51. The Slaughterhouse Cases and the Privileges or Immunities Clause

150 years ago, a 5-4 majority denuded one of the Fourteenth Amendment's central provisions of almost any substantive force. The effects of that ruling are still being felt today.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already). And as we approach the newsletter’s one-year anniversary in two weeks, I hope you’ll consider upgrading to a paid subscription if your circumstances permit (and if you haven’t already!):

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On the Docket

It’s pretty easy to recap last week at the Court: There was a single full Court order—a denial of emergency relief in a dispute over a new compact between Florida and the Seminole Tribe with respect to sports betting and other online gaming. Justice Kavanaugh wrote a “statement” respecting the denial in which he suggested potentially significant issues with the compact under Florida state law (and potential equal protection issues, as well), some of which are currently pending before the Florida Supreme Court in a separate suit.

This week will be quite a bit busier. We expect a regular Order List at 9:30 ET this morning, followed at 10:00 by the first argument of the Court’s “November” argument session—which includes four arguments this week and three next week (the biggest of which is almost certainly next Tuesday’s argument in Rahimi, on whether the federal statute barring those subject to domestic violence-related restraining orders from possessing firearms violates the Second Amendment, an issue I wrote about earlier this year).

There are also six pending emergency applications, three of which involve similar challenges to the EPA’s “Good Neighbor” restrictions on pollutants (in which the responses are due by 5:00 p.m. (ET) today—which could make them ripe for resolution by the end of the week). Two other applications (one from Florida seeking to put back into effect its anti-drag law and one from BP and two other oil companies seeking to block an upcoming jury trial in Louisiana because of alleged bias in the jury pool) have responses due Thursday by 5:00 p.m. (ET), but may not be acted upon until next week. Good times.

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The One First “Long Read”: Slaughterhouse’s Shadow

When Karen and I started this newsletter almost a full year ago, one of our goals was to use the Monday issues to provide more of an historical introduction to the Court—including some of its most significant decisions. An easy subject for such a post celebrated its 150th anniversary on April 14: The Court’s 5-4 decision in consolidated disputes known as the Slaughterhouse [or Slaughter-House] Cases. Slaughterhouse (as it’s often shorthanded) is at the top of my list of “really important constitutional holdings by the Supreme Court that most non-lawyers don’t know.” Indeed, even though it’s 150 years old, we’re continuing to live with Slaughterhouse’s consequences today. To understand why, we’ve got to spend some time with the Privileges or Immunities Clause of the Fourteenth Amendment.

The centerpiece of the Fourteenth Amendment is section 1, which creates four new rights:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

The first sentence is the Citizenship Clause, which, among lots of other things, overruled the Supreme Court’s decision in Dred Scott (which had held that slaves could not be, or become, citizens). The second sentence is designed as three overlapping limits on states—radically expanding the number of ways in which the federal Constitution constrained local and state governments. (Before the Fourteenth Amendment, the only express limits were the specific ones set out in Article I, § 10). You’re likely familiar with the latter two—the Due Process and Equal Protection Clauses. But note that they come after a clause that provides that states may not “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Okay, but what are “the privileges or immunities of citizens of the United States”? One common view is that this language of the Fourteenth Amendment was referring, at a minimum, to those rights the Constitution already guaranteed against the federal government—i.e., the Bill of Rights. (This is a form of “total incorporation”—the idea that the Fourteenth Amendment applies all of the Bill of Rights to state and local governments.) Another looks to the similar language of the Privileges and Immunities Clause of Article IV—which generally limits the circumstances in which states can discriminate against out-of-state citizens. A third view is that this language was also protecting unenumerated rights—like the ones the Ninth Amendment said that the Constitution protects against infringement. (And a new paper from three law professors, Will Baude, Jud Campbell, and Steve Sachs, argues that it was about preserving rights available under the general common law that existed as of 1868.)

