Supreme Court

Libertarian Legal Scholars Reject Trump Judicial Nominee's Views on 14th Amendment

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Gage Skidmore / Flickr.com

One of President Donald Trump's federal court nominees favors an interpretation of the 14th Amendment that libertarian legal scholars have roundly rejected.

Kevin Newsom, the former Alabama solicitor general recently nominated by President Trump to the U.S. Court of Appeals for the 11th Circuit, is the author of a January 2000 article in the Yale Law Journal in which he argues that the Supreme Court's 1873 decision in The Slaughter-House Cases correctly held that the Privileges or Immunities Clause of the 14th Amendment offers zero protection for economic liberty. That view is hotly contested by libertarian constitutional experts.

At issue in The Slaughter-House Cases was a Louisiana statute that granted a private corporation a lucrative 25-year monopoly to operate a central slaughterhouse for the city of New Orleans. A group of local butchers challenged the law in federal court, arguing that the monopoly was a special-interest boondoggle that served no legitimate health or safety purpose and violated their fundamental rights to earn a living free from unnecessary government control. According to the butchers, the right to economic liberty was one of the privileges and immunities of U.S. citizenship recently secured against state abuse by the 1868 ratification of 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."

From the standpoint of constitutional text and history, the butchers had a strong argument. The debates over the framing and ratification of the 14th Amendment make it clear that the provision was originally understood to protect economic liberty. Indeed, according to the principal author of the Privileges or Immunities Clause, Republican Congressman John Bingham of Ohio, "the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States" includes "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

But the Supreme Court saw things differently. Adopting a posture of judicial deference, the Court ruled 5-4 in favor of the state legislature and effectively eliminated the Privileges or Immunities Clause from the Constitution. According to the majority opinion of Justice Samuel Miller, the Court had no business acting as "a perpetual censor upon all legislation of the States." To rule otherwise, he said, would "fetter and degrade the State governments." The Privileges or Immunities Clause basically offered no real protection at all, Miller insisted, except for a handful of mostly inconsequential federal rights, such as the right to access federal waterways. Slaughter-House rendered the clause toothless against virtually all state action.

Because Slaughter-House was the first case in which the Supreme Court interpreted the meaning of the new 14th Amendment, the ruling had a transformative impact on the future course of American law. Its significance cannot be easily overstated.

Today, a growing number of constitutional originalists, particularly those associated with the libertarian wing of the conservative legal movement, have concluded that Slaughter-House was wrong the day it was decided and therefore deserves to be confined or even overruled by the Supreme Court.

For example, according to Clint Bolick, the Institute for Justice co-founder who currently serves as an Arizona Supreme Court justice, Slaughter-House is "one of the worst decisions in American law." In Bolick's view, the ruling eviscerated "one of the most sacred and central rights of Americans: economic liberty, the right to pursue a business or occupation free from arbitrary or excessive government regulation." Georgetown law professor Randy Barnett, one of the most influential originalist scholars at work today, has likewise concluded that Slaughter-House "ignored the original meaning" of the 14th Amendment.

To be sure, Slaughter-House has had its defenders, particularly among the school of legal conservatives who favor a more deferential judiciary. For example, the late Robert Bork, who famously maintained that, "in wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities," insisted that Slaughter-House represented a "sound judicial instinct" and should be applauded as "a narrow victory for judicial moderation." Along similar lines, Ken Blackwell of the Family Research Council, writing with Ken Klukowski of the American Civil Rights Union, has argued that "what's so important about [Slaughter-House] is that there's nothing in the Constitution about such an economic right." If the case is ever overturned, the two have argued, "activist" judges might "use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, and business regulations around the country."

Kevin Newsom, Trump's nominee for the 11th Circuit, falls in the Bork-Blackwell-Klukowski camp. In the Yale Law Journal, Newsom praised the Slaughter-House majority opinion for its "judicial restraint" and for its opposition to "the constitutionalization of laissez-faire economic theory." When it comes to the "economic rights claimed by the butchers" in Slaughter-House, Newsom maintained, the Court was right to conclude that "the 14th Amendment did not safeguard [them] against state interference."

Newsom's views on the 14th Amendment thus put him directly at odds with the flourishing camp of libertarian-minded lawyers, judges, and scholars whose influence on the conservative legal movement has been on the upswing in recent years.

It remains to be seen if this clash of constitutional visions will play any role in Newsom's confirmation hearings before the Senate Judiciary Committee.

NEXT: My review of James Pfander's 'Constitutional Torts and the War on Terror'

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  1. Conservatives love big [state] government.

  2. Since Slaughterhouse was decided before incorporation was a thing it shouldn’t be too difficult to overrule.

    1. It’s hard to disagree with a SCOTUS that acknowledges the line of jurisdiction between states and fed. The doctrine of incorporation may be a thing, but it is a bad thing.

