Prologue: "The Slaughter-House Cases" is the title of an 1873 Supreme Court opinion that was among the first to interpret some part of Section 1 of the Fourteenth Amendment, which was the part of that amendment that required the States to comply with the Bill of Rights and with other constitutional protections for individuals against government intrusion.
Or at least that was its purpose. But in Slaughter-House, a five-member majority of the Court interpreted one of the three main clauses of that section—the Privileges and Immunities clause, which states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States—as applying only to the privileges and immunities accorded by United States citizenship, rights they said were limited to those that imposed some affirmative duty on the federal government itself.
Although the purpose of most of the litigation of that era that involved interpreting the Fourteenth Amendment was to undermine Reconstruction itself, such as United States v. Cruickshank, decided in 1876—the Amendment was supposed to effectuate Reconstruction by requiring the states to comply with federal constitutional and statutory law—the Slaughter-House litigation had a different goal entirely, one concerning the extent to which, within the confines of the Privileges and Immunities Clause, a state can regulate economic activity within its boundaries in order to protect the health and wellbeing of its residents.
In Slaughter-House, an organization of New Orleans-area butchers challenged the constitutionality of a state law that limited slaughterhouses to a specifically designated area at the southern edge of the city, south of the Mississippi in order to avoid waste contamination of the city’s water supply. The butchers invoked the Privileges and Immunities Clause, which, they argued, prohibited the state from infringing upon their constitutional right to exercise their trade and provide for themselves and their families.
The bare majority of justices interpreted the Privileges and Immunities Clause as not applying to, and therefore as not restraining, the police powers of states except as regards the rights that the Constitution identifies as incident to United States citizenship.
The opinion was written by Justice Samuel Freeman Miller, who according to Wikipedia was a former physician who wrote his medical school dissertation on cholera, one of the diseases rampant in New Orleans because of contaminated drinking water. The opinion, though well-meaning and undoubtedly lifesaving in its day, effectively nullified the Privileges and Immunities Clause by rendering either nonsensical or redundant of the Constitution’s Supremacy Clause. The result is a gimmicky, narrow-right-by-narrow-right “incorporation” of various constitutional rights, selected piecemeal by the Supreme Court over the decades, into protections against state incursion.
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The title of a recent op-ed piece by Senate Judiciary Committee ranking Republican Jeff Sessions in the Washington Post was striking enough. “Americans look for Supreme Court to restrain federal power, not expand it,” suggested, at least to me, that this conservative Republican senator was calling for the Court to rule in favor of allowing states and municipalities to, among other things, ban the sale or possession of handguns within their borders.
After all, the Court heard argument earlier this spring in a case called McDonald v. Chicago in which the petitioners are asking the Court to rule that the Second Amendment right to bear arms precludes not just the federal government but any government within the United States—states, counties, municipalities, too—from prohibiting the sale and possession of handguns (or any other type of gun).
The lower federal appeals court had noted that the provisions in the Bill of Rights, the first ten amendments to the Constitution, proscribe only the federal government from infringing upon the rights of individuals that those amendments guarantee. Or that at least that was so until the Fourteenth Amendment was enacted after the Civil War—an amendment that appears, in what is known as the privileges and immunities clause, to expressly bar states (and localities, which are chartered by states) from infringing upon the rights the Constitution gives to individuals—and that the Court, in a notoriously problematic 1873 opinion known as The Slaughter House Cases, said otherwise and nullified the privileges and immunities clause.
Rather than overrule Slaughter House outright, the Supreme Court later embarked upon a right-by-right process of deciding whether each particular right provided in the Bill of Rights was, in the Court’s opinion, so fundamental that it is “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions” as to be “incorporated” into another clause in the Fourteenth Amendment—the one known as the due process clause, which prohibits the states from “depriv[ing] any person of life, liberty, or property, without due process of law.”
And it turns out that way back during the Reconstruction Era, the Court had explicitly refused to “incorporate” into the Fourteenth Amendment’s due process clause the Second Amendment right to bear arms. Whatever the extent of the right to bear arms, that right isn’t sufficiently fundamental to be considered a due process right. Or at least it wasn’t, back then.
But that was then and this is now. A slew of civil liberties groups and professors of the right and the left have filed friend-of-court briefs in McCormick imploring the Court to overrule Slaughter House and acknowledge that a clause that provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—which is what the privileges and immunities clause says—means that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
By repealing the repeal of the privileges and immunities clause, the Court would end its own prerogative to decide which of the provisions in the Bill of Rights is fundamental enough to be considered implicit in the concept of ordered liberty. The advantage of this would be that it would not only be the Second Amendment right to bear arms, which he Court held last year is a right that accrues to individuals rather than just well regulated militias (to borrow a phrase from the Amendment itself) that states and municipalities could not infringe upon; it would be all the rights provided in the Bill of Rights. Even those unloved by, say, Chief Justice John Roberts and Justice Antonin Scalia.
