by Damon Root
The right to acquire and use property was similarly restricted. Opelousas, Louisiana, openly declared, “No negro or freedman shall be permitted to rent or keep a house within the limits of the town under any circumstances.” The same ordinance also prevented blacks from living anywhere in town unless “in the regular service of some white person or former owner, who shall be held responsible for the conduct of said freedman.” As for any would-be entrepreneurs hoping to earn a living in that unwelcoming place, “No freedman shall sell, barter, or exchange any articles of merchandise”41 without written permission from an employer or town official. To put it mildly, such permission was not readily forthcoming from local whites. According to Joseph E. Roy, a white Chicago clergyman who toured the South extensively between October and December 1865 on behalf of the American Home Missionary Society, “A few [white] persons whom I met would admit that [blacks] had the right to acquire property . . . but the great mass of the people were opposed to their having a chance to gain possession of real estate.”42 Overall, Roy reported, “a great many cruelties are practiced on the colored people.”43
Southern blacks readily confirmed Roy’s dismal findings. “A party of twelve or fifteen men go around at night searching the houses of colored people, turning them out and beating them,” one black man testified before Congress in February 1866. “I was sent here as a delegate to find out whether the colored people down there cannot have protection.” They “are willing to work for a living,” he continued. “All they want is some protection and to know what their rights are . . . they do not know whether they are free or not.”44 Richard R. Hill, a former slave living in Hampton, Virginia, knew perfectly well that his old masters were plotting against him. “They have said that, and it seems to be a prevalent idea,” Hill declared. If the whites had their way, Hill said, “their old laws would still exist by which they would reduce [the freedmen] to something like bondage. That has been expressed by a great many of them.”45 Government officials openly expressed that same bigoted agenda. In Florida, the legislative committee charged with preparing the state’s Black Code praised slavery as a “benign”46 institution and announced, “we have a duty to perform—the protection of our wives and children from threatened danger, and the prevention of scenes which may cost the extinction of an entire race.”47
In reality, of course, it was the freedmen who faced danger at the hands of state officials and their vigilante enforcers, a dire situation made worse by the fact that most Black Codes stripped African Americans of their right to keep and bear arms for self-defense. Mississippi, for instance, made it a crime for blacks “to keep or carry firearms of any kind, or any ammunition, dirk, or bowie knife,”48 while Florida made it “unlawful for any Negro, mulatto, or person of color to own, use, or keep in possession or under control any bowie-knife, dirk, sword, firearms, or ammunition of any kind,” unless licensed by a probate judge, “under a penalty of forfeiting them to the informer, and of standing in the pillory for one hour, or be whipped not exceeding thirty-nine lashes, or both.”49
In short, the freedmen were besieged on all sides by hostile government forces that robbed them of their liberty, prevented them from exercising their economic rights, and deprived them of virtually all methods of meaningful self-defense. To say that this state of affairs violated the bedrock free labor principle of self-ownership would be a severe understatement. In the words of Alexander Dunlap, a free black living in Williamsburg, Virginia, in 1866, “We feel in danger of our lives, of our property, and of everything else.”50 Against this backdrop of state-sanctioned violence and exploitation, the Fourteenth Amendment to the U.S. Constitution was born.
“Every Security for the Protection of Person and Property”
On December 5, 1865, the Republican-dominated thirty-ninth Congress was gaveled into session in Washington, D.C. Its first and primary order of business was to put a stop to the mounting outrages occurring in the South. To that end, congressional Republicans pursued a two-front strategy: First, they sought passage of a sweeping federal civil rights bill to protect both the freedmen and their white Unionist allies from abuse by the former Confederates; second, they drafted a new constitutional amendment to give that legislation force and provide further protections for individual rights against harmful state actions. First up was the Civil Rights Act of 1866, enacted in April over the veto of President Andrew Johnson. A groundbreaking proposal, the law held that all persons born on U.S. soil were citizens of the country (thereby repudiating Dred Scott’s holding that blacks could never be citizens), and that such citizens, “of every race and color . . . shall have the same right, in every state and territory . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens.”51 Put differently, state and local governments were required to respect the fundamental rights of all Americans, particularly economic rights, or else be held accountable by federal authorities, including the federal judiciary.
To its opponents the bill looked to be an unprecedented and unacceptable attack on states’ rights. President Johnson said as much in his veto message to Congress, where he denounced the Civil Rights Act as a “stride towards centralization.”52 Democratic Senator Willard Saulsbury of Delaware concurred and raised an even more specific objection. The law would give blacks “every security for the protection of person and property which a white man has,” he complained, including the right of armed self-defense. “In my state for many years,” Saulsbury went on, “there has existed a law of the state based upon and founded in its police power, which declared that free negroes shall not have possession of firearms or ammunition. This bill proposes to take away from the states this police power.”53
Indeed it did. The whole point of the Civil Rights Act was to protect the freedmen (and their white Unionist allies) from mistreatment via the Black Codes and similar provisions, a category of legislation that plainly included the gun control measure so cherished by Senator Saulsbury. The chief question was whether Congress actually possessed the legitimate authority to enforce it. In other words, did the opponents of the Civil Rights Act have a point about its constitutionality?
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.”54 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.”55 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.”56
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.”57 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.”58
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”59 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.”60 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.”61 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”62 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.”63 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.”64
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.”65
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.”66 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.”67
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 q
uestions. 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.”68 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.”69