This is one of a series of columns written by members of the Franklin County Bar Association on aspects of the U.S. Constitution’s 14th Amendment, which is the focus of the association’s Law Day celebration this year. Law Day is May 1. The opinions are those of the individual lawyers and not the association.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”; The privileges or immunities clause was the first right guaranteed to citizens in the 14th Amendment to the United States Constitution. You would think being first it is pretty important, but for many, the courts ignored the privileges or immunities clause.
Why?
In a 1873, 5-4 Supreme Court ruling, the Slaughter-House Cases, 83 U.S. 36 (1873), rendered this important clause practically a dead letter. In Slaughter House, actions were brought against the Crescent City Co. by the 400-member-strong Butcher’s Benevolent Association, to strike down a law that allowed them to monopolize the meat packing industry, by allowing the city to grant a single corporate interest a 25-year franchise controlling the Mississippi River livestock docks. This law meant every butcher needed to pay the company for the right to practice their trade. The butchers argued that among the privileges of citizenship was the right to practice your trade without paying a corporate middleman. They argued that the framers of the 14th Amendment, radical Republican reconstructionists, intended the clause to make the Bill of Rights apply to the individual states and localities.
A conservative court upheld the law and denied relief to the Butchers. They stated that 14th Amendment was created to give protections to freed slaves, not everyone. They also said the privileges or immunities clause related only to the rights of U.S. citizenship and not the rights of state citizenship. They held that the state was within its rights to exercise their police powers to control the meat packing industry.
Abraham Lincoln appointee Justice Stephen Field later wrote that the Slaughter House Cases rendered the privileges or immunities clause a “vain and idle enactment.” Many liberal scholars have also criticized the decision. Obama judicial adviser and Harvard constitutional law professor Laurence Tribe wrote that “the Slaughter House Cases incorrectly gutted the Privileges or Immunities Clause.”
Despite its unpopularity, this divided court’s decision rendered the privileges or immunities clause a dead letter until 2010. In McDonald v. Chicago, 561 U.S. 742 (2010), the Court took up the case of 76-year-old Otis McDonald, a retired African-American maintenance engineer, who wanted to protect himself with a handgun in his Chicago home. The Morgan Park neighborhood he had lived in for 40 years was overrun with gangs and drug-related violence. Chicago had a 100 percent ban on handguns after 1982, so McDonald, an experienced hunter, could only use and unwieldy shotgun for protection and found it inadequate for his needs.
Two years earlier, in District of Columbia v. Heller, 554 U.S. 570 (2008), the court held that the right to possess a handgun was a personal right of U.S. citizenship protected under the Second Amendment to the Constitution, which Washington could not deny without due process of law. McDonald asked, did that right apply to the states under the 14th Amendment? In a 5-4 decision, the court found that the right did apply to the states, but why? While four of the justices applied the due process clause, Justice Clarence Thomas reached the same conclusion in a concurring opinion, but Justice Thomas relied on the privileges or immunities clause.
Thomas cites Chief Justice Marshall in the landmark case of Marbury v. Madison, 1 Cranch 137, 174 (1803) quotes “It cannot be presumed that any clause in the Constitution is intended to be without effect.” Thomas looks to privileges or immunities as a conservative alternative to the foggy world of “substantive due process” and “fundamental rights” long criticized by conservatives as a legal fiction for political purposes and championed by liberals as a living constitution.
Has Justice Thomas revived the privileges or immunities clause? Is this a roadmap for litigators to win conservative justices over on issues traditionally argued as fundamental rights under substantive due process? The right to travel between states is already a right protected by privileges or immunities, Scott v. Sandford (1857), but what else could be? Fourth Amendment privacy rights? Federal voting rights? It is too early to tell, but attorneys will find the answer.