The Supreme Court’s decision in The Slaughter-House Cases (1873) remains, at least in academic circles, a hotly contested battleground of competing legal theories concerning the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause. In a recent post at the Reason.com website’s “Hit and Run” Blog, Damon Root picked up on this debate with mild criticism of an article by Kevin Newsom, who was recently nominated to the Eleventh Circuit. Newsom’s article appeared in the Yale Law Journal seventeen years ago, in 2000, and is entitled Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases. (A little quick subtraction reveals that the article was published when Newsom, now 44, was just 27 years old – right after his clerkships for Diarmud O’Scannlain on the Ninth Circuit and David Souter on the Supreme Court.)
As it happens, I’ve read Newsom’s article – albeit some time ago – and found it remarkably good. (I have quickly re-read it to refresh my understanding.) Although I am not sure I agree with Newsom’s analysis on all points, it is extremely instructive – in addition to being carefully and engagingly written. It is a tour de force of legal scholarship. If I were to assign students just one law-review article on Slaughter-House as supplemental reading, I believe it would be Newsom’s. It carefully and fairly sets forth the debate over the case; it treats with precision the standard criticisms of the majority opinion; it provides valuable historical and legal context; and it articulates a clear thesis carefully critiquing the “standard” criticisms of the decision.
My own position on Slaughterhouse (set forth in compressed form elsewhere) ends up being fairly close to that taken in Newsom’s 2000 article: the case, while vulnerable to criticism for some of its analysis, is essentially correct in concluding that the right to run a competing animal slaughterhouse within the city of New Orleans (in opposition to the state-authorized monopoly) is not among the constitutional “Privileges or Immunities” incident to national citizenship. The core content of the Privileges of Immunities Clause is to protect against state abridgement the rights that citizens possess uniquely by virtue of such national citizenship. These most prominently include the rights, privileges, and immunities contained in the Bill of Rights and elsewhere in the U.S. Constitution.
Beyond that core meaning, there lies (in my view) a periphery of fairly arguable cases of federal statutory and treaty rights and traditional common law privileges, including those noted in Corfield v. Coryell, the famous Bushrod Washington District Court opinion noted with approval by several in the congressional debates comprising the “legislative history” of the Fourteenth Amendment, and the common rights of contract, property, and legal capacity protected by the Civil Rights Act of 1866.
One possible answer to the riddle of the Privileges and Immunities Clause is that, beyond its core minimum, the provision is subject to congressional interpretation and implementation to the extent of any indeterminacy, in the course of Congress’s exercise of its power under section five of the amendment “to enforce, by appropriate legislation” the amendment’s provisions. This appears to be the best way of understanding the notion that the amendment was intended to “constitutionalize” (in some sense) the Civil Rights Act of 1866. Simply put, the amendment’s Privileges or Immunities and Equal Protection Clauses, coupled with Congress’s section five enforcement power to enforce them through appropriate legislation (“appropriate” being a self-conscious echo of the broad Necessary and Proper Clause language as paraphrased in the leading case of McCulloch v. Maryland), provided more secure footing for Congress’s constitutional power to enact the Civil Rights Act of 1866 than it had had when it enacted it. (Congress initially had premised its authority to pass the Civil Rights Act of 1866 on its power to pass appropriate legislation to enforce the Thirteenth Amendment’s prohibition of slavery – a much more dubious proposition. Congress re-enacted the 1866 Act in 1870.)
To be sure, the modern Supreme Court rejected this broad (original) understanding of the enforcement power under section five, in City of Boerne v. Flores, twenty years ago this June. (The errors of City of Boerne are a subject for another occasion.) At all events, it seems hard to doubt as a matter of history that the Fourteenth Amendment, adopted so soon in the wake of Dred Scott and with the design in part of shoring up the lawfulness of the Civil Rights Act of 1866, was crafted so as to facilitate congressional enforcement choices and discretion to the extent the amendment’s provisions are written in general terms. It is historically far less plausible to read the amendment as a grant of judicial power to discern and enforce the full possible sphere of arguable privileges or immunities. The framers had had some recent bad experience with the exercise of judicial power to extrapolate new rights and privileges.
