congress had to resort to the far less straight-forward vehicles of the commerce clause (as in the 1964 Civil Rights Act); and courts had to invent substantive due process (as in Lochner and Roe). (I’ve tacked the amendment’s first section over to the right for reference.)
Indeed, if a federal legislator wants to destroy Jim Crow, that legislator would surely prefer legislating with a Constitutional provision forbidding any state laws that “abridge the privileges or immunities of citizens of the United States”; rather than with (as in 1964) a clause allowing you to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Alas, Slaughterhouse squashes Constitutional common-sense reasoning; you must put aside the knife to carve a turkey with scissors (themed analogies).
I re-acquainted myself with that problem recently. Several amicus briefs for McDonald v. Chicago, the gun-rights incorporation case up this term, argue that the 14th Amendment’s privileges and immunities clause is the proper avenue for the Court to apply the second amendment to the states, and that the Court should overturn Slaughterhouse. The Volokh Conspiracy has been aflutter, as many contributors are libertarian minded, gun-right advocating, legal academics. And then I happened to read, “The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation,” in which Professor Huhn passionately recites the familiar line that “the Court practically eviscerated the Privileges and Immunities Clause of the 14th Amendment.”
At some point, in reading the briefs, that paper, the 14th Amendment, and the Slaughterhouse majority and dissents, I found myself agreeing more with Justice Miller’s Slaughterhouse majority opinion than with the legal academics, and contrarianism is at least worth exploring when it feels right.
How did Slaughterhouse do so much harm?
Critics of Slaughterhouse write that Justice Miller’s wrong result resulted from wrongly distinguishing state and federal citizenship. Justice Miller, they say, ignored the hierarchy of citizenship that the 14th Amendment created: that, we are primarily federal citizens, and secondarily state citizens. Then, he placed most fundamental rights – like the freedom to earn an honest living, that was at issue in Slaughterhouse - in the realm of rights deriving from state citizenship, a realm of rights not protected by the 14th Amendment.
From the Heritage Foundation:
The citizenship clause defines both federal and state citizenship, making them not separate as the majority in Slaughterhouse concludes, but one derivative of the other – state citizenship a necessary result of federal citizenship. Accordingly, all of the privileges or immunities one possesses as a federal citizen include the privileges or immunities one gains as a citizen of a state.
From the Cato Institute’s brief in McDonald v. Chicago:
…[the] central error [in Slaughterhouse] is that the Court ignored the Amendment’s underlying premise: namely, a revolution in federalism that placed national authority over state autonomy and protected a wide array of national rights against state governments.
From Professor Huhn:
[T]he straightforward language of the 14th Amendment … made state citizenship secondary to national citizenship. …Slaughterhouse … turned that unmistakable hierarchy on its head ….
So, Miller’s misreading of he 14th Amendment’s scheme of citizenship led to his failure to conclude that the 14th Amendment allows the federal government to protect fundamental rights. Let’s look at the text of the 14th Amendment that Justice Miller so slaughtered:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States ….
Justice Miller quite rightly read the 14th Amendment’s distinction of state and federal citizenship.
This is my understanding of the 14th Amendment in regards to citizenships and the privileges and immunities clause: The amendment begins by addressing the federalism at the heart of the Nation and the struggle at the heart of the then recent Civil War – that we are nationally and locally political beings; and each person (including ex-slaves) is a citizen of the Nation and their state (a direct overturning of Taney’s Dred Scott).
The amendment assures that each U.S. citizen enjoys a threshold of fundamental rights. States can create more rights, but cannot encroach those fundamental rights. The 14th Amendment does not create a hierarchy of citizenship – a person is both a citizen of her state and of the U.S., and, for purposes of the 14th Amendment, one citizenship does not trump the other. Finally, the 14th Amendment does not create a federal scheme of enforcement against private behavior; its first and fifth clauses are directed at Congress’s ability to control state action.
The real problem in the decision is that Justice Miller wrongly wrote that fundamental rights derive mainly from state citizenship. As expanded upon below, I think he did this short-sightedly. But, contrary to the observers I’ve read, the rights-landscape that Miller created in Slaughterhouse does not destroy the ability of subsequent Justices to base fundamental rights from federal privileges and immunities.
And, importantly, Miller’s distinction of state and federal citizenship is a useful continuation of the slightly mysterious federalist nature (like a holy duality) of the United States that we have pondered since 1787.
…is useful, in light of the racist motivations sometimes attributed to Justice Miller’s Slaughterhouse opinion. (My guess is that a lot of folks confuse the case with Dred Scott.)
The Slaughterhouse Cases resulted from a Louisiana law, descriptively titled, an “Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company.” The legislation was not innovative—several big cities consolidated slaughtering companies to get their cholera inducing byproduct out of the water supply.
Former Justice John Archibald Campbell argued the case for the Butchers’ Benevolent Association, and did so within a larger legal program to frustrate Radical Reconstruction. (We mentioned, a while back, Charles Lane’s book on a sibling case, Cruikshank. Also check Michael Ross’s Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign Against Louisiana’s Republican Government, 1868-1873.) To cast a deserved shadow on Campbell, note that, in his Justice days, he joined the majority in Dred Scott.
The 13th, 14th, and 15th amendments, among other things, incorporated former slaves into full, American citizenship. Campbell used the new amendments in his arguments for the(white) butchers – perhaps deliberately overusing the arguments based on the new amendments to water them down, or at least firmly extend their coverage to those not newly enfranchised. He argued that the slaughtering monopoly resulted in involuntary servitude (banned by the 13th Amendment), and he used every possible bit of the 14th Amendment to argue against the process inadequacy, liberty deprivation, and unequal protection of the Louisiana statute.