And until the oral argument in McCormick on March 2, this seemed possible. But after oral argument, it does not. A majority of justices, including some of the most insistently self-styled balls-and-strikes callers, will reject the invitation to overrule Slaughter House yet pronounce the right to bear handguns a fundamental right. This will enable them to preserve the right that Slaughter House reinstated to the states the right that the outcome of the Civil War and the enactment of the Fourteenth Amendment had removed from them: the right to deny individuals rights incorporated into the Bill of Rights that ideological conservatives don’t consider fundamental when it is someone else who is being deprived of them.
Which is par for the course, the course being the casual gliding back and forth between arguing for and arguing against the power of federal courts to overrule state laws, or for that matter, any laws, and to always call their outcome-determinative position anti-judicial-activist, even when, as Sessions does in his op-ed piece, it is a call for the courts to rule on the basis of conservative policy preference. Sessions says he wants—and thinks a majority of Americans want—the Supreme Court to declare unconstitutional any statute that expands the role of the federal government.
“People,” Sessions writes, “are increasingly worried that Washington is exceeding the limits set by the Constitution, asserting too large a role in American life.” He then conflates the issue of the constitutionality of a statute—legislation enacted by Congress and signed into law by the president—and the entirely separate issues of rights conferred directly by specific provisions of the Bill of Rights and the Fourteenth Amendment, which because they are rights provided directly by the Constitution do not depend for their breadth or effect upon a statute. The right to speak freely, without government interference, exists independent of a statute that gives you that right. Any such statute would be redundant. But a statute that denies you that right in some respect may well be an unconstitutional infringement upon that constitutional right.
Whether deliberately or because he himself does not understand the difference between rights provided by statute and rights provided directly by the Constitution, Sessions claims falsely in his op-ed piece that Obama judicial nominee Goodwin Liu, a law professor at the University of California at Berkeley, “has argued that judges should treat the Constitution as an infinitely flexible document to be interpreted through nebulous ‘social understandings’ and [that therefore] the Constitution provides a right to government health care and welfare – a remarkable view of a document designed to curb the excess of federal power.”
Indeed it would be a remarkable view, but it is not one that Liu holds. And if Sessions read Liu’s writings and written answers to the questions he and other senators posed to him, in writing, he would know that. At least if he, Sessions, understands plainly written English. And if he understands that statutes create legal rights and obligations that the Constitution itself allows statutes to create but that the Constitution itself does not create directly. And if he understands that that is what the entire body of federal statutes does.
What Liu said is that he believes that the government should create rights to health care and certain welfare provisions by enacting statutes that confer those rights. He has said, in other words, that these are policy positions that he believes the government has the constitutional authority to create and that the government should create. In his responses to Sessions’ own questionnaire, Liu wrote that there is “no role for courts” to question Congress’s decision in 1996 to end welfare as an entitlement for some families, nor has he ever written anything elsewhere to the contrary. Nor, contrary to another of Sessions’ op-ed-piece claims, does Liu think the Constitution should be interpreted through consideration of foreign law. He responded to another of Sessions’ questionnaire questions by saying that “foreign law has no legal authority in the interpretation of the U.S. Constitution.”
Unlike so many conservatives, including some on the federal bench, Liu does not confuse his own policy preferences with substantive rights incorporated in the Constitution. He knows the difference. Which distinguishes him from Justices Scalia and Thomas in interpreting (or rewriting, as the case may be) at least one constitutional amendment: the Eleventh, which actually provides in full: “The Judicial power of the United States shall not be construed to extend to any suit in law [a lawsuit asking for a monetary award] or equity [a lawsuit asking not for a monetary award but instead for a declaration of law or for a prohibition of some action], commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The Originalists/Textualists on the Court have repeatedly joined with their states-rights and pro-prosecutor/pro-police colleagues during the last decade or so to claim that that Amendment actually reads: “The Judicial power of the United States, and the Judicial power of any State, shall not be construed to extend to any suit in law commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of the State being sued, or Subjects of any Foreign State.” Really.
Luckily, petitioner McCormick’s lawsuit is just a suit in equity, not a suit in law, because the Court is about to reaffirm that the Judicial power of the United States may be construed to extend to his lawsuit.
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