Timothy Egan in the NY Times recently sighed at the lack of reasonable discussion on immigration policy.  Agreed (sigh).  I also agree with the general conclusion to which he offers a nod.  But, there are some premises on display in Egan’s arguments, echoed in other immigration discussions, that I don’t accept.  He reported that in states with new, strict immigration laws, migrant workers had disappeared from fields and farmers couldn’t reap what they’d sowed:

Meanwhile, jobs go begging: in Alabama, which passed the nation’s harshest anti-immigrant law; in Georgia, where the governor suggested using convicts to work in the fields after 11,000 jobs went unfilled; and in the orchards of Washington, where the flow to the far north has diminished mainly because of the recession.

Well then, why not hire only people with full citizenship? One farmer in Colorado, John Harold, tried doing just that, hoping to fill harvest positions with jobless locals looking for extra cash. But as my colleague Kirk Johnson reported, many of those locals did not last even a full day; they complained of the hard work in the onion fields of Colorado.

The problem, through good times and bad, is that there are millions of jobs that Americans will not do. The solution, some combination of path to citizenship with guest worker programs, should be within the grasp of the better political minds.

A reasonable conclusion from this premise is that we should allow immigrant to perform work that, if not by law than by some social or physical prohibition, consists of conditions too treacherous for American citizens. Rather than addressing those conditions, we should let these folks seeking citizenship do it. So, before laws improved the conditions of factory jobs from, say, what we read about in Sinclaire’s The Jungle, it would have been appropriate to allow Russian folks to die in those factories that were too treacherous for Americans.

I cannot accept that conclusion.  Rather, there are only two morally appropriate conclusions that, in turn, allow fairly straightforward responses:

1) The work is too treacherous for anyone to perform.

Thus: The farm work should be better regulated.  If work is not safe enough for Americans it is not morally appropriate to benefit from such work from non-Americans, and it is especially inappropriate to allow Americans to facilitate such work.

2) American citizens are too weak or snobbish to perform perfectly acceptable and available work.

Thus: Social norms need to adjust toward acceptance and appreciation of farm work.  If people seek unemployment benefits where farm work is available, they should be required to accept the work or not accept benefits if that work is otherwise within whatever parameters the unemployment folks set out.

As for immigration policy, it should be reasonable and be enforced.  So, regarding those not already in the country, we should debate the policy for entrance.

One last premise with which I disagree: the conflation of immigration and deportation policies.

Immigration policy is different than deportation policy.  So we should also have a clear headed deportation debate.  My proposal: folks that are are fairly established in the country should be allowed to seek legal citizenship if willing to do so.  In that respect, I agree with Timothy Egan’s conclusion while disagreeing with the premise.

At the end of a tort trial, the amount of money that a liable defendant must pay to the plaintiff does not arrive from thin air.  In many types of cases, in fact, an entirely distinct trial occurs to detemine the amount due – so that issue does not cloud the initial detemination of liability.

There are three general concepts we use to determine what the liable defendant ought to pay the plaintiff.  Some damages are pretty easy to quantify – with things like doctor bills, repair bill, and so forth we can pretty easily figure out the monetary hit that the plaintiff suffered.  Other things are not so easy to quantify.  If a “house” husband or wife is so severely wounded because of a battery tort that the person is permanently disabled, we have nothing with which to determine lost wages.  How should that person be compensated for having to spend, say, the rest of life in a wheelchair or subject to psychological trauma?  Centuries of common law have dealt with these damages using various names like “general,” “hedonic,” or “non-economic” damages.  It is in this category that we find things like damages for pain and suffering, diminished quality of life, and other hard-to-quantify problems.

General damages, being intangible, are tough to calculate.  My guess is that this is a part of damages with which a person feels the least sympathy until  he is a plaintiff saying, for instance, but for such and such defendant’s negligence, I would still be able to walk/work/whatever.  I don’t have a vested interest one way or the other on how these intangible damages are calculated; whether, for instance, juries award huge or pitiful quality of life compensations.  But, because non-economic, general damages tend to pop up in political discussions about lawyering, such damages are the subject of much of the illogical and intellectually dishonest one hears during “tort reform” discussions.

I have one request for those discussions: be consistent.  I get the need to have some legal and normative debates about how the law should deal with non-economic damages.  But that discussion shouldn’t change based on the type of defendant on trial.  Diminished quality of life should not result in one amount of damages because a mechanic’s actions crippled a plaintiff, but another thing because a doctor’s actions caused the crippling.

