Does the 14th Amendment Protect Economic Liberty?

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As Brian Doherty recently reported, the upcoming Supreme Court gun rights case McDonald v. Chicago has caused a number of conservative legal outfits to criticize the strategy employed by lead attorney Alan Gura, who seeks to nullify Chicago's draconian handgun ban by getting the Court to restore the Privileges or Immunities Clause of the 14th Amendment and overturn the disastrous Slaughterhouse Cases of 1873 (which upheld a Louisiana slaughterhouse monopoly and gutted the Privileges or Immunities Clause).

Writing in today's Washington Times, Ken Klukowski and Ken Blackwell of the conservative American Civil Rights Union reveal why some folks on the right are so nervous:

What's so important about [Slaughterhouse] is that there's nothing in the Constitution about such an economic right. Had the court accepted the butchers' argument and struck down the Louisiana law, federal courts would have the power to declare anything they want to be a right of U.S. citizenship and strike down any state or local law they don't like.

Of course, there is something in the Constitution about "such an economic right." It's called the Privileges or Immunities Clause, which was specifically written and ratified to protect the civil, political, and economic rights of the recently freed slaves and their white allies from abuse by the former Confederate states. As the historical record clearly shows, that included the right to armed self-defense, the right to free speech, the right to own property, and the right to earn an honest living free from unnecessary and arbitrary state abuse. Under the 14th Amendment, no state shall abridge those rights. That's why Slaughterhouse deserves to die.

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  1. Under the 14th Amendment, no state shall abridge those rights. That’s why Slaughterhouse deserves to die.

    The problem is with the 14th Amendment itself – it violates the 9th and 10th Amendment. The ACRU is right in this one. The problem is not with States abridging fundamental rights, but with the Fed Gov INVENTING rights and then deciding that the States are abridging them, thus nullifying any sovereignty the States enjoy – the Cosntitution becomes dead letter, ipso facto (even though is practically dead letter as it is.)

    1. If everyone uses the Framers’ definition of “right” — as one hopes beyond hope that they do — then there is no problem.

    2. By that reasoning the 21st amendment “violates” the 18th amendment.

      1. No, because the 21st was specifically worded AND ratified to annul or repeal the 18th. No such specific language or intention exists in the 14th – that Amendment simply

        1. All amendments “amend” the constitution. Any contradiction between A and B, defaults to the latter amendment.

          1. Then, robc, by virtue of its implications, the 14th Amendment has rendered the 9th and 10th meaningless, even when the 14th does not specifically say so.

            1. Then, robc, by virtue of its implications, the 14th Amendment has rendered the 9th and 10th meaningless, even when the 14th does not specifically say so.

              Indeed.

        2. No such specific language or intention exists in the 14th – that Amendment simply contradicts the provisions in the 9th and 10th Amendment by virtue of its implications.

          Either the 14th Amendment is being misinterpreted in such a way it negates the 9th and 10th, or the 9th and 10th are virtually dead letter.

          1. As demonstrated in Raich, the 9th and 10th are virtually dead letter, but be that as it may…

            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.

            While one could say this text supersedes the 10th Amendment by removing states’ power to violate indivudals’ 9th Amendment rights, there is no conceivable reading of this clause that at all contradicts the 9th Amendment.

        3. The 12th amendment set the precedent that the US Constitution not be consolidated, and that contradictions are resolved by having the later provision supersede the earlier. Why they did it that way, I don’t know, but it’s understood by all. Maybe they just wanted a record of all the changes and intermediate versions. As long as it’s not amended much, it’s not too hard, but once there are a lot of amendments you’ll have to read it like Hebrew.

  2. What’s so important about [Slaughterhouse] is that there’s nothing in the Constitution about such an economic right.

    *cough*…ninth amendment…*cough*

    1. So what rights does the Ninth Amendment protect?

      1. Whatever rights already existed. Go figure.

        1. Clearly, same-sex “marriage” was not one of those rights, despite what the plaintiffs in Baker v. Nelson alleged.

          1. Marriage isn’t a right — at least not a right as used by the writers of the Ninth Amendment. Marriage is an entitlement — a construct of government, not a preexisting individual right secured by government. It should be granted equally, as noted in the equal protection clause, but it is not a right.

            1. So if men could marry people of either sex, but women could only marry men, that would be unconstitutional (assuming such a policy is ever adopted in the first place).

  3. The problem is with the 14th Amendment itself – it violates the 9th and 10th Amendment.

    A subsequent amendment cannot violate a previous amendment (or the original text).

    The problem is not with States abridging fundamental rights, but with the Fed Gov INVENTING rights and then deciding that the States are abridging them, thus nullifying any sovereignty the States enjoy.

    I would say that the process of nullifying State sovereignty accelerated after Slaughterhouse, OM, so I really can’t share this concern.

