Privileges and Immunities
I was thinking out loud about the way Justice Scalia twisted himself into a textualist pretzel in Heller explaining why militias have nothing to do with the right to keep and bear arms, despite the fact the Second Amendment explicitly name-checks them. Perhaps the need to ignore militias is related to the Supreme Court’s pugnacious adherence to the notion that nothing about gun rights changed between the 1790s and the 1860s.
The court’s insistence that the right to keep and bear arms was understood in precisely the same way after the Civil War as it had been after the Revolutionary War is anomalous because it runs against the central premise of originalism: that meaning naturally changes over time in ways we don’t recognize.
It’s also antithetical to the history. Justice Alito himself wrote in McDonald v. City of Chicago, the case that incorporated the Second Amendment against states:
Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.
You’re so close, Justice. Militias delivered the fledgling republic from certain destruction at Concord and Bunker Hill. Then they tried to kill it at Fort Sumpter. When Americans incorporated the Second Amendment against the states, they certainly didn’t intend to retain its deference to state militias.
Why does the court cling to a tortured interpretation when the answer is right under their noses? I suggested that the Supreme Court, excepting a brief blip during the Warren Court years, is unreconstructed to this day.
What I mean is that the court fails, or perhaps stubbornly refuses, to fully account for how the Reconstruction Amendments revolutionized the constitutional order. As a result, the court undercuts its originalist pretensions by anachronously insisting that nothing of serious consequence transpired between the Revolution and the Reconstruction.
Sadly, the court’s propensity in this regard is not just obvious, it’s infamous. The court kneecapped the Reconstruction Amendments right from the jump, starting with the Slaughterhouse Cases in 1873, in which the court held that the Fourteenth Amendment’s Privileges and Immunities Clause does not protect fundamental rights, or really anything at all.
The Privileges and Immunities Clause states:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
It was through privileges and immunities, and not due process, that the Reconstruction Congress intended to apply substantive rights, enumerated and unenumerated, against states. As I have previously discussed, due process is procedural and not substantive. “Substantive” due process is an anachronistic oxymoron. In mid Nineteenth Century vernacular, “privileges and immunities” corresponded with what we would today call individual rights.
In the Slaughterhouse Cases, though, Justice Miller held that the privileges and immunities clause does not protect substantive rights.1 To do so, he reasoned, would undermine federalism by granting the federal government sweeping authority to override state laws in order to secure individual rights. Never mind that upending the relationship between the states and the national government was precisely the point of the Fourteenth Amendment.
In the follow on case, U.S. v. Cruikshank, the court explicitly held in 1876 that the Privileges and Immunities Clause does not authorize the federal government to enforce the Second Amendment. The right to keep and bear arms is a privilege or immunity of state, not national, citizenship, the court said, and thus enforceable only by states.
Yet hardly ten years later, the court abruptly changed course and began applying the Fourteenth Amendment to strike down state laws that it said infringed fundamental rights. Having only just got done reading the Privileges and Immunities Clause out of the constitution, the court needed another vehicle to accomplish this. The court fixed upon the Due Process Clause, and over the course of the so-called Lochner Era developed what would come to be known to a later generation as the doctrine of substantive due process, in order to federally enforce rights against states.
Why the change of heart?
The Gilded Age was an era of rampant industrialization driven by rapacious robber barons. The Progressive Movement emerged in reaction to the excesses of unregulated industry. Progressives sought to wield the sword of state power to regulate for the public health, safety, and welfare. They began enacting laws that regulated markets to protect workers, consumers, society, and the environment.
Meanwhile, the court decided in 1886 that corporations are persons too, in the Fourteenth Amendment sense. And they had rights, rights like freedom of contract, that needed protection against state laws that interfered with their business activities.
So when the persons in question had been primarily freed black people, the paramount concern was state power. Now that the persons were corporations, it was corporate power.2 Until their corporatist reign of terror was finally ended decades later by FDR, the court struck down innumerable public health, safety and welfare laws during the Lochner era that they said violated property and contract rights protected by Fourteenth Amendment substantive due process.
I previously wondered why the court has chosen to protect individual rights under the counter intuitive rubric of substantive due process when more textually plausible alternatives like the Ninth Amendment and the Privileges and Immunities Clause are available.
History provides the answer. The court reasoned itself into a corner in the Slaughterhouse Cases and subsequently regretted it. Then they retconned due process to supply the substantive rights they had previously said weren’t there.
So what does the Fourteenth Amendment’s Privileges and Immunities Clause cover? The right to “come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions … [and to] become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that State.” Cool story.
Perhaps I’m being unfair, or at least overly simplistic. After all, the plaintiffs denied their privileges and immunities in the Slaughterhouse Cases were white businessmen. And yet, in Cruikshank the court sanctioned the wholesale slaughter of freed people by the Klan on the supremely spurious contention that there wasn’t sufficient proof the murders were racially motivated. In the course of which, they paused to add that the federal government could not even enforce the right of freed people to arm themselves against lynch mobs.