Its authors did not interpret the privileges or immunities of citizenship merely as benefits given in exchange for loyalty. Instead, Republicans believed that the primacy of individual liberty was the foundation of all legitimate government, and its fair protection the only basis for the citizen’s allegiance. They believed that when, in 1776, sovereignty was taken from the British crown, it was transferred to the nation as a whole, making Americans primarily members of the new nation and only secondarily citizens of states. At the same time, the sovereignty that was transferred was also recharacterized in accordance with the Declaration’s self-evident truths. It was therefore not the absolute parliamentary sovereignty Blackstone hypothesized, but the limited government described in the Declaration. This was why John Bingham contended that the new amendment would “take[] from no State any right that ever pertained to it.” According to the Republican constitutional theory, “[n]o State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic.”142 States had flouted those principles in the past, leading to “flagrant violations of the guarantied [sic] privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever.”143 The new amendment would provide that remedy by giving the federal government “power . . . to protect by national law the privileges and 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.”144
Slaughter-House’s Errors
Yet resistance boiled under the surface. A war-weary public was increasingly reluctant to enforce civil rights in the South, where states were persecuting freedmen and mobs were rioting and torturing former slaves and their friends. Even in the North, defenders of the old system worked to undermine the new constitutional protections.
One of the most strident of these was Jeremiah Sullivan Black, the Pennsylvania “doughface” who had so fervently endorsed the absolute sovereignty of states in the Sharpless case.145 Black had resigned from the Pennsylvania Supreme Court in 1857 when President James Buchanan appointed him attorney general, and in that position he reiterated his states’ rights views in a magazine article criticizing Illinois Senator Stephen Douglas for taking too moderate a view of state power. “Sovereignty” he wrote, “is in its nature irresponsible and absolute. . . . Mere moral abstractions or theoretic principles of natural justice do not limit the legal authority of a sovereign. No government ought to violate justice; but any supreme government, whose hands are entirely free, can violate it with impunity.”146 After the war, Black continued to argue that the states “were sovereign before they united” and that they retained “all the sovereign rights not granted in the [Constitution to the federal government].”147 The notion that national citizenship took precedence over state citizenship and that states must respect all Americans’ natural or common-law rights was nefariously “inserted in the creed of the abolitionists because they supposed it would give a sort of plausibility to their violent intervention with the internal affairs of the states.”148
Black’s hostility to the principle of paramount national citizenship and to federal efforts to enforce that doctrine through civil-rights laws led him into a personal crusade against Reconstruction. He considered military occupation of the South a travesty on a par with the English occupation of Ireland or the Russian occupation of Poland149 and thought Reconstruction was responsible for an “infamous combination of Yankee and negro thieves who now have the government of the Southern States in their hands.”150 As an adviser to President Andrew Johnson, Black drafted Johnson’s veto of the 1867 Reconstruction Act,151 and after Congress overrode that veto he devoted his legal talents to defeating civil rights legislation in court.152 In such prominent cases as Ex Parte McCardle,153Ex Parte Milligan,154 and Bylew v. United States,155 he challenged federal power to protect civil rights, and he even helped defend Johnson at his impeachment.156
Thus, when he was asked to represent the state of Louisiana in the Slaughter-House Cases, Jeremiah Black saw a unique opportunity to undo Reconstruction. As his fawning biographer acknowledged, the Fourteenth Amendment had “[u]ndeniably” been “written with the deliberate intention to nationalize all civil rights [and] to make Federal power supreme over the States.” But Black sought a way to destroy that provision and “smash the intent of the Radicals.”157 A Supreme Court decision fatally undercutting the amendment’s strength “would leave Louisiana free to deal with Carpetbaggers in her own way as soon as military force should be removed.”158 The states’ rights theory that he would articulate on the state’s behalf was the opposite of the doctrine of paramount national citizenship; indeed, it was precisely the states’ rights theory that Republicans tried to destroy when they drafted the Fourteenth Amendment less than five years before.
