This ought to be relatively short. My focus for the post is going to be on the clause at issue in the cases, rather than the cases themselves, since I don’t find them particularly interesting.
Amendment XIV, Section 1:
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. [emphasis added]
I have bolded the Privileges or Immunities Clause, which just happens to be my favorite clause in the Constitution, at the moment. I think I like it in part because it just sounds important. The historical context of the passage of the Fourteenth Amendment (Reconstruction) also indicates that the clause is important. Yet important cases involving individual rights have generally not had much to say about the Privileges or Immunities Clause, which is odd, given that some kinds of rights sound like the same thing as privileges and immunities.
For this, we can blame The Slaughterhouse Cases.
In 1869, the Louisiana legislature passed a law heavily regulating slaughterhouses in New Orleans. The law also chartered a private corporation, Crescent City Live-Stock Landing and Slaughter-House Company, and granted it a monopoly over slaughterhouse operations in the city for 25 years. Unsurprisingly the butchers of New Orleans were quite unhappy with this law, so they sued, partly on the grounds that the privileges or immunities secured by the Fourteenth Amendment were being abridged.
Justice Miller’s opinion for the court in favor of Crescent City effectively gutted the Privileges or Immunities Clause, holding that the clause only applied to the rights of federal citizenship, and not to those of state citizenship. As a result, the clause has been mostly toothless ever since. This frustrates me. While there are debates to be had over the original meaning of the clause, there is a strong case to be made that, had it been interpreted properly, it would have prohibited segregation and anti-miscegenation laws, while also securing the right of black Americans (and all other citizens) to have access to places of public accommodation.
Michael McConnell has relied on this understanding of the Privileges and Immunities Clause (plus the Equal Protection Clause) to defend Brown v. Board of Education (which held segregated public schools to be unconstitutional) on originalist grounds. Stephen Calabresi has done the same for Loving v. Virginia (which declared anti-miscegenation laws to be unconstitutional). Moreover, the Privileges or Immunities Clause, under this reading, is sufficient justification for Congress to pass civil rights legislation without relying on an absurdly broad reading of the Commerce Clause (i.e. Wickard v. Filburn [holding that Congress’s power under the commerce clause extends to agricultural activity for noncommercial use] is still wrong, but Katzenbach v. McClung and Heart of Atlanta Motel v. United States [upholding the constitutionality of the Civil Rights Act of 1964] are right).
Some of the highest-profile Supreme Court cases in the past few decades have raised significant questions about the extent of the states’ police powers. Roe v. Wade placed strict limitations on the states’ ability to regulate abortion. Obergefell v. Hodges made it constitutionally required for states to recognize same-sex marriages. The typical originalist in these cases tends to fall strongly on the side of states’ rights. This has created an association in my mind between originalism and states’ rights, which might turn some people away from originalism.
But, of course, originalism is not just about states’ rights, and the original meaning of the Privileges or Immunities Clause makes that clear. The work of scholars like McConnell, Calabresi, Randy Barnett, and others indicates that the Fourteenth Amendment, as originally understood, granted broad powers to Congress to defend individual rights, including unenumerated rights, from infringement by the states. Originalism, thus, does not require us to sacrifice the individual for the sake of the state. The rights of both are protected by the Constitution.
Now we just need to overturn The Slaughterhouse Cases.