McDonald v. Chicago: revolution or restoration? (Part 4)

November 20, 2009 | By TIMOTHY SANDEFUR

Author: Timothy Sandefur

(Parts 1, 2, 3)

In the Slaughter-House Cases, the Supreme Court basically erased the privileges or immunities clause from the Fourteenth Amendment. Although that clause prohibits states from depriving us of the “privileges or immunities of citizens of the United States,” the Court ruled that this term only protects a very narrow set of rights, and not, as the authors of the Amendment intended, a broad array of natural rights and common law rights and rights of federal citizenship. In his opinion for the Court, Justice Samuel Miller wrote

up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States…. [Most] of the privileges and immunities of citizens of the States…lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of…civil rights…from the States to the Federal government?

The answer to this question was a resounding yes. That’s just what the Amendment was intended to do. Even a cursory examination of the legislative history behind that Amendment shows that that’s what its authors meant to do. They wanted to create a federal guarantee for individual rights that would protect people against abuse by the governments of their home states. This was obviously vital at a time when people in the south were being tyrannized by racist and corrupt state legislatures. Miller believed that providing this kind of protection would be too radical a transformation of the federalist system, and he therefore refused to abide by it.

Instead, Miller wrote that the Amendment protects only rights “which own their existence to the Federal government, its National character, its Constitution, or its laws.” And quite unlike the authors of the Amendment, Miller believed this was a very short list, indeed. It included the right to travel to Washington, D.C., to transact business with the federal government, the right to protection while sailing on the high seas, the right to use navigable waterways, the right to travel to other states, habeas corpus, the right to assembly, the right to be free of slavery, and the right to vote. That’s it. Not quite what Senator John Sherman had in mind when he was explaining what the privileges or immunities clause would do. Sherman said that the clause would protect

the privileges, immunities, and rights, (because I do not distinguish between them, and cannot do it,) of citizens of the United States, such as are recognized by the common law, such as are ingrafted in the great charters of England, some of them ingrafted in the Constitution of the United States, some of them in the constitutions of the different States, and some of them in the Declaration of Independence.

The privileges or immunities clause was intended to be the most important part of the Fourteenth Amendment: it was to be the primary protection for individual rights under the Amendment. But because Slaughter-House so tightly restricted the list of rights protected by that Amendment—and completely ignored the concept of paramount national citizenship—that decision basically wrote out of the Constitution one of the greatest accomplishments of nineteenth century judges (and, I might add, one of the greatest accomplishments of classical liberal political philosophy).

What were the effects of Slaughter-House? That decision was the first of a series of decisions—by the Court as well as by Congress and several presidents—to abandon ambitious plans for post-Civil War Reconstruction. By 1877, federal troops had left the South, and southern states were basically allowed to do as they pleased with former slaves and northern interlopers. It would be another century before serious progress toward civil rights was made in this country. The most infamous of Slaughter-House’s progeny was United States v. Cruikshank, in which the Court relied on the earlier decision when throwing out a lawsuit by victims of the Colfax Massacre. Local officials assisted in a murder spree that left over 100 black Louisianans dead, but the Court shut down the prosecution on the grounds that the right not to be murdered, or even the right to possess firearms, were not rights “which own their existence to the Federal government, its National character, its Constitution, or its laws,” and therefore were left unprotected by the (all too appropriately named) Slaughter-House decision.

There was a masterful dissenting opinion in the Slaughter-House Cases, and we’ll look at that in our next installment.