      1. If SCOTUS never decided to incorporate the Bill of Rights they would completely undermine the notion of natural law that rights are innate features of our existence. Federalism is important, but individual sovereignty comes before state sovereignty.

  3. When it comes to the “economic rights claimed by the butchers” in Slaughter-House, Newsom maintained, the Court was right to conclude that “the 14th Amendment did not safeguard [them] against state interference.”

    Christ, what an asshole. DIAF, cockstain.

  4. Slaughter house rules are license to monopolize In California and should removed. all of your small time ranchers are forced to take their cattle to far distances away to get them slaughtered if they want to do more then just turn them into hamburger

  5. THE HAG LOST GET OVER IT

    1. What?

  6. he argues that the Supreme Court’s 1873 decision in The Slaughter-House Cases correctly held that the Privileges or Immunities Clause of the 14th Amendment offers zero protection for economic liberty

    Any word on what he thinks of the Ninth and Tenth and the whole political philosophy undergirding American government, the idea that maybe regardless of what the 14th says human beings are still endowed by their Creator with natural rights to economic liberty and absent a Constitutional clause to the contrary the government may not infringe on those rights?

  7. Well, the 14th amendment was drafted to safeguard freed blacks so it isn’t hard to imagine it wasn’t intended to protect whites.

    So long as the stupid rules apply to whites, the original intent of the 14th is upheld. The only difference might be if it were a regulation aimed at carpet baggers.

    1. I’m having trouble finding the words “black” or “white” in the 14th Amendment. It may have been motivated by racial injustices, at that time directed toward black people, but the amendment is written to ensure all Americans are treated equally under the law. Given all the current federal endorsement of racial discrimination, it doesn’t seem to be working very well.

      1. Ever hear of politicians making high-minded arguments for laws, when it is clear that they are not giving you what their true intentions are? Just look at some of the ridiculous titles given to laws passed, that have almost no bearing on what the law, really does.
        Such is the case for the 14th.
        Read the whole thing and you will see that it was almost entirely aimed at enshrining punishment on those who believed in the secession of the Confederate States, including, as Bubba states, safeguarding the recently freed slaves, who had been singled out for judicial interpretations, that were inimical to the freedoms everyone else lived with. “Dred Scott” basically called black people non-citizens.
        Unfortunately, as happens, this amendment, written just after the highly emotional time of such a destructive war, was poorly drafted and has been used, most recently, to completely turn the intent of the Constitution on its head – substituting the impossible to quantify “equality” for the intended concept of personal liberty.

  8. statute that granted a private corporation a lucrative 25-year monopoly to operate a central slaughterhouse for the city of New Orleans

    As I always try to bring up in discussion or regulation with my lefty friends, there has not been a monopoly in the US that was not facilitated by the gov’t.

    1. Try the monlpoly of Standard Oil formed by J.D. Rockerfeller and his co-horts. They had no government assistance but they managed to bilk the public all on their own. They did it so well that 4 generations later, his descendents haven’t been able to spend all the money he “earned.” I don’t remeber the title of the book about this monopoly but it does make clear that the reason they got away with it was that the government did nothing to stop them because there were no laws they could use at the time. Read Ida Tarbell, Lincoln Steffens et al for some really great discussions about non-government inspired or promoted monopolies. The Chicago meat packing operation is another one that sprang full formed from the minds of businessmen with no government interference.

      1. Standard Oil made kerosene cheaper than anybody else. The consumer benefited greatly from their innovations. He also made other distillates from oil to that fed other industries. Standard Oil was a giant because they were better than everybody else.

  9. RE: Libertarian Legal Scholars Reject Trump Judicial Nominee’s Views on 14th Amendment

    Monopolies are wonderful.
    The US government is the biggest monopoly of all in our country, and just look at all the wonderful things it has done for us.
    Unnecessary wars.
    Miles of red tape to suffocate business growth.
    Rampant cronyism to ensure the politically connected become rich off the taxpayers’ money.
    Making sure we go so far in debt that the USA will end up collapsing like the old USSR did.
    I could go on, but I think everyone here understands the many wonders and benefits the US government monopoly is and how it is dong everything in its power to ensure our lives turn to shit the best it can.

  10. Now, I’m confused. I thought the whole idea behind President Roosevelt’s court packing scheme was to stop the conservative justices from voiding New Deal programs by citing just the part of the 14 Amendment which was used here. They threw out laws against child labor, the eight hour day and various other economic requirements using the reasoning the butchers used. Am I wrong? I know they cited parts of the 15 Amendment as well but did they use some other reasoning too?

    1. The 14th was so poorly written that almost any interpretation can be justified.
      That’s why it needs to go the way of the 18th.
      Any ruling based on it has caused more turmoil than any other part of the Constitution.

  11. Newsom will fit right in on the 11th Circuit Court of Appeals, a court well-known for its lack of appreciation for any of the rights of persons accused of crimes. The Constitution and Bill of Rights are mere parchment to those defenders of the statist quo.

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