Restoring the Privileges or Immunities Clause
Why the 14th Amendment matters in the fight for a free society
Last week the Institute for Justice (I.J.), a public interest law firm dedicated to protecting economic and political liberty, filed a federal lawsuit on behalf of Boston entrepreneur Erroll Tyler, whose attempts to start an amphibious sightseeing business have been repeatedly thwarted by city officials who refuse to grant him a license. Under state law, the Boston police commissioner has the authority to regulate all sightseeing vehicles that either originate in the city or stop there to pick up passengers. Yet as the lawsuit notes, Tyler's operation will be based out of nearby Cambridge and his vehicles will make no stops within Boston. They will simply travel the streets like any other car, truck, or bus, making their way to Boston Harbor, where they will fall under federal jurisdiction. For its part, the city claims that a massive public works project that has had no impact on traffic for the last three years requires a "moratorium" on new sightseeing licenses.
This is a classic case of unnecessary and arbitrary regulations that violate fundamental economic rights. It's also significant because I.J. has brought suit under the Privileges or Immunities Clause of the 14th Amendment, which reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." (The suit cites the amendment's Due Process and Equal Protection Clauses as well.) The Privileges or Immunities Clause, which was designed to protect substantive individual rights from state abuse, has been essentially dead since the Supreme Court's 1873 decision in The Slaughterhouse Cases, which held that it guarantees only a narrow set of national rights, such as the freedom to travel between states.
Given that I.J. has unsuccessfully raised the issue before, why try to resurrect the clause now? The answer is District of Columbia v. Heller, the Court's landmark 2008 decision holding that the Second Amendment secures an individual right to keep and bear arms and that D.C.'s gun laws violated that right. One big question Heller did not answer is whether the Second Amendment applies only to the federal government (which oversees Washington, D.C.) or to state and local governments as well. That's where the 14th Amendment comes in. Through a series of decisions, the Court has gradually "incorporated" most of the Bill of Rights, making its guarantees applicable to the states via the 14th Amendment's Due Process Clause. When the question of Second Amendment incorporation inevitably reaches the Supreme Court, the Privileges or Immunities Clause also is likely to receive some long overdue attention. Last month, I.J. filed a friend of the court brief (PDF) in the case of McDonald v. Chicago, which challenges Chicago's draconian gun control laws, providing detailed historical evidence that the Privileges or Immunities Clause "protects substantive rights from incursion by state and local governments, and [that] the right of citizens to keep and bear arms for self-defense is among the most important of those rights."
At least one prominent leftist group agrees. Last December, the Constitutional Accountability Center (CAC), a think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history," released a well-crafted, though dangerously incomplete study entitled, "The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment." This document argues that while the Privileges or Immunities Clause does safeguard gun rights from state abuse, it does not protect economic liberty.
The problem with that argument is that the 14th Amendment was written and ratified both to nationalize the Bill of Rights (along with certain unenumerated rights) and to enshrine the free labor philosophy of the anti-slavery movement, which was based on an individualistic and market-oriented form of self-ownership. The abolitionist leader and escaped former slave Frederick Douglass, in his autobiography My Bondage and My Freedom, recalled the "rapturous excitement" of his first paying job: "I was now my own master—a tremendous fact." As the historian Eric Foner has put it, "To Douglass, the wage represented not a mark of oppression but a symbol of a fair exchange, reflecting the fact that for the first time in his life he enjoyed the fruits of his labor."
Such views are central to the historical backdrop that led the Radical Republicans to draft both the Civil Rights Act of 1866 and the 14th Amendment. In each case, they sought to protect African Americans and their white allies from the depredations of the former Confederate states, including the infamous Black Codes, which curtailed property rights, liberty of contract, free speech, and the right to keep and bear arms.
Modern liberals might not like the sound of it, but the fact remains that the 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government. A fully restored Privileges or Immunities Clause would help keep the Second Amendment secure and protect entrepreneurs like Erroll Tyler. Here's hoping the Court recognizes it sooner rather than later.
Damon W. Root is an associate editor at Reason.