February 26, 2010

Revive 'privileges or immunities'

By Revive 'privileges or immunities'

Author: Timothy Sandefur

The National Law Journal has published my editorial on McDonald v. Chicago, just in time for the oral arguments on Tuesday. Excerpt:

One of the biggest cases the U.S. Supreme Court will decide this year involves the right to bear arms. But in the long run, its decision in McDonald v. Chicago may be far more important to America’s entrepreneurs. It all depends on whether the justices decide to revive a constitutional provision it has neglected for more than a century.

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the “privileges or immunities” of citizens, or taking anyone’s life, liberty or property without “due process of law,” or depriving people of the “equal protection of the laws.” But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England’s highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or “privileges and immunities” — in the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment’s language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were “left to the State governments for security and protection.”

Read the rest.

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