The Dispatch: The Supreme Court Can Fix Its Oldest Mistake This Year

Ursula Newell Davis

Ursula Newell-Davis has been a social worker in New Orleans for more than 20 years with a particular passion for special needs children (including her own), so she knows special needs families are often desperate for affordable and reliable respite care. It allows parents time to work, run errands, or just attend to themselves, confident that their kids are safe with someone qualified to help. In 2019, Newell-Davis tried to open her own business providing that care, but the state of Louisiana said no.

Since 2021 she has been locked in a civil rights lawsuit, arguing that the regulation keeping her from her calling is unconstitutional. She has lost in the lower courts and recently petitioned the Supreme Court of the United States for review, where we are representing her. For her to prevail, the court will have to reconsider a clause in the 14th Amendment it has largely ignored since 1873.

The state freely admits that Newell-Davis is qualified to provide respite care services. But in Louisiana, a regulatory scheme called “Facility Need Review” makes opening a respite care business illegal unless a committee of four health department officials decides that the offered services are “needed.” The state has no objective standards for determining a community’s “needs” but instead relies on what administrative agency bureaucrats believe to be true about a given area. The state contends limiting the number of respite care workers makes it easier for regulators to pay more attention to existing providers, which “self-evidently” benefits the public.

Not true, says one New Orleans foster mother who signed a declaration attesting to the local need for Newell-Davis’ care. She “urgently sought out respite services” and spent “hours on the phone trying to reach a live person and left countless messages, only to never receive a response back.” She found a system of “extremely limited options[,] wholly inadequate” to provide consistent service. For a time, she was able to get assistance from Newell-Davis.  But without reliable help, she lost jobs and could not continue to pursue permanent custody of the child.

Newell-Davis’ lawsuit charges that the state is restricting her rights in violation of the 14th Amendment’s Privileges or Immunities Clause, which states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Lower courts dismissed the claim on the grounds that the clause doesn’t protect the right to earn a living in a lawful occupation.

That would have surprised Rep. John Bingham, the principal drafter of Section 1 of the 14th Amendment. Bingham said in 1871 it was aimed at (among other things) securing “the liberty … to work in an honest calling and contribute by your toil … to the support of yourself [and] your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

“Privileges or Immunities” is an admittedly opaque phrase, but contemporaneous records and scholarship today agree that it encompasses a vast array of fundamental rights secured by the common law, the Bill of Rights, and the 1866 Civil Rights Act. It was emphatically intended to knock down state legal barriers to earning a living, so vital to the millions of former slaves claiming their freedom to work for themselves. However, in the words of Harvard constitutional scholar Laurence Tribe, the clause was “improperly gutted” in the first case to come before the Supreme Court to enforce it: the Slaughter-House Cases (1873). The lower courts in Ursula’s case ruled that they were bound to follow suit.

At issue in Slaughter-House was a monopoly granted by Louisiana over the right to run a slaughterhouse in New Orleans. Independent butchers sued, demanding an end to the monopoly because it abridged the economic freedom protected by the Privileges or Immunities Clause.

They won in the lower courts but, in a controversial 5-4 decision, the Supreme Court reversed. It ruled that the clause guaranteed only a narrow set of rights, like access to seaports, the right to assemble, and federal protection on the high seas. Freedom to pursue a lawful occupation was not among them. Three separate dissents condemned the court’s opinion for turning the 14th Amendment on its head. Justice Joseph Bradley decried the failure to secure the “right of any citizen to follow whatever lawful employment he chooses to adopt.” Justice Noah Swayne complained that the court’s decision permitted an “indefensible invasion of the rights of many for the benefit of a few.” Justice Stephen Field’s dissent bitterly lamented that the decision would make the Privileges or Immunities Clause “a vain and idle enactment, which accomplished nothing.”

It is hard to overestimate the damage that followed from the court’s sidelining of the Privileges or Immunities Clause. In the years after, advocates and the judiciary worked with the Equal Protection and Due Process of Law clauses, sometimes bending or stretching them to rule in favor of justice or individual rights. That has long subjected the court to criticism of overreach, yet it was also not enough to cover huge gaps in the defense of liberty.

The day after Slaughter-House was decided, for instance, in Bradwell v. Illinois (1873), the court rejected a Privileges or Immunities challenge to rules that prohibited married women from practicing law. Nearly a century passed before the court broadly halted paternalistic sex-based legal preferences as a matter of equal protection in Reed v. Reed (1971).

Removing the Privileges or Immunities Clause from the arsenal of civil rights also left no backstop against the most vicious forms of racial discrimination when Equal Protection or Due Process doctrine failed. Equal protection precedent allowed state-enforced racial segregation, as in the infamous Plessy v. Ferguson (1896), shielding and encouraging pervasive white supremacy. That was not reversed until nearly 100 years after the enactment of the 14th Amendment with Brown v. Board of Education (1954) and the 1964 Civil Rights Act.