Newsom’s 2000 article does not go into all of this. His thesis is a simple but powerful one, impressively argued and exhaustively researched. He contends that the academic (and judicial) consensus – that Slaughter-House in effect read the Privileges or Immunities Clause entirely out of the Constitution – is a misunderstanding of the majority opinion and a position not sustained by a careful attention to its analysis and the arguments to which it was responding. The prevailing wisdom, Newsom argues, rests on an over-reading – a misreading, really – of the majority opinion as adopting the polar opposite of the position of the dissents, rather than as taking a narrower position sufficient to reject the specific anti-monopoly claim of the aggrieved white butchers while also leaving intact the possibility that the clause “incorporates” as limitations on state government the protections of the provisions of the Bill of Rights and other provisions of the U.S. Constitution.
Newsom argues that Slaughter-House sensibly can be read as rejecting only the radical judicial-activist reading of the Privileges or Immunities Clause propounded by plaintiffs’ counsel in the case (and adopted in various forms by the dissenting opinions) as an absolute prohibition of state governments enacting any legislation impairing, restricting or regulating common-law rights, civil rights (to contract, property, and the like), and economic rights. Such non-constitutional legal “rights” were traditionally subject to state regulation and definition and did not owe their character as rights to anything in the federal Constitution (or other federal law). Slaughter-House holds only that such rights are not embraced by the Privileges or Immunities Clause. Thus, Newsom argues, one need not overrule Slaughter-House in order to conclude that the Privileges or Immunities Clause – and not the Due Process Clause – is the provision that properly “incorporates” the Bill of Rights against the states. The majority opinion in the case leaves that question open and can even be read, Newsom suggests, as indirectly endorsing incorporation.
Newsom thus concludes that the Privileges or Immunities Clause does the true work of “incorporation” of the Bill of Rights (and other federal constitutional rights) as limitations on state power; that adopting such an understanding does not require the further and unwarranted conclusions of the Slaughter-House dissenters; that Justice Miller’s majority opinion is best read as rejecting the latter but not the former; that the Due Process Clause is about process, not substance (and that the idea of “substantive due process” is flawed, literally four different ways); and that incorporation through the Due Process Clause is affirmatively improper and an error that ought to be remedied. (On this last point, Newsom’s 2000 article anticipated by a decade the position of Justice Thomas’s concurring opinion in McDonald v. City of Chicago (2010), in contrast to the position of Justice Alito’s plurality opinion in that case, which deferred to precedent resting “incorporation” on the Due Process Clause.)
All of this seems rather clearly right. While it is true that some politically libertarian legal theorists would prefer the more activist, judicially-enforceable-substantive-economic-liberties reading of the Privileges or Immunities Clause championed by the Slaughter-House dissenters – that is the essence of Damon Root’s reasonable and measured post – Newsom’s position (seventeen years ago) is the one that in my view has the better of the legal debate.
It would be a mistake to exaggerate the extent of any conflict with the more libertarian view, however. Newsom’s 2000 Yale Law Journal article is not so much about repudiating the views of the Slaughter-House dissenters as it is about seeking a sensible middle-ground reading of the majority opinion in the case that does not entail reading it as eviscerating the Privileges or Immunities Clause. There is considerable common ground here. More to the point, Newsom’s article demonstrates (at a young age) a highly sophisticated, scholarly, careful, disciplined legal mind – one that takes the Constitution’s text, structure, logic, and history seriously on their own terms and not as mere springboards for writing one’s preferred policies into the Constitution.
Reasonable minds can certainly disagree over the proper reading of the Privileges or Immunities Clause of the Fourteenth Amendment and the proper understanding of the majority and dissenting opinions in Slaughter-House. But nearly everybody should agree that the care, scholarship, and legal acumen displayed in Setting Incorporationism Straight are highly desirable qualities for a federal Court of Appeals judge.