Lost Clause Mentality: The Debate Over The Privileges or Immunities Clause
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
The Fourteenth Amendment to the Constitution of the United States
I: Prologue
On April 14th, 1873 the Supreme Court of the United States handed down their decision in The Butchers' Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company, better known as the Slaughter-House Cases. The decision, though relatively unknown today, is arguably one of the most important moments in American legal history.
At the center of the case is a dispute over a law passed by Louisiana, which closed all slaughter houses in the New Orleans area, except for one that would be controlled by the city. Butchers of the New Orleans area sued, saying that the law violated their rights under the 13th and 14th amendments. [1] Specifically, they claimed that they had been deprived of the right to not be forced into involuntary servitude (13th Amendment) and that they had been denied equal protection, liberty and property without due process, and their privileges or immunities protected under the 14th Amendment. [2]
Though they claimed violations of their rights under the 13th and 14th amendments, the impact of the Slaughter-House Cases is generally understood to primarily be a 14th Amendment case.
II: Miller’s Agonistes
In an opinion written by Justice Samuel Miller, the Supreme Court ruled that the 13th and 14th Amendments did not apply in this case–ruling against the butchers. In the view of Justice Miller (and the majority), the 13th and 14th amendments were intended to prevent discrimination against formerly enslaved African-Americans. Operating under this assumption, Miller concludes that since the butchers are not formerly enslaved African-Americans, they are not protected by the 13th and 14th amendments. Slaughter-House Cases, 83 U.S. 36, #37-38 (1872). Most importantly, Miller states that the privileges or immunities clause of the 14th amendment only protects rights relating to national citizenship. Slaughter-House Cases, 83 U.S. 36, 80 (1872). Miller lists some of these rights, including the right to access seaports, access to subtreasuries, the right to peaceably assemble, and petition for redress of grievances. Slaughter-House Cases, 83 U.S. 36, 79-80 (1872). Since the Court’s decision in Slaughter-House, the privileges or immunities clause of the 14th Amendment has been seldom, if ever, used in a way that contravenes Miller’s interpretation.
III: Miller’s Malcontents
Simply because Miller’s interpretation of the privileges or immunities clause remains the most widely used, does not mean that it is widely accepted. Since its very inception, Miller’s interpretation of privileges or immunities has come under blistering assault. In his Slaughter-House dissent, Justice Stephen Field lambasted Miller’s privileges or immunities interpretation, saying that Miller’s theory would leave the privileges or immunities clause, “...a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Slaughterhouse Cases, 83 U.S. 36 (1872) (Field, J., dissenting). According to Field, if Miller’s interpretation of privileges or immunities is true, it would mean that the Congress and the American people ratified a redundant amendment.
Lest we mistakenly think that Miller’s critics have quieted down over the centuries, we need only turn to Justice Clarence Thomas, who has made a sport of assaulting Miller’s privileges or immunities interpretation. In a footnote to his dissent in Saenz v. Roe (1999) Thomas writes, “Legal scholars agree on little beyond the conclusion that the [privileges or immunities] Clause does not mean what the Court said it meant in 1873.” Saenz v. Roe, 526 U.S. 489, 522 n.1 (1999) (Thomas, J., dissenting). In his concurrence in McDonald v. City of Chicago (2010) Thomas writes, “I reject that understanding [of privileges or immunities]. There was no reason to interpret the Privileges or Immunities Clause as putting the Court to the extreme choice of interpreting the “privileges and immunities” of federal citizenship to mean either all those rights listed in Corfield, or almost no rights at all.” McDonald v. City of Chicago, 561 U.S. 742, 852 (2010) (Thomas, J., concurring).
Miller’s interpretation has also been challenged by historians, notably by Eric Foner, a historian of the American Civil War and Reconstruction. In his widely lauded work Reconstruction: America's Unfinished Revolution, 1863–1877, Foner writes that Miller’s conclusions, “should have been seriously doubted by anyone who read the Congressional debates of the 1860s.” [3]
IV: Miller’s Missionaries
Despite the intense criticism of Miller’s handiwork in Slaughter-House Cases, he nonetheless does have his defenders. In a 2024 paper for the University of Pennsylvania Journal of Constitutional Law, Lawrence Lessig (a professor at Harvard Law School) defends the Slaughter-House Cases, arguing that they are a foundational example of judicial restraint. [4] Lessig defends Slaughter-House on the grounds that if the dissenting Justices had gotten their way, “it would have certainly opened the floodgates to endless litigation.” [5] In Lessig’s view, Miller’s decision was not an intentional sabotage of the privileges or immunities clause, rather it was an effort to prevent the judiciary from being inundated with cases, and potentially using those cases for activist ends. [6]
Another defense of Miller’s work is that Miller was acting to protect the power of the “reconstructed, biracial legislature of Louisiana,” presented by Timothy S. Huebner, a historian of the American South at Rhodes College. [7] Huebner argues that Miller might have feared the ramifications of the butchers’ argument, especially because the attorney for the butchers–John A. Campbell–was a former Confederate officer. In Huebner’s view, Miller was acting to prevent the creation of another tool that white southerners could use to combat Reconstruction. [8] Huebner provides further defense of Miller by arguing that even if Miller’s constructions of privileges or immunities was insufficient to protect the rights of African-Americans, Miller added a fail-safe when he declared that the right of African-Americans to vote was protected by the privileges or immunities clause. [9]
V: Epilogue
The Privileges or Immunities Clause of the 14th Amendment has caused much consternation for scholars of the Constitution. At first glance, the clause would appear to be a near perfect vehicle for the courts to protect the rights of American citizens from government intrusion, but that interpretation of the Privileges or Immunities Clause was effectively wiped from the map in the Slaughter-House Cases. Precisely why there has been a consensus among legal scholars that Slaughter-House was wrongly decided. However, given the fact that the Slaughter-House Cases remain good law, any discussion of the accuracy of Miller’s ruling in Slaughter-House will remain largely theoretical.
Sources
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
Ibid.
Eric Foner, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: HarperPerennial, 2014), 530.
Lawrence Lessig, The Brilliance in Slaughterhouse: A Judicially Restrained and Original Understanding of "Privileges or Immunities", 26 U. Pa. J. Const. L. 1 (2024).
Ibid.
Ibid, 26-27.
Timothy S. Huebner. (2016). Liberty and Union . (Lawrence, Kansas: University Press of Kansas), 396.
Ibid.
Ibid, 397.