There were some civil rights victories during the period: The court struck down a West Virginia law that denied blacks the right to serve on juries, and affirmed the right of those of Chinese descent to establish businesses. But Slaughter-House took the Privileges or Immunities Clause out of action when it was desperately needed. It could have protected the rights of black individuals to start businesses, travel freely, or bear arms—all of which its drafters intended—forcing an earlier confrontation between state-supported discrimination and the 14th Amendment.

The problem, however, is more than merely historical. Without correction, continuing to treat the clause as a dead letter prevents the court from improving or maintaining protection for neglected or endangered civil rights today.

Most relevant to Newell-Davis is the right to freely pursue the lawful occupation of one’s choice. In Slaughter-House itself, dissenting Justice Stephen Field celebrated the right of every person to equally pursue “all professions, all avocations” as the “distinguishing privilege of citizens of the United States.” In an early Due Process challenge to an occupational license, Dent v. West Virginia (1889), the court described it as “the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose.”

Modern jurisprudence continues to recognize that right. In Board of Regents v. Roth (1972), for instance, the court noted a vital “right of the individual … to engage in any of the common occupations of life.” But it gets scant protection from judges today under either the Due Process or Equal Protection clauses. In the early 20th century, progressives relegated the right to earn a living to the lowest level of judicial review (so-called “rational basis review”). As the late scholar Bernard Siegan colorfully described in his book Economic Liberties and the Constitution, that standard of review ensures that “any law that legislators pass will be sustained unless they were in a complete state of lunacy at the time they acted.”

The result has been the relentless growth of occupational licensing and other legislation restricting entry into ordinary occupations. As Newell-Davis’ situation shows, even the most qualified and persistent person may be completely shut out from making a living in her chosen field, but these pervasive regulations often fall hardest on people at the margins of economic life.

The barriers are frequently disproportionate to any public benefit and admittedly designed to protect politically favored groups from economic competition.  One commonly cited statistic indicates that in the 1950s, governmental agencies required about 5 percent of the U.S. workforce to have a license to work in their field, whereas a license is required for about 30 percent today. Without a revival of the Privileges or Immunities Clause, the right to earn a living will continue to be neglected and burdened, getting negligible judicial attention despite it being deeply rooted in America’s history and central in the minds of the 14th Amendment’s authors.

Even those uninterested in elevating the civil rights status of economic freedom should want to see the court revitalize the clause. The right to earn a living is just one example of a broad category of “unenumerated liberties” (i.e., individual liberties not concretely named in the Bill of Rights) that courts protect under the aegis of the Due Process Clause. That’s because the Supreme Court is increasingly skeptical of using the Due Process Clause to protect civil rights.

Consider just a few individual liberties owing their security today to the Due Process Clause:  Pierce v. Society of Sisters (1925) upheld the right of parents to direct the education of their children; Griswold v. Connecticut (1965) protects the liberty to buy and use contraception; Loving v. Virginia (1967) invalidated laws banning interracial marriage; Lawrence v. Texas (2003) secures freedom of intimate relations for same-sex couples. Most controversially, for 50 years, the right to abortion was secured by the Due Process Clause until that line of precedent was overturned in Dobbs v. Jackson Women’s Health Organization.

In Dobbs, the court held that challenges to abortion restrictions are to be decided under rational basis. Although the court wrote that no one should be concerned that its ruling “would threaten the protection of other rights under the Due Process Clause,” both the court’s opinion and concurrences went on to urge caution in using the Due Process Clause to invalidate legislation restricting personal liberties. Justice Clarence Thomas wrote in a concurrence, “In future cases, we should reconsider all of this Court’s substantive due process precedents,” including several noted above. Simultaneously, he wrote, the court could consider whether any of “the rights announced in this Court’s substantive due process cases are privileges or immunities of citizens of the United States.”

If trends suggest that many longstanding civil rights precedents may soon be called into question, should we not want to face that future with the Privileges or Immunities Clause restored, insisting that courts enforce not just parts but the whole of the 14th Amendment intended by its drafters?

The heart of the civil rights movement has always been a drive to knock down state law barriers to economic, political, and social opportunity by securing equal rights and universal freedom. The forgotten Privileges or Immunities Clause was intended to be a major element of that struggle. The Supreme Court should take up Newell-Davis’ case to do what Slaughter-House did not: recognize that a Louisiana regulation barring qualified persons from earning their livelihood in a lawful occupation affects a fundamental right protected by the clause. It would be a good start in fixing its oldest, ongoing civil rights mistake.

This op-ed was originally published in The Dispatch on September 14, 2023.