    And I am less concerned with State soveriegnty as against the feds than I am with than with individual rights against both. If Gura wins on his theory, it doesn’t really give the feds any power over states they don’t already have, but it will give individuals a tool to use to defend their autonomy against the the Total State.

    1. If Gura wins on his theory, it doesn’t really give the feds any power over states they don’t already have, but it will give individuals a tool to use to defend their autonomy against the the Total State.

      This.

  4. Which is why we’re gonna lose. Nobody wants individuals to have more power.

    1. That is what, I believe, will happen in the end, as it has always happened – we lose, they (the bureaucrats) win.

  5. The problem is with the 14th Amendment itself – it violates the 9th and 10th Amendment.

    A subsequent amendment cannot violate a previous amendment (or the original text).

    Uh, say what? Methinks you Have not heard of Prohibition?
    The 18th Amendment was abolished by the 21st Amendment.

    1. You guys agree. The point is that any subsequent Amendment, by definition, modifies any other conflicting provision because nothing is supreme to an Amendment and more recent statutes trump — the intent of Congress to modify in inferred.

      The guy who said the 9th/10th trump the 14th doesn’t have any idea what he’s talking about.

      1. I didn’t say the 9th and 10th TRUMP the 14th. I said the 14th violates the 9th and 10th (or contradicts them) in their entirety.

    2. The 18th Amendment was abolished by the 21st Amendment.

      That’s because the 21st Amendment states this and was ratified for that very reason. The 14th Amendment simply contradicts the provisions in the 9th and 10th Amendment by its very language, but was not ratified to specifically repeal or annul the 9th and 10th Amendment, certainly that was not the intention.

      So if RC Dean and you are correct, the 9th and 10th Amendment have been for all intents and purposes replaced by the 14th. If not, then the text of the 14th contradicts those amendments and goes against state sovereignty.

      1. I prefer the 9th and 10th, quite honestly.

  6. I would say the 14th modifies the 9th and 10th, to make clear that the powers reserved to the states cannot be used to violate the privileges and immunities of US citizens. That stills leaves plenty of scope for legitimate exercises of sovereignty.

    1. So what constitutes privileges and immunities?

      Those that existed at the time of the ratification of the United States Constitution, the time of the ratification of the Fourteenth Amendment, or what?

  7. And, let me add, in no way expands the power of the national government. Limiting the power of states to violate their citizen’s rights does not transfer any power to DC.

  8. I’m not a constitutionalist; I hold individual rights above any “rights” States possess. State’s rights isn’t legitimate concept; I care more about the oppression of individuals than the “oppression” of states. None of the 50 states of the union should be allowed to trammel on individual rights.

    The Constitution is a shitty document from a libertarian standpoint; gives way too much power to federal, state, and local governments. We’ve treated this charter like a holy documents; I really wish we took Jefferson’s suggestion and wrote a new constitution every generation.

    1. A new Constitution every generation? I really like Jefferson but that’s a lame idea. Mostly because those holding government office gets to write it.

      Why should a grandfather have to give up his guns because his grandson’s generation decided not to include a right to bear arms?

      Think about it, the only reason we have the liberty we do have is because of that old document. Give the government the ability to rewrite it, in total, you will get far greater government control than you might imagine.

    2. Tristan – well said. The sad fact is that the Constitution is far from being a libertarian document.

    3. TrickyVic is right.

      The UK essentially rewrites its Constitution continuously. They were more laissez faire in the mid-19th century than the US when liberalism was all the rage. They were more socialist in the mid-20th century than the US when socialism was all the rage.

      I fear the document that a Constitutional Convention would create today.

      1. “I fear the document that a Constitutional Convention would create today.”

        Join the club. Let’s try actually honoring our current constitution before we toss it out in favor of a new one, shall we?

  9. I’d be thrilled beyond belief if we’d roll back to the limited government envisioned in the Constitution. It’s not perfect, but it beats the hell out of what we have today.

    Incidentally, the concept of states’ rights is more about the states acting as a check on federal authority than on any inherent right of the states. I do agree that the more the rights of the individual are placed ahead of the “rights” of the federal and state governments, the better off we’d be.

    1. Note that the Framers weren’t confused in what was a right and what wasn’t: the 9th speaks of rights; the 10th speaks of powers.

      1. IMO, the phrase “states’ rights” should be taken to mean “states have the right to not be forced to live under the rule of federal mandates”.

        But any time one says “states’ rights”, there’s some liberal douche whining about how that was the argument over slavery, and QED anyone who wants states to have individual autonomy = someone pining for the days of slavery, or at least segregated lunch counters.

        I know, it’s a stoopid argument, but that’s what we get from the left.

        1. Actually, the Constitution grants no power to Congress to force lunch counters to desegregate. That would have to be done at the local level, with pickets, boycotts, or state laws (which may violate the 5th Amendment depending on your reading of the Constitution).