The Slaughter-House Cases involved a Louisiana statute that required all cattle slaughtering in New Orleans Parish to be done at a single, privately owned abbatoir, called the Crescent City Livestock Landing and Slaughtering Corporation. Although framed as a sanitary measure, the law put hundreds of small-scale butchers out of business to benefit a single, politically powerful corporation. The butchers sued, arguing that this violated the Fourteenth Amendment’s Privileges or Immunities Clause because it deprived them of their right to earn a living without interference by government monopolies. This right had been a centerpiece of Anglo-American common law for almost three centuries by that time and had long been regarded as one of the basic rights referred to by the phrase “privileges and immunities.”159
Nevertheless, the Court upheld the law in a 5-4 ruling on the ground that, with “few” exceptions, “the entire domain of the privileges and immunities of citizens of the States” was still left to the state governments to enforce, or not, as they saw fit.160 Justice Samuel Miller, who wrote the decision, acknowledged a difference between federal and state citizenship, but he failed to honor the Republican principle that federal citizenship brought with it the whole spectrum of natural and common law rights that for so long had been relegated to state supervision. Declaring that most individual rights still “belong[ed] to citizens of the States as such” and were “left to the State governments for security and protection,”161 Miller’s decision essentially repeated the states’ rights theory that sovereignty and, with it, common law protections for individual freedom, rested primarily with the states, and not the federal government. In other words, the Court embraced the very theory of federalism and citizenship that the amendment was designed to overthrow. Miller denied that the amendment was meant to “radically change[] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,”162 even though that was exactly its purpose: to constitutionalize the Republican doctrines of paramount national citizenship and natural rights.163
The way Miller regarded the Coryell precedent was especially telling. That case had defined the phrase “privileges and immunities” to include the basic rights of citizens of all free governments, and the Fourteenth Amendment’s Framers had used it as a reference point for the rights that they believed federal citizenship also guaranteed. Yet the Slaughter-House Court ignored this innovation, regarding the Coryell list of rights as still “belonging to the individual as a citizen of a State” rather than as a citizen of the nation.164 These rights, the Court proclaimed, “have always been held to be the class of rights which the State governments were created to establish and secure.”165 That may have been true before the Fourteenth Amendment was ratified, but Republicans had always considered that a grave error, and they wrote the amendment to undo the legal precedents that had so confined citizens’ rights. By disregarding the constitutional changes that anti-slavery leaders had wrought, Justice Miller’s opinion perverted the amendment’s model of citizenship. Republi
cans regarded citizenship and protection for individual rights as inseparable, mutual covenants, but after Slaughter-House, Americans owed their primary allegiance to the nation, while their rights were still primarily confided to the care, and often neglect, of the states.
That paradox echoes through Slaughter-House’s most revealing passage: “Was it the purpose of the fourteenth amendment,” asked Miller, “to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?”166 He immediately answered his rhetorical question in the negative. But the real answer was yes—at least insofar as states did not protect those rights. That had been the primary goal of anti-slavery advocates for 40 years. It was the centerpiece of the constitutional argument against slavery and states’ rights, and the culmination of the struggle of people like Joel Tiffany, Frederick Douglass, Charles Sumner, and Salmon Chase. Yet the Court brushed this aside because enforcing a federal check on state power would “degrade the State governments by subjecting them to the control of Congress,” which would be “a departure from the structure and spirit of our institutions.”167 Whatever validity such a concern might have, it was hardly a good reason for denying effect to the amendment’s plain language. As one contemporaneous critic of the decision wrote, “If such was to be the effect of the amendment, it was so because the American people had so decreed, and it was not the province of the court to defeat their will.”168 Moreover, that concern was exaggerated: legitimate state autonomy was not threatened by the amendment’s change to federalism. States still retained most of the routine responsibilities of government, including the protection of individual rights. The amendment simply required states to exercise their power consistently with those rights.
Justice Stephen Field, who dissented in the Slaughter-House Cases, rightly held that the Fourteenth Amendment “recognized, if it did not create, a National citizenship.” The amendment declared that the privileges and immunities of all persons, “which embrace the fundamental rights belonging to citizens of all free governments,” should not be violated by state laws. By ignoring the amendment’s basic premise that “[n]ational citizenship is primary, and not secondary,” Field complained that the Slaughter-House decision had “shorn” the amendment of its power and nullified its promise that all Americans would be protected against abuse by state governments.169
If there were any doubt that the Court had washed its hands of paramount national citizenship, that doubt evaporated two years later when, in United States v. Cruikshank,170 it threw out the federal prosecution of the perpetrators of the Colfax Massacre, the bloodiest of the Reconstruction race riots. On April 13, 1873, coincidentally the very day that the Slaughter-House decision was announced, local government officials in Colfax, Louisiana, descended upon a group of black citizens who had gathered to protest fraudulent election results and brutally murdered about 80 of them. Because the victims had been peaceably assembling to protest grievances, as well as bearing arms and exercising other Bill of Rights freedoms, federal prosecutors charged the officials with depriving citizens of federal privileges and immunities.171 But the Court rejected this argument. The right to petition Congress may be “an attribute of national citizenship . . . under the protection of, and guaranteed by, the United States,” the Court said, but the right to assemble to petition state government was not.172 Likewise, the right to bear arms “is not a right granted by the Constitution,” but a pre-existing common law right not “in any manner dependent upon [the Constitution] for its existence.”173 And while it may be true that “[t]he rights of life and personal liberty are natural rights of man,” and that “[t]he very highest duty of the States” is to protect those rights, “[s]overeignty, for this purpose, rests alone with the States. . . . That duty was originally assumed by the States; and it still remains there.”174 Because the justices held, in accordance with obsolete, pre–Fourteenth Amendment precedents, that most individual rights appertained to state, rather than national, citizenship, the Court advised people to “look to the States” for protection.175 Sadly, this meant that Americans of all races were abandoned to the mercies of the same state governments that were oppressing them—in direct contravention of the intent of the Fourteenth Amendment’s Framers.176
