Privileges or immunities – 14th Amendment

• Text. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of U.S.”

The Slaughter-House Cases – New Orleans slaughtering monopoly

• Miller 1873. Held that a law granting a slaughtering monopoly in New Orleans did not violate the Privileges and Immunities of other butchers whose business was harmed by the law.

• Ps argument:

• PIC of Article IV, §2, which protects out-of-staters, protects the right to pursue a calling;

• PIC of 14^th Amendment extends the reach of the corresponding Article IV clause by applying it to state actions directed at a state’s own citizens; and therefore

• the law is unconstitutional, because the affected butchers are citizens of the U.S., and their right to pursue a calling has been abridged by the law.

• SCt rejected this argument because

• first sentence of 14^th Amendment distinguishes between state and federal citizenship;

• PIC applies only to the privileges derived from federal citizenship;

• the right to pursue a calling is not derived from federal citizenship; and therefore

• the law is constitutional.

• Analysis.

• Miller’s reading of the provisions renders PIC of 14^th Amendment a nullity, because none of the privileges he places within the clause’s protection could have been abridged before the clause was enacted.

• Miller nonetheless insisted on his interpretation because a contrary reading, which would empower the federal courts to protect individuals from their own state governments, “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”

Slaugheter-House remains good law

• Although its reasoning is widely criticized, Slaughter-House is still good law.

• Part of the reason may be that modern judges are less confident than Field and Bradley were that they can determine which rights are fundamental, and so they shy away from the broad and vague power that PIC seems to confer.

• On the other hand, because of the strengthening of the other provisions of the 14^th Amendment, the parade of horribles that Miller sets forth (797) pretty accurately describes the regime we now inhabit:

• Any state law may be subject to constitutional challenge, and Congress can pass laws limiting states’ legislative power when it reasonably decides that this is necessary to enforce 14^th Amendment rights (Katzenbach v. Morgan).

• SCt now routinely engages in what John Marshall dismissed as “the extraordinary occupation of affording the people additional protection from the exercise of power by their own governments.” (Barron v. Baltimore)

• Specific result of Slaughter-House was reversed de facto during the Lochner era, when SCt protected economic liberty via the due process clause.

• This made possible a textual defense of Lochner.

• Even if substantive due process really is an oxymoron, it is still arguable that these decisions are justified, because they would have been appropriate under PIC.