Justice Miller’ s response to Campbell’s arguments, in his Slaughterhouse opinion, insisted that the 14th amendment must be understood in light of the civil war and was primarily written to protect former slaves’ privileges and immunities. One can easily imagine the decision as an attempt to shut Campbell up.
Justice Miller’s Opinion
Professor Huhn argues that the Slaughterhouse majority rejected the plaintiff’s claim that “the right to earn a living at an honest occupation – although a fundamental right, was not a ‘privilege or immunity of national citizenship’ within the meaning of the 1th Amendment.” His cite is to the opinion, 83 U.S. 36, 73-74.
On those pages, Justice Miller discussed the first lines of the amendment, and their impact on citizenship. It seems to me, though, that Justice Miller was endorsing the notion that the amendment corrected Dred Scott.
But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.
To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” …[I]t overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.
Miller then notes that the next paragraph (the privileges and immunities clause), “which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.”
This section of the opinion does not decide whether the right to earn a livelihood is one based on federal or state citizenship; it simply makes the correct point that the privileges and immunities clause protects a set of rights that are enjoyed by U.S. citizens.
…Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.
This conception of distinct sets of federal and state rights does not strike me as a rights-reducing proposition leading necessarily to Jim Crow . Rather, Miller’s reading creates a federalist scheme of rights wherein states can expand upon the threshold national rights enjoyed by every U.S. citizen. So, if a state’s population decided to ordain particular freedoms, it could so do; so long as the state does not subtract national privileges and immunities.
Professor Huhn writes that, “[i]n placing state citizenship over national citizenship, the Slaughterhouse Court reflected the view of John C. Calhoun.” (p4 of the linked copy) The Calhoun quote that Huhn quotes is from 1833; Calhoun was discussing the Article IV privilege and immunities clause, and dismissing the notion of federal citizenship. The Slaughterhouse dissent also picked up the quote.
If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.
In Dred Scott, the Court embraced Calhoun’s view of citizenship. Slaughterhouse clearly divorced the Court from that stance. So, it cannot be that Slaughterhouse‘s fatal flaw is it’s embrace of Calhounian, state-centric citizenship. Miller stressed that the 14th Amendment made U.S. citizenship a reality – you are a citizen of the state and of the union; and you carry with you, wheresoever you go among those states, your U.S. citizenship and the federal privileges and immunities.
In its search for a clearly delineated federal set of privileges and immunities, the majority opinion is correct.
Substance, not structure
The Slaughterhouse Cases did not create a structural impediment to federal protection of fundamental rights via the 14th Amendment’s privileges and immunities clause. The opinion did not reverse the 14th Amendment’s hierarchy of citizenship because the 14th Amendment did not create a hierarchy of citizenship.
Rather than a structural problem, Slaughterhouse presented a substantive problem over just what are federal privileges and immunities. That problem does not require overturning Slaughterhouse to spur the privileges and immunities clause into action. Rather, courts can determine that, as says Huhn, “Americans have both the right and the moral duty to protest fundamental injustice anywhere in the United States, because these are matters of national citizenship, not state citizenship.” (at p7 of my copy)
Justice Field’s dissent in Slaughterhouse was correct in clarifying that the 14th amendment did not create or define any privileges; rather, it “assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.”
But I don’t think the dissent was correct (nor the scholars since) in concluding that the majority confined the federal set of privileges and immunities to those that existed “ before [the 14th Amendment’s] adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States.”
Field believed that the majority’s opinion mooted the founder’s work; “that a vain and idle enactment, which accomplished nothing.” But this forgets Dred Scott, which surely the drafters had in mind when crafting that first sentence. The majority clearly embraced that purpose.
So, what are the federal privileges and immunities?
This is where the action ought be for scholars and courts: what privileges and immunities have a national nature? Slaughterhouse did not provide a litmus test for federal rights. The majority looked at “privileges and immunities” clauses in the Articles of Confederation and Constitution, and in antebellum precedent. This is where the majority might have seen trees rather than a forest, and where Miller might have let his desire to quash Campbell’s right-to-earn-a-living claim cloud his vision of the larger intended impacts of the 14th Amendment.
The original privilege and immunities clause’s “sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”
Which is to say, treat outsiders at least as well as you do your own.
…the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
The 14th Amendment does not transfer rights-protection duties, and I agree with Miller’s hesitancy in establishing the federal government as the sole arbiter of rights. But he wrongly confines fundamental rights to state citizenship. It ought, though, to be possible for a Justice to determine that fundamental rights now arise from National citizenship; or, even, that the fundamental right arises from both, and the federal government can enforce against states that deprive citizens of those rights. Further, the 14th Amendment does not state that the federal government can only protect those privileges and immunities existing after the Civil War. It seems to me that a privilege might derive from federal-citizenship now that did not in 1877; and that the Court could so find, within the scheme set out in Slaughterhouse.
Justice Miller, somewhat amusingly, looked into certain privileges that had a federal nature at the time of his decision – things like 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.” In 1873, one could argue that was the narrow scope of our fundamental rights; at the time, the concept of incorporation of the Bill of Rights was still formative. But, as our federalism has evolved, it seems natural that the rights associated with state and federal citizenship would likewise evolve. There is nothing, anyway, in Slaughterhouse, preventing that.