Regressive Judicial Activism: The Slaughterhouse Cases

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.


Regressive Judicial Activism: Dred Scott v. Sandford

When you hear the term “judicial activism,” you probably think of Tea Party politicians decrying progressive Supreme Court rulings. Right-wing politicians want to use the letter of the law to oppress people, so they attempt to delegitimize the decisions of the Court by pushing forth the outrageous idea that laws should mean what they say. This seems to be the popular wisdom, at least. Originalism, adherence to the Constitution’s original meaning at the time its provisions were adopted, is taken to be a conservative judicial philosophy. Judicial activism is for progressives standing up for the rights of the marginalized.

The popular wisdom, however, is dead wrong. Judges have often imposed their personal views on the Constitutional text in order to take rights away from the little guy, not to give them to him. In particular, the Supreme Court did huge damage to the struggle for civil rights for blacks by interpreting the Fourteenth Amendment into oblivion in the late 19th century. In this series, I will explain some of the Court’s rulings that modern progressives and originalists alike can and should condemn. My point in doing this is to show that originalism is compatible with defending civil liberties, and that a living constitution is compatible with destroying them.

Dred Scott v. Sandford (1857)

Dred Scott was a Missouri slave suing for his freedom. The legal basis for his claim was that he had resided for a significant period of time in a free state, as well as in a U.S. territory in which slavery had been made illegal by Congress. Under Missouri law, slaves were emancipated after residing in a jurisdiction that outlaws slavery. As a result of heightened sectional tension following the compromise of 1850, however, the Missouri Supreme Court overruled its precedents and declared that Dred Scott was still a slave.

Scott then sued for freedom in the federal courts. In order for the federal courts to have jurisdiction over Scott’s suit, Scott had to be a citizen of the United States. Chief Justice Roger Taney ruled that Scott was not a citizen of the United States because he was black. According to Taney, blacks could not be citizens. No provision of the Constitution can be reasonably construed to support such a claim. Taney was abusing his power as a Supreme Court Justice and treating his personal opinions as if they were the supreme law of the land. The best he is able to do is give some bad historical analysis, which the dissenters in the case thoroughly refute. (Justice Curtis’s dissent in the case is particularly worth reading.)

Taney also held that Scott could not be a citizen because he was a slave, notwithstanding his residence in free jurisdictions. In order to defend this claim, Taney has to do some creative interpretation concerning the power of Congress to govern the territories. According to Taney, Congress did not have the right to prohibit slavery in the territories, because the Constitutional provision which authorizes Congress to govern the territories actually doesn’t mean what it says:

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. (Art. IV Sec. 3)

Taney gets around the plain meaning of the clause by saying that the word “Territory” refers “to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government” (page 431 here).

In multiple instances, Taney conjures up constitutional principles out of thin air for the purpose of keeping Dred Scott and all other blacks in a state of permanent subjugation. This is judicial activism at its worst.

The decision of the Court in Dred Scott provoked a great deal of outrage in its own day, and is recognized today as one of the worst, if not the worst, Supreme Court decisions ever. You can say that the pursuit of justice is a sufficient reason to override the plain meaning of the words of the Constitution, but if you adopt that rule and apply it consistently, eventually someone who defines justice in a way you don’t like will get on the court, and you will likely be singing a different tune. The alternative to the rule of law is tyranny, and you can’t guarantee that the tyrant will be on your side.