Does the U.S. Constitution protect individual rights against abuse by the states? For more than 130 years, the answer to that question has been clouded by the Slaughterhouse Cases (1873), a controversial Supreme Court decision that effectively gutted one of the Constitution's most important safeguards for individual liberty: the Privileges or Immunities Clause of the Fourteenth Amendment.
Earlier this month, the Constitutional Accountability Center, a liberal think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history," published their version of this unfortunate story. Written by the legal scholars David H. Gans and Douglas T. Kendall, the result is an informative, though ultimately incomplete study that fails to acknowledge the essential role classical liberalism played in keeping the 14th Amendment alive. Given that a newly restored Privileges or Immunities Clause has the potential to impact both the Bill of Rights (including the Second Amendment) and various unenumerated rights (including privacy and sexual liberty), it's no surprise that Gans and Kendall want to weigh in on the progressive side. Which makes it all the more important to get the story straight.
Ratified in 1868, the amendment's roots stretch back to the anti-slavery politics that produced the Republican Party. After the Civil War, as the former Confederate states began enacting the Black Codes and other laws to restrict the political, civil, and economic rights of former slaves and their white allies, the Radical Republicans in Congress responded with the 14th Amendment, which reads in part: "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."
As Michael Kent Curtis demonstrates in his definitive history of the subject, No State Shall Abridge, and as Gans and Kendall note in their article, the Privileges or Immunities Clause was designed to nationalize the Bill of Rights and other fundamental liberties. Its purpose was to protect both natural rights (immunities) and civil rights (privileges) against tyrannical state governments. Slaughterhouse turned that design on its head.
At issue was a Louisiana law granting a 25-year slaughterhouse monopoly to a private firm. Writing for the Court's 7-2 majority, Justice Samuel F. Miller held that not only was the monopoly constitutional, but the Privileges or Immunities Clause actually meant something very different from what it said. According to Miller, the clause protected only a modest set of rights associated with the federal government, basically leaving the states free to regulate and restrict liberty as they saw fit.
Writing in dissent, Justice Stephen J. Field and Justice Joseph Bradley got things right. As Field declared, the amendment clearly protects those "natural and inalienable rights" that "belong to the citizens of all free governments," including "the right to pursue lawful employment in a lawful manner." Yet under the majority's tortured reasoning, he continued, this majestic provision had been reduced to a "vain and idle enactment."
"With the Privileges or Immunities Clause effectively displaced," Gans and Kendall note, "one of the Fourteenth Amendment's core ideas—that citizens have substantive constitutional rights that no government may abridge—has no firm textual foundation." That didn't stop Justice Field. Over the next three decades, writing largely in dissent, Field turned to the Due Process Clause to keep the core idea alive.
In Munn v. Illinois (1877), for instance, a case where the Court upheld legislation setting the storage rates for grain elevators, Field's dissent resounds with the principles of Lockean natural rights. Liberty, Field wrote, requires more "than mere freedom from physical restraint or the bounds of a prison." It necessarily includes the right of each individual to pursue "such callings and avocations as may be most suitable to develop his capacities." Similarly, the right of property must refer to more than just "title and possession" if it is to have any real substance. It must necessarily include the right to use and dispose of one's property, to set rates of compensation, and to profit.
In Butchers' Union Co. v. Crescent City Co. (1884), Field's dissent honed the classical liberal case even further. "Certain inherent rights lie at the foundation of all action," Field wrote. Among these "is the right of men to pursue happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the rights of others."
By the turn of the century, Field's eloquent individualism had migrated from the Court's minority to its majority. Most notably, the Court embraced his approach in Lochner v. New York (1905), striking down a maximum-working hours law for bakery employees as a violation of the 14th Amendment right to liberty of contract.
Over the next two decades, the Court explicitly relied on Lochner to further expand the rights protected against state violation. Foremost among these decisions are Buchanan v. Warley (1917), which struck down a residential segregation law for violating economic liberty, and Meyer v. Nebraska (1923), where the Court nullified a law banning foreign language instruction for children. As Justice James C. McReynolds held for the majority in Meyer, liberty "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
For their part, Gans and Kendall openly celebrate Meyer as a model for what the 14th Amendment should do, while at the same time denouncing Lochner as one of the Court's worst decisions. It's an incoherent position, to be sure, given that Lochner literally made Meyer (and Buchanan) possible. Take another look at McReynolds' majority opinion above, and you'll find liberty of contract right there at the top of his list.
What's even more troubling, however, is the fact that Gans and Kendall make no mention of Justice Field's key part in bringing all of this about. Although they quote favorably from his Slaughterhouse dissent (which they praise for its "powerful and cogent arguments rooted in the Constitution's text and history"), Field's name appears only in the footnotes of their article. His central role in expanding the 14th Amendment's protection of substantive liberty goes completely uncredited.
Maybe Gans and Kendall don't like the fact that a laissez faire man like Field played such a leading part in the amendment's history. Whatever the explanation, bad feelings don't change the facts. As Field's accomplishments demonstrate, it's the Constitution's libertarian legacy that's worth studying and celebrating, not its alleged "progressive promise."
Damon W. Root is an associate editor at reason.