          Now, if the lunch counter was built on a state border, and in order to serve customers the waitstaff had to transport the food across the state line, then it would be an interstate lunch counter and could be regulated by the federal government.

          1. However, the Fourteenth Amendment does grant the power to Congress to prohibit states from requiring that lunch counters be segregated — a state power that violates the rights of association and contract.

            1. How exactly? The owner or manager of the lunch counter establishment has the right to associate with anyone he or she wishes, right? It doesn’t matter if he segregates the business according to height, sex, or favorite ice cream flavor. It’s within his rights unless otherwise prohibited by a state constitution.

              1. It is absolutely within a private proprietor’s rights to segregate his accommodations or services however he wishes.

                Yet the state does not have the legitimate power to mandate segregation of private accommodations. And that is exactly what so many states did with Jim Crow laws. It was entirely right and just that the federal government struck down those laws.

                It was, of course, an exercise of illegitimate power for the federal government to go beyond overturning state laws mandating segregation and itself mandate desegregation in the private sphere.

                By the way, a state’s constitution can only recognize and secure an individual’s actual individual rights. It cannot grant them or prohibit them.

  10. I’d be thrilled beyond belief if we’d roll back to the limited government envisioned in the Constitution. It’s not perfect, but it beats the hell out of what we have today.

    Hear, hear. Rolling the Total State back to the enumerated powers and individual rights as guaranteed on the page of the Constitution would be massively libertarian.

  11. Wow, where’s Tony and Chad and that crayon POS? This is right up their alley – an argument over whether states should have any autonomy, or be forced to accept every federal decree that comes from those schmucks in D.C.

  12. Ken Blackwell- the joke from Ohio? He’s a piece of shit. So I’m gonna have to go with reason on this one.

  13. federal courts would have the power to declare anything they want to be a right of U.S. citizenship and strike down any state or local law they don’t like.

    Yeah, I’m not seeing much of a downside when phrased this way.

    OTOH, one can make the argument that this is a slipery slope for federal courts to go ‘activitist’ and force states and local govt’s to implement programs that provide the “right” to education, health care, etc.

    But as RC Dean and others said above, we’re most of the way there already

    1. “OTOH, one can make the argument that this is a slipery slope for federal courts to go ‘activitist’ and force states and local govt’s to implement programs that provide the “right” to education, health care, etc.”

      That is why conservative jurists like Bork and Scalia shy away from the Privileges and Immunities Clause of the 14th Amendment, as well as the 9th Amendment. They are well aware of the mostly left-leaning community of law professors who have long seen these clauses as potential tools for expanding government power, entitlements and regulatory scope. They have apparently decided that the “safer” course is to leave these clauses moribund.

  14. Slaughterhouse, stand in line. – Wickard

  15. Really? How did you duck Lochner v. New York. In that case (1905), the court DID find that the equal protection clause contained a compelling right to economic liberties. Specifically, the court struck down a law that regulated baker working conditions/hours because it interfered with the “right to contract.” The court clung to Lochner for decades and struck down every piece of progressive legislation that came before it. Only the Great Depression offed Lochner as good law.

    The Slaughter House Cases are not really what you should have cited…

  16. There is a desire, by many, to overturn the Slaughterhouse Cases, using the McDonald case as the means. The reason centers on the Privileges or Immunities Clause of the Fourteenth Amendment. Those who wish to overturn Slaughterhouse Cases believe: a) that there is only one citizen under the Constitution since the ratification of the Fourteenth Amendment and the Slaughterhouse Cases, b) that the privileges and immunities of this citizenship; that is citizenship of the United States, should be those described in Corfield v. Coryell. They do not know that there is a second citizenship now under the Constitution (and not the Fourteenth Amendment), and that this citizenship has those privileges and immunities described in Corfield v. Coryell. This citizenship is citizenship of the several states.

    The fact there is a citizen of the several States in law is settled!

    http://www.australia.to/index……p;id=16289 . [Footnote]

    The 14th Amendment states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Whether it includes the Second Amendment is what the Supreme Court will determined. If it is a privilege or immunity of a citizen of the United States, then it will have to be one which owes it “existence to the Federal government, its National character, its Constitution, or its laws.” Slaughterhouse Cases, page 79.

    ________________________

    Footnote

    So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:

    http://citizenoftheseveralstat…../index.htm

  17. To everyone, (Part 1 of 2)

    I am writing to inform you that the link I provided in my prior comment (Dan Goodman 12/26/09 @ 3:31am) no longer works. The new location for it is:

    The fact there is a citizen of the several States in law is settled!

    http://www.australia.to/2010/i…..amp;id=329

    ____________

  18. To everyone, (Part 2 of 2)

    There is also the following which I think would be appropriate.

    Comment on Petitioner’s Brief: McDonald v. City of Chicago

    http://www.australia.to/2010/i…..Itemid=126

    http://www.americanchronicle.c…..iew/136777

    ___________

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