Privileges and Immunities: A Lost C(l)ause?

Section 1 of the Fourteenth Amendment, arguably the most important addition to the Constitution since the Bill of Rights in 1791, reads, “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.”

Thus, of the three guarantees, unlike the last two, which are promised to every “person,” “privileges and immunities” is restricted to Americans citizens.  But also unlike the last two, “privileges and immunities” is no longer available to those citizens as a guarantee of fairness under law.

The reason is rooted in one of the odder cases in American legal history, which focused on a group of tradesmen with incredibly disgusting business practices.

In New Orleans, butchers had a long history of ignoring public outcry and blithely sweeping the bones, organs, body parts, dung, and urine of cows, sheep, and pigs into the Mississippi, such that bits of these products would occasionally flow out of water taps.  Periodic epidemics of cholera and yellow fever were the result. 

Finally, in 1869, the city passed a law that required butchers to slaughter, gut, and carve up animals in a single facility—downriver from the water mains—under the supervision of trained inspectors.  There was a use fee involved but butchers would no longer need to pay for their own workspace. 

The butchers sued.  New Orleans was then under a Republican administration, which, thanks to Reconstruction, for the first time included Black participants.  African Americans were also liberally represented in other government positions.

With the encouragement of white supremacist Democrats, the butchers claimed that forcible relocation amounted to “involuntary servitude” in violation of the Thirteenth Amendment, and that the Fourteenth Amendment protected their “privileges and immunities” of citizenship, in this case the right to conduct business how and where they wished. 

The suit, dubbed the Slaughter-House Cases, eventually made its way to the Supreme Court. 

Appearing for the butchers was former Supreme Court Justice John Archibald Campbell, who had left the Court after secession in 1861 to become assistant secretary of war for the Confederacy.  After Lincoln’s assassination, Campbell was arrested and held in jail for six months as a potential conspirator.

His chief opponent would be Justice Samuel Freeman Miller, a no nonsense, plain-spoken champion of equal rights.  Miller had been born into a slave-holding family in Kentucky but grew to detest slavery and those who practiced it. 

Miller was more familiar with cholera than anyone on the federal bench—before entering the law, he had been a doctor who had specialized in its treatment.  That most physicians treated the disease with medieval remedies—bleedings and purgatives—infuriated him.  Miller was convinced that cholera was transmitted through unclean water, instead of “indigestible vegetables” or “filthy and intemperate habits of the urban poor,” but few would listen to him.   He abandoned medicine because he could no longer bear to watch so much needless suffering, went into law, and was eventually nominated by Abraham Lincoln to the Supreme Court.

Miller and Campbell, both first-rate intellects, loathed one another.

Knowing how much Miller wanted to rule against him, Campbell set a trap.  Through the privileges and immunities clause, the Fourteenth Amendment was meant to impose federal citizenship rights on the states, although it did not say so explicitly. Those who drafted the amendment had aimed that provision squarely at the welfare of newly freed slaves. 

But the clause did not specify race, so Campbell insisted that it covered white citizens as well as black.  Louisiana, he argued, thus had no right to arbitrarily herd butchers into a common facility and force them to pay fees to ply their trade.  Unless, of course, state citizenship was different than national citizenship, with different privileges and immunities than those in the Constitution.  In that case, state governments could do things the federal government could not. 

Campbell had created an extremely clever argument.  The Court could either support him and use the Fourteenth Amendment to protect a group of white, racist butchers who were poisoning New Orleans’s drinking water, or they could rule against him and limit the Fourteenth Amendment’s reach by narrowing when its guarantees could be applied…especially, Campbell intended, for people of color.  Although he almost certainly did not inform his clients, Campbell’s personal agenda of undermining Reconstruction would be much better served if he lost the case.

Which he did. 

On April 14, 1873, by a 5-4 vote, the Court ruled that New Orleans had the right to require the butchers to relocate their businesses.  Miller, writing for the majority, first dismissed the notion that Louisiana had mandated “involuntary servitude,” as defined by the Thirteenth Amendment, then when on to lecture Campbell on the meaning of the post-Civil War amendments.  “An examination of the history of the causes which led to the adoption of those amendments and of the amendments themselves demonstrates that the main purpose of all…was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.”  The Fourteenth Amendment, therefore, had certainly not been enacted to shield white butchers from a state law meant to protect the health of its citizens.

But in his eagerness to attack Campbell, Miller fell into his trap.  To justify Louisiana’s action, Miller was forced to assert that there was a “balance between State and Federal power,” and affirmed “that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property, was essential.”  In granting Louisiana license to force the butchers downriver, Miller established that there was a difference between citizenship in the United States and citizenship of a state, which meant that privileges and immunities might mean different things to each. 

So, in overruling Campbell, Miller prevented the privileges and immunities clause of Fourteenth Amendment from being used against state laws, which was exactly what Campbell had hoped he would do.  Other rights that might be considered “privileges” of citizenship—like voting—could now be left almost solely to the whim of states.  As a result of Miller’s blunder, the man on the Court most determined to protect black Americans turned what should have been the strongest guarantee in the Fourteenth Amendment into the weakest. 

Privileges and immunities has been moribund ever since.

It is time to resurrect it.

The civil liberties of many Americans, especially those who are members of marginalized minorities, are under increasing threat from a Supreme Court determined to remake the United States as an intolerant quasi-theocracy.  Still, as the reaction in red states to the Dobbs ruling and Florida voters’ decision to re-enfranchise former felons demonstrates, the Court might actually be too conservative for the rest of the nation.

If that is true, and with the Court’s approval ratings at an all-time low, keeping the pressure on, as fruitless as it may sometimes seem, is the best way to try to wear down at least some of the conservative justices.  And for that, appellants need every weapon they can find.  Privileges and immunities would be an excellent addition to the arsenal.

There are dangers.  Clarence Thomas, for example, favors using privileges and immunities to limit freedoms, not expand them.  “Under his approach,” the Texas Law Journal notes, “rights such as abortion or same-sex marriage would not be considered privileges of ‘American citizenship’ entitled to constitutional protection.”

Still, there seems little risk since the Court has demonstrated a willingness to abrogate these rights by other means.  In addition, since a number of justices have advocated throwing aside precedent, privileges and immunities might be an apt vehicle to initiate a new slew of challenges by those who believe in equal justice under law.