I mentioned above that separate trials can be held for causation/liability and for damages, as those are distinct issues.  It may be people’s conflating of these issues that causes the logic-lapses in medical malpractice discussions.  Usually, when I make the above request, the response is a barrage of reasons that, in the medical context, it is uniquely difficult to know whether a doctor was to blame, and that people sue easily because they do not want to accept death, and so on.  The barrage is usually entirely true, but totally irrelevant to a discussion of damages.

Causation, in the medical context, is difficult to determine; which is why that part of a medical malpractice is treated entirely differently from other tort cases.  The manner in which we find doctors liable or not liable for injury is, like all of the common law of tort, an ever-valid debate.  But that debate ought be held in another room so as to make less cacophonous the other debate about non-economic damages.

Treating the issues separately, as they ought to be, might even make it a bit easier for the earnest folks debating malpractice insurance premiums and health care costs; the former, of course, contributing a whopping 2 percent to the latter.

Anyway, for an example of the either confusion or intellectual dishonesty I’m griping about above, see North Carolina Senate Bill 33.  The bill limits non-economic damages in certain emergency care situations to $250,000; which is fine, by my argument, if every other tort claim in the state had a non-economic limit of $250,000.

Jamelle Bouie, at The American Progress, posted a while back on a recent Report on the problems of judicial elections.  Bouie emphasized two problems: (1) raising money for elections, and the pressure to be reelected might affect decisions; and (2) because judicial elections are not high-profile, voters are unable to make sound, informed decisions.
First, electing judges runs counter to the American idea of an independent judiciary; elections requiring fundraising, and it’s extremely difficult for a judge to appear impartial if — as a candidate — he must appeal to special interests and outside groups for cash and support. Moreover, appearance aside, fundraising influences judicial decisions; donors can pressure judges to support certain rulings in the same way that they pressure legislators to support certain legislation. …
But even if you could insulate elected judges from campaign pressures, you would still have to deal with the fact that judicial elections just aren’t that important to most voters. To most voters, judicial elections — even high profile elections for state Supreme Court seats — are a blip on the display, at least compared to congressional and presidential elections. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don’t have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and few barriers to bad behavior; as the study details, campaign donors can donate huge sums of money without attracting much attention from voters or officials.
In the end, the study’s authors look approvingly at growing support for public financing in judicial races, but a better solution would be to just remove state judiciaries from direct involvement in elections. The idea of elected judges is nice and Jacksonian, but it’s incompatible with our ideas about judicial fairness and independence. Either we stop electing judges, or we just accept the fact that elected judges will look out for their constituents as much as they will apply the law.
First, some counterpoints on the details.  Regarding campaign money, it would certainly be a problem if a judge decided a case based on received or potential campaign contributions.  However, if campaign financing is transparent, a case turning on campaign contributions should be easily overturned and, come the next election, that should be an easy issue for the opposing judge to run on.  That may seem naive, but it is to point out that the risk of campaign contributions is not be a fundamental problem for elections.
Regarding voter knowledge, I don’t have any actual data on votor knowledge regarding judges, but my hunch is to agree that folks don’t research judge condidates nearly as much as they do the governors, state legislators, and federal candidates.  However, I also strongly doubt that the same amount of voters do not base their votes for governors and Presidents on the judges that that official might appoint.  At least with direct elections, the possibility exists that voters could research, and hold accountable, such judges directly.  On the one hand, most folks blindly hand the decision to an executive that will, no doubt, appoint with some partisan slant.  On the other hand, folks pull a lever for a judge based on the (D/R) next to the name or some other combination of factors resulting from the local electioneering.
More generally, I have long wrestled with the manner with which we place judges on the bench.  North Carolina attempts to avoid some of the campaign cash-related problems with public financing for judicial elections.  But, as the TAPPED post maintains, we should still ask whether it is better to have elected or appointed judges.
My gut reaction is usually to oppose judicial elections for the exact reasons pointed out by Ms. Bouie.  But, there are some rubs to the alternative of appopinted judges.
To be appointed, the appointee needs to, in one way or another, have some ideological or political relation to the appointer.  Sure, for high courts, a governor or President can pick from the legal all stars (though, of course there too, the appointer is looking for an idealogical fit).  But imagine a governor choosing trial and appealate judges in a state without judicial elections.  As my career fair judge suggested, that process is not occur in a pure judisprudential meritocracy.  It is polical just as surely as elections.
The prime benefit to appointed judges is that, once appointed, the judge is presumably more free to rule based on the facts and the relevant laws without outside pressures of reelection, if his character is inclined to do so.  I can think of two counterpoints to that: (1) A judge not facing reelection pressures can still decide cases based on factors other than facts and laws; it is, arguably, impossible to prevent a third factor, the judge’s ideological presumtions, from affecting the outcome. (2) There is nothing fundamentally making it impossible for voters to elect based on, and judges to run on, being good judges that rule based on facts, laws, and an intellectually honest judicial approach.  If it were thus, elections would offset any problems associated with overly-politicized appointments and unhinged, ideological judges.
I’m still undecided; the point here is to flesh out the drawbacks of appointments because, like I said, that is what my gut prefers.

