Reviving the Privileges or Immunities Clause

The U.S. Supreme Court last week heard oral arguments in McDonald v. City of Chicago, an important gun control case. But to many constitutional law scholars, whether the high court decides to uphold or strike down Chicago's gun control law is secondary. Far more important is whether the Supreme Court decides the case under the right part of the 14th Amendment to the Constitution. The 14th Amendment, which was written in 1866 and ratified in 1868, shortly after the Civil War, says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Two of the key clauses in the 14th Amendment are known as the "Privileges or Immunities Clause" and the "Due Process Clause." What many constitutional scholars hope is that the Supreme Court will decide McDonald v. City of Chicago under the Privileges or Immunities Clause, rather than the Due Process Clause.The Privileges or Immunities Clause, they say, was rendered almost meaningless 137 years ago due to a mistake by the post-Civil War Supreme Court. In 1873, eight years after the Civil War and five years after the 14th Amendment went into effect, the Supreme Court decided a series of consolidated cases called the Slaughter-House Cases. Several Louisiana meat-packing companies challenged a state law allowing one company the exclusive right to slaughter livestock in New Orleans. Other companies had to pay a fee for using the slaughterhouses. The companies that filed suit argued that Louisiana was abridging their privileges or immunities by preventing them from exercising the basic civil right to labor freely. The Supreme Court ruled that the Privileges or Immunities Clause was not meant to prohibit states from abridging basic civil rights. Instead, it was merely meant to prevent states from abridging a limited set of rarely invoked rights of citizenship of the United States, such as the right to petition the federal government and to free access to its seaports. Later, following the precedent set by the Slaughter-House Cases, the Supreme Court held that the Privileges or Immunities Clause was not meant to prohibit the states from doing the very things that the federal government is foreclosed from doing under the first eight amendments to the Constitution. For example, the Privileges or Immunities Clause does not prevent states from "abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble," even though the First Amendment prohibits the federal government from abridging such freedoms. Many constitutional law scholars are convinced that the Supreme Court got the Privileges or Immunities Clause wrong. They say it was designed specifically to prevent states from abridging basic civil rights, including those contained in the first eight amendments to the Constitution. The drafters of the 14th Amendment were determined to prevent Southern states from abridging the civil rights of former slaves. Over the years, the Supreme Court has managed to circumvent its own decision in the Slaughter-House cases. Having rendered the Privileges or Immunities Clause useless, the court has turned to another clause of the 14th Amendment § the Due Process Clause § and found that it prohibits the states from doing most (but not all) of the things the federal government is prohibited from doing under the first eight amendments. Constitutional law scholars are generally pleased that the Supreme Court has prevented states from abridging basic civil rights. But they think this is a maddening way of doing it. The clause of the 14th Amendment that protects "privileges or immunities" is the one that should be analyzed when considering whether a state has violated a person's basic civil rights. After all, the words "privileges" and "immunities" are synonymous with civil rights. The clause of the 14th Amendment that mandates "due process of law" should be analyzed only if a state has taken action without first taking all the procedural steps that are expected before a government acts. For example, if a state passes a law restricting free speech by the vote of its legislature and the approval of its governor, it is awkward to say that the state violated "due process." But it may have abridged its citizen's "privileges or immunities." Constitutional scholars are not unanimous on this point, but unlike many issues of constitutional law, this one does not divide scholars into "liberal" and "conservative" camps. Yale Law Professor Akhil Amar has noted that most serious modern scholars from the "left, right, and center" think the Slaughter-House Cases are wrong. Several of these scholars have submitted a brief in the McDonald case, urging the Supreme Court to "restore the Privileges or Immunities Clause to its rightful and intended place at the heart of the Fourteenth Amendment." They tell the justices that they "look forward to the day when we can teach our students how the Supreme Court corrected this grievous error." The handful of scholars who disagree would just as soon see the Supreme Court leave the Privileges or Immunities Clause dead in its grave. They see no good reason why the Supreme Court shouldn't continue to analyze alleged violations of basic civil rights by the states under the Due Process Clause. That's the way the Supreme Court has been doing things for decades, and the Constitution has survived. Reviving the Privileges or Immunities Clause after 137 years would just be opening a can of worms. But those who support breathing new life into the Privileges or Immunities Clause clearly have the better argument. The Slaughter-House Cases have caused the justices of the court to awkwardly pound square pegs (allegations of civil rights violations by the states) into a round hole (constitutional language prohibiting states from taking action without first going through thorough procedures). In the long run, this takes the good sense out of constitutional interpretation, which has negative effects. They may be hard to measure, but that does not mean they aren't real. In McDonald v. City of Chicago, the justices of the Supreme Court should acknowledge that their predecessors made a mistake 137 years ago when deciding the Slaughter-House Cases. The time has finally come to fix that age-old mistake. §§§§§ Max Heerman is a graduate of the Northwestern University School of Law and a partner at a Minneapolis law firm. He has contributed articles on legal and constitutional subjects to a number of magazines and newspapers, including the Star-Tribune. You can reach Heerman at (612) 810-9273, or by e-mail at maxheerman@hotmail.com. Published: Wed, Mar 10, 2010

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