Jeremiah Black’s victory in Slaughter-House warranted his niece’s boast that “the modification and at length the practical abandonment” of Reconstruction “was in no small measure due to the merciless assaults of Judge Black.”177 The Slaughter-House Court’s withdrawal of the protections promised by the Fourteenth Amendment was a calamity for civil rights, and along with similar rulings it prepared the way for what historian Douglas Blackmon calls “a torrent of repression” and the practical reestablishment of slavery.178
After Slaughter-House
Since 1873, the Supreme Court has virtually never enforced the Privileges or Immunities Clause.179 In one case in 1999, the justices did use it to strike down a California law that restricted the welfare payments available to people who moved in from other states, but they stayed carefully within the stifling confines of the Slaughter-House precedent. Writing for the majority, Justice John Paul Stevens acknowledged that legal scholars had “fundamentally differing views” about what rights the clause protects, but he found no need to resolve that question because he concluded that a state law limiting benefits for people who move from other states burdens their right to travel, and even Slaughter-House held that the clause protects that right.180
In the 2010 case of McDonald v. Chicago, the Court was asked directly to overrule Slaughter-House. That case challenged a city ordinance restricting gun possession—only a year after the justices had declared that the Second Amendment bars the federal government from depriving individuals of the right to own guns.181 The Chicago case required the Court to decide whether that right was one of the privileges or immunities of federal citizenship that states, too, must respect. But the justices ducked the question of whether the Privileges or Immunities Clause protected that right, holding instead that “[f]or many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment.” The Court therefore “decline[d] to disturb the Slaughter-House holding.”182 Only Justice Clarence Thomas would have revived the amendment’s full strength.
It is shocking that the Court refused, with no stronger justification, to rectify what an overwhelming consensus of legal scholars on both left and right agree was an embarrassing mistake. It is true that courts have employed the Due Process Clause to protect many of the same rights that the amendment’s authors expected the Privileges or Immunities Cause to protect, but that is no reason to leave a wrongly decided precedent on the books, where it will continue to warp our constitutional interpretations. During the oral argument in McDonald, Justice Antonin Scalia challenged the plaintiffs’ attorney: why bother with the Privileges or Immunities Clause rather than relying on the existing theory of substantive due process?183 But the question misses the point. There can be no better reason for overruling a wrong decision than the fact that it is wrong. Persisting in error simply because it is old is no solution. Nor has the Slaughter-House precedent generated a significant body of case law, as Justice Stevens implied when he said he was unwilling to “dislodge 137 years of precedent.”184 On the contrary, that case so effectively nullified the Privileges or Immunities Clause that even Stevens acknowledged that it has left the clause “a clean slate” ever since.185
The real reason the justices refused to reconsider the question was that doing so would force them to reexamine many of the foundations of the modern regulatory welfare state. Today, state governments intrude on so many of our freedoms and interfere with so many of our choices that courts have had to improvise a set of rationalizations and exemptions to constitutional principles and turn a blind eye to many of the rights that the authors of the Constitution—and of the Fourteenth Amendment—intended to protect. To d
isturb the edifice of today’s intrusive administrative state by rethinking the amendment’s meaning—let alone by taking seriously the ideas of natural rights and the primacy of liberty—would threaten the viability of much of modern government.186 Yet, as one scholar has written, the Constitution’s meaning “will elude us unless we put aside modern conceptions of law and surrender ourselves to the naturalist vision that guided the nineteenth century.”187 The Progressive legal theories that have prevailed in the decades since the New Deal are incompatible with that vision, and the McDonald Court was making clear that it is not willing to face that conflict—at least for now.
The consequence is that state governments continue to enact laws that violate a wide swath of individual rights that the authors of the Fourteenth Amendment meant to shield. By reviving an obsolete conception of states’ rights, the Slaughter-House decision deprived Americans of the amendment’s critical innovation: a federal guarantee against state overreaching. True, state autonomy is sometimes a benefit because it allows states to try different approaches to public problems and keeps political decisions at a local level where officials are more knowledgeable and voters can monitor them more carefully. But the type of autonomy that Slaughter-House endorsed went beyond this healthy notion of federalism, removing the critical counterbalance of federal security promised by the amendment. Although in the years since that decision, federal courts have sometimes protected people against state oppression under other constitutional clauses, they have done so only in a haphazard and confusing way, and some rights—particularly the right to earn a living, or the right to own and use private property—have gone largely unprotected.
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