January 15, 2014

Jeremiah Black and the wrecking of the Fourteenth Amendment

By Jeremiah Black and the wrecking of the Fourteenth Amendment

The first Supreme Court case to interpret the Fourteenth Amendment was the 1873 Slaughter-House Cases, in which a group of Louisiana butchers challenged the constitutionality of a state law requiring that all slaughtering be done at a single, privately-owned abattoir. They argued that this law deprived them of the right to earn a living without the interference of government-created monopolies—a right recognized by English and American courts since the early seventeenth century, and that was among the “privileges or immunities” the new Amendment secured against state infringement. Unfortunately, the Court ruled against them, and essentially erased the Privileges or Immunities Clause from the Constitution.

Much has been written on the various things Slaughter-House got wrong. But my focus in chapter 2 of The Conscience of The Constitution is on how that decision ignored the central purpose of the Fourteenth Amendment. The Amendment was designed to implement the anti-slavery constitutional vision of paramount national citizenship. That conception, derived from the principles of the Declaration of Independence, held that national citizenship took priority over state citizenship; that natural and common-law rights of all Americans were secured to them by virtue of their national, not their state, citizenship; that all deserved federal protection against interference by state governments. The Amendment would deal the death-blow—so its authors hoped—to the antebellum States Rights ideology which held that state governments were sovereign; that their sovereignty was not bound by the principles of the Declaration; that states possessed, in William Blackstone’s words, “supreme, irresistible, absolute” power to do “anything that is not naturally impossible.” The anti-slavery constitutionalists believed this States Rights model had always been an incorrect reading of the Constitution; their new Amendment would settle the question once and for all.

One of the leading spokesmen for the States Rights model was a prominent “doughface” Democrat

Read the rest at The Volokh Conspiracy.

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