Virginia has taken a regrettable step back from the direction of human dignity.  But the media folks are blaming the wrong person.  They, and the folks protesting, need to shift their ire away from Attorney General Cuccinilli and towards Governor Bob McDonald.

Here’s a Washington Post headline from this weekend: “Virginia attorney general to colleges: End gay protections.”  And here’s the Huffington Post (the internal link is to the WaPo article: “As anyone who cares about human rights in America should know by now, Ken Cucinelli [sic], Virginia’s Attorney General, has “urged the state’s public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation….”

From Charlottesville’s NBC local news: Gay rights supporters met at UVa, “in response to a letter from the state attorney general that would dramatically change discrimination rules – or protections – for gays and lesbians on grounds.”

From Richmond’s Times Dispatch: “Students and faculty urged Virginia Commonwealth University administrators this morning to take a strong stand against Attorney General Ken Cuccinelli’s opinion that gays cannot be included in state anti-discrimination policies.”

The protections that Cuccinelli ripped to shreds, according to the news, are not his to make or destroy.  The letter was an advisory opinion.  Back in 2006, the prior Attorney General opined, also, that protections against state agencies hiring or firing based on sexual orientation were unconstitutional.  But I don’t recall reading news stories about that 2006 advisory opinion, because no one cared (because, in turn, the executive had no interest in enforcing it).

Flash back to the Washington Post circa 2005:

RICHMOND, Dec. 16 — Gov. Mark R. Warner (D) on Friday quietly amended an executive order that for the first time explicitly bans Virginia state agencies from discriminating against gays in hiring and promotions.

The policy went into effect immediately, and a spokeswoman for Gov.-elect Timothy M. Kaine (D) said the incoming governor plans to continue the policy by signing the same executive order when he is inaugurated Jan. 14.

And back to 2010.  Shortly after his inauguration, Governor McDonald decided to discontinue the protections against gayscrimination in state agencies, and stripped those provisions from the prior two Democratic administrations’ executive order.  One ought seen that coming, as McDonald was the 2006 Attorney General that opined the protections unconstitutional in the first place.  As Cuccinelli’s Advisory Opinion notes:

In 2006, this office concluded that the addition of sexual orientation as a protected employment class by way of an executive order of the Governor was intended to, and did, alter the public policy of the Commonwealth.

In both 2006 and 2010, the Attorneys General were offering an opinion on the state of Virginia law relating to protections, within state units, for gay workers against discrimination.  The legislature, then nor now, did not place those protections within the State’s statutes, so the question is whether the Governor can create those rights with an executive order.  The difference between this 2010 letter and the AG’s letter from 2006 is that the Governor’s and Attorney General’s offices agree.

Virginia’s colleges and universities are, as AG Cuccinelli’s assailed letter describes, state government institutions.  What, though, is the scope of authority that college boards (in VA, the “Boards of Visitors”) have in setting out rules and regulations for the college?  It’s a legitimate legal question, and falls in with the old chestnuts of administrative and local government law: who tells these government units what to do; how much discretion do these government units have; and, to what degree of specificity must authority derive from the legislature or executive?

Those are decent legal questions for discussion.  And that is what the AG’s letter is about.

In late 2005, then Governor Warner made the decision to incorporate gays within the State’s anti-discrimination rules despite the legal uncertainty.  That decision is what initiated those protections and sparked headlines.  Now, it should be the current Governor’s decision to rescind those protections in the headlines.

Professor Balkin has a post up today that brings to mind some recent posts here. Balkin argues that the lawyers in the McDonald case yesterday might have argued for overturning Cruikshank rather than Slaughterhouse.  Balkin’s description of federal and state rights as set forth in the 14th Amendment will be a relief after my own stab at that.  And on the problems that led to Cruikshank, see my quick review of Lane’s book on the matter.

I noted, a bit ago in the media bias post, my inclination towards NPR.  As to why, I submit Laura Sullivan’s report today during All Things Considered on the economics of prisons and bail.  Really a solid piece of journalism.

They are here because they can’t make bail — sometimes as little as $50. Some will wait behind bars for as long as a year before their cases make it to court. And it will cost taxpayers $9 billion this year to house them.

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.

Some context…

…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.

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