Forests have been felled over which of these readings is the most compelling (indeed, as we’ll shortly see, many of them can coexist/overlap). The relevant point for present purposes is that they all presuppose that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to impose meaningful substantive limits on the ability of states and local governments to act against their citizens. And yet, in Slaughterhouse, the Supreme Court adopted an interpretation of the Privileges or Immunities Clause that renders it effectively pointless.

The dispute in Slaughterhouse arose out of efforts by the Louisiana legislature and the City of New Orleans to improve sanitary conditions among butchers in the Crescent City (whether the initiative had altruistic motives or was a pretext is a matter of some debate, but ultimately inconsequential here). To that end, the legislature enacted a statute that (1) confined slaughterhouse operations to a specific and small geographic area; and (2) chartered a corporation to supervise those operations (by renting out space to individual butchers within the designated area). A group of over 400 butchers sued, challenging the Louisiana law under all three of the Fourteenth Amendment’s new state-oriented protections: The Privileges or Immunities, Due Process, and Equal Protection Clauses. Indeed, this would be the first major case the justices would hear seeking to enforce these new provisions. But the heart of the dispute centered on the Privileges or Immunities Clause.¹

The Supreme Court heard oral argument over three days in February 1873, and handed down its ruling two months later. Justice Samuel Freeman Miller, an Iowa Republican appointed to the Court by President Lincoln, wrote for the 5-4 majority that rejected the butchers’ claims and upheld the Louisiana law. With regard to the debate over the meaning of the Privileges or Immunities Clause, Miller adopted an interpretation so narrow as to be difficult to believe, focusing on a hyper-textual distinction between the first sentence of section 1 (which refers to “citizens of the United States and of the state wherein they reside”) and the second sentence (which refers to “the privileges or immunities of citizens of the United States” with no parallel reference to “the state wherein they reside”). In his words:

It is a little remarkable, if [the Privileges or Immunities] clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.

In other words, the Privileges or Immunities Clause protects against state intrusion into only the privileges or immunities of federal (as opposed to state) citizenship, a distinction that appears nowhere in the discussion surrounding the drafting and ratification of the Fourteenth Amendment. And what are those privileges or immunities that were so important as to come before the Due Process and Equal Protection Clauses? Miller identified a handful: The right to travel to the seat of government; the right “to demand the care and protection of the Federal government over [one’s] life, liberty, and property when on the high seas or within the jurisdiction of a foreign government”; the Assembly and Petition Clauses of the First Amendment; the protection of habeas corpus; and (my favorite) “[t]he right to use the navigable waters of the United States, however they may penetrate the territory of the several States.”

Justice Samuel Freeman Miller, who wrote the majority opinion in the Slaughterhouse Cases.

These are all significant rights, to be sure. But the notion that the drafters of the Fourteenth Amendment were so worried about protecting these rights against state infringement that they put the Privileges or Immunities Clause before the Due Process and Equal Protection Clauses is implausible on its face. And Miller didn’t really try to suggest otherwise; his majority opinion is focused largely on his very literal reading of the text.

Miller’s opinion, which was joined by Justices Nathan Clifford, David Davis, William Strong, and Ward Hunt (who had just joined the Court a month before the argument), provoked vehement separate dissents from Justices Noah Swayne, Joseph Bradley, and Stephen Field (whose dissent was joined not just by Swayne and Bradley, but by Chief Justice Salmon Chase). Field, in particular, sharply accused Miller of reading the Fourteenth Amendment to be “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Instead, Field argued, in addition to incorporating the Bill of Rights, the Clause should also be understood to protect certain unenumerated rights—including, as especially relevant in Slaughterhouse, the butchers’ right to pursue “a common calling.”

Even on Field’s reading, one could have distinguished between the two features of the Louisiana law: Requiring all slaughterhouses to operate in a particular geographic area could likely meet today’s version of heightened scrutiny, since the government would have an important (if not compelling) interest in protecting against the diseases that unsanitary butchering conditions would help to spread. But at the very least, the creation of what was, in effect, a state-created monopoly would’ve been much harder to defend against Field’s reasoning.

Rather than engage with those nuances, though, Miller responded by suggesting that, were the Court to do as Field urged, it would have dramatic repercussions. In his words, it

would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it 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; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

In other words, the majority in Slaughterhouse declined to give the Privileges or Immunities Clause what certainly appeared to be its intended meaning entirely because it was worried about what that meaning would entail with regard to the role federal courts would have to play in supervising state and local governments going forward.

In that respect, Slaughterhouse stands out as the first of a series of decisions the Supreme Court would hand down between 1873 and 1903 that adopted unduly (if not indefensibly) narrow interpretations of the Reconstruction Amendments at least largely to mitigate the effects those amendments would otherwise have had on the relationship between the federal government and the states (and between formerly enslaved people and their governments). There’s a whole body of literature on why a Court dominated by Republican appointees² soured so quickly and comprehensively on completing the constitutional work of Reconstruction (Professor Pamela Brandwein, in particular, has done sensational work on the subject). And a previous issue of the newsletter focused on another example—the ruling 10 years after Slaughterhouse in the Civil Rights Cases.

For now, let’s just say that it was hardly a coincidence that, at the same time the Court started working to water down the Reconstruction amendments, public sentiment (even among Republicans) was turning against the broader Reconstruction project—culminating in the Democrats retaking control of the House of Representatives in the 1874 midterms and in the Compromise of 1877. There’s more to say about the Court’s unique culpability for the failure of Reconstruction; the relevant point for present purposes is that Slaughterhouse was perhaps the first major step down that path—and it was a near-run thing.

As for Miller’s fears of the federal courts having to regularly adjudicate the constitutionality of local and state government actions, of course, the courts ended up largely playing that role anyway. But it wouldn’t be until the 1940s, 1950s, and 1960s that the Court finally incorporated most of the Bill of Rights against the states. And because Slaughterhouse took the Privileges or Immunities Clause off the table, the twentieth-century Court’s incorporation jurisprudence relied instead on the Due Process Clause of the Fourteenth Amendment—an awkward fit for substantive limits on local and state governments. One of the consequences was the rise of “selective” incorporation (in which the Court applied the Bill of Rights to the states one provision at a time), instead of the “total” incorporation that the Privileges or Immunities Clause was quite likely intended to accomplish.

The same can be said about unenumerated rights. The Due Process Clause likewise became the constitutional basis for those claims, first during the Lochner era (by protecting the “liberty of contract”); and later by protecting those rights that the justices believed to be “implicit in the concept of ordered liberty,” including, eventually, the right to privacy recognized in Griswold and the right to pre-viability abortions recognized in Roe. These two sets of rights (incorporated provisions from the Bill of Rights and unenumerated substantive rights) came to be known by the oxymoronic term “substantive due process,” all because Slaughterhouse closed off their more obvious (and perhaps even intended) constitutional home. Indeed, what is often decried as “activism” by the Warren Court (and the early Burger Court) looks at least somewhat different if one views those decisions instead as belatedly carrying out the original intent of the Reconstruction amendments.

In a 2011 law review article, University of Pennsylvania Professor Kermit Roosevelt III considered the alternate history of Slaughterhouse, asking “What If Slaughter-House Had Been Decided Differently?” It’s an interesting academic experiment, but one in which the Court appears to have little interest. Even though Justice Thomas argued for overruling Slaughterhouse in his opinion concurring in the judgment in McDonald v. City of Chicago (where he would’ve used the Privileges or Immunities Clause to incorporate the Second Amendment against local and state governments), he was alone. As Fourth Circuit Judge J. Harvie Wilkinson III had explained in a passage quoted with approval in Justice Stevens’s dissent, “For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.”

But even if Slaughterhouse (and its unduly constrained reading of the Privileges or Immunities Clause) isn’t going anywhere, understanding its downstream effects continues to matter—especially for those who don’t believe that the Constitution protects unenumerated rights, and who point to the inherent contradiction in “substantive due process” as proof. That the Due Process Clause is an unsatisfying analytical home for unenumerated substantive limits on the powers of local and state government actors is certainly a reasonable take. It just doesn’t prove that no constitutional provision enshrines those limits. To the contrary, there are powerful arguments that the Privileges or Immunities Clause was meant to do just that—if only the Supreme Court had taken it seriously.

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SCOTUS Trivia: Finding Rulings on the Court’s Website

This is less “trivia” and more “how to,” but I received multiple requests last week for help figuring out how to find Supreme Court decisions when they come down, and so thought I’d use this week’s “trivia” as something of a guide for the perplexed.

To make a long story short(er), the Supreme Court’s website is not exactly … self-explanatory in helping visitors find the Court’s rulings. Individual docket pages are always a good bet for finding updates in specific cases, but if you are following the Court, as opposed to a specific case (in which you already know the docket number), new rulings can show up in the first instance in any one of five places:

1. “Opinions of the Court”: Whenever there’s a majority opinion, whether in an argued case or respecting an order, the ruling will show up here. This is where we all spend way too much time in May or June frantically hitting refresh, but it can also be where emergency orders show up in those circumstances in which the full Court chooses to explain itself.

2. “Orders of the Court”: You’d think all orders would show up here. You would be wrong. The Court posts three things to this webpage:

   1. The regular Order Lists posted each Monday morning after a Conference the previous week (which can include opinions relating to orders at the end);

   2. Miscellaneous orders by the full Court (so anything the full Court does that does not include any separate writing by a justice—including non-case-related orders such as the adoption of amendments to federal court rules or new circuit justice assignments); and

   3. Orders by individual justices if and only if the order (1) grants some type of relief; and (2) does not include an opinion.

3. “Opinions Relating to Orders”: Whenever a justice writes a separate opinion relating to any order (so, denials of certiorari; grants or denials of emergency relief), and the order doesn’t come with a majority opinion (in which case it would show up as an “Opinion of the Court”), it will show up here. And where the order is not part of a regular Order List, it will only show up here (like each of the last four orders resolving emergency applications).

4. “In-Chambers Opinions”: Whenever a justice resolves an application on their own and writes an opinion respecting that resolution, it will show up here. This doesn’t happen very often (the last one was in 2014).

5. Individual Docket Pages: Finally, a single-justice order denying an application without an opinion will show up only on the individual docket page for that specific application, which you can find by using the Court’s “docket search” function.

What’s especially challenging about this setup is that you’ll seldom know where to look until the ruling actually comes down. Take last week’s sole order—denying emergency relief in the West Flagler case. Chief Justice Roberts could potentially have acted on his own (in which case his ruling would have appeared only on the 23A315 docket page, or under “In-Chambers Opinions” if he wrote about why). The full Court could have denied the application with no separate opinion (in which case it would have appeared under “Orders of the Court”). The full Court could have written a short majority opinion (in which case it would have appeared under “Opinions of the Court”). Or a single justice could have written a separate opinion (which is what happened, and why the ruling and Justice Kavanaugh’s separate “statement” appears only under the “Opinions Relating to Orders” page).

Perhaps there are better ways for the Court to make decisions as accessible as possible (including, dare I say, timestamps?). I’ll leave specific ideas on that front for others. The point for now is just to help folks figure out where to look when the Court does something unpredictable—which, at least these days, can happen a lot.

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Happy Monday, everyone. I hope that you have a great week!

1. The butchers were represented by former Supreme Court Justice John Campbell, who had resigned from the Court in 1861 to join the Confederate government. Campbell apparently saw the cases as an opportunity to use the Reconstruction amendments as a way of attacking Reconstruction itself—hence having a case with white plaintiffs as the first major effort to enforce amendments that were largely designed to bring an end to (and ameliorate the effects of) slavery.

2. Between 1858 and 1888, Republican presidents would make 14 straight appointments to the Supreme Court—from Justice Swayne in 1862 to Justice Blatchford in 1882.