In his dissent in the Slaughter-House Cases, Justice Field argued that the Supreme Court’s interpretation of the Fourteenth Amendment made it “a vain and idle enactment.” Field felt the majority’s holding that the ‘Privileges and Immunities’ clause did not impose the Bill of Rights onto state legislation subverted the purpose of the amendment. The clause reads “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….” (Sources at A-13) Justice Field was correct in his opinion, the Fourteenth amendment ought to protect “the natural and inalienable rights which belong to all citizens,” and the Court thus erred the Slaughter-House Cases. In later decisions, however, the Supreme Court incorporated federal protections for state citizens through the ‘due process’ and ‘equal protections’ clauses. This essay will first describe the posture and holding of the Slaughterhouse case, followed by excerpts from the amendment’s legislative history, which support incorporation through the Privileges and Immunities Clause. Finally, this essay will discuss later court decisions covered in this course, which shape the Fourteenth Amendment’s modern application.
In the Slaughter-House cases, the Louisiana legislature passed a health regulation which created a slaughterhouse monopoly. The statute was challenged as being contrary to the Fourteenth Amendment’s privileges and immunities clause. (Sources at 123) The court held that the amendment only guaranteed those federal rights protected as of the time of its enactment. In other terms, the privileges and immunities clause grants no new rights to citizens which is not already granted by the U.S. Constitution’s Article Four. (Sources at A-9) Justice Field in his dissent disagreed with the majority, believing “[t]he privileges and immunities designated are those which of right belong to citizens of all free governments,” and defied the majority’s premise that incorporation fundamentally altered the relationship between the Federal Government vi se vi the States, because the Supremacy Clause already creates its authority. (Supp. at 286)
There are several telling statements in the legislative history of the Fourteenth Amendment, which should have led the majority to endorse Field’s opinion. On February 28, 1866, one legislator argued “(w)hat is the object of the proposed amendment? It merely gives the power to Congress to enact those laws that will give to a citizen of the United States the natural rights that necessarily pertain to citizenship. It is intended to enable Congress by its enactments when necessary to give a citizen of the United States, in whatever State he may be, those privileges and immunities which are guaranteed to him under the Constitution of the United States.” (Supp. at 277) On May 8, 1866, a legislator said “the Constitution limits only action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” (Id. at 281) And on May 10, Congressman Bingham said “this amendment takes from no State and right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny any freeman the equal protections of the laws or to abridge the privileges or immunities of any citizen of the Republic.” (Supp. at 282) With sentiments like these and the plain language of the amendment, the Court in the Slaughterhouse cases should have decided the privileges and immunities clause shielded all U.S. citizens from state legislation contrary to Federal rights. My best estimation is that the Court was uncomfortable with what it considered a radical alteration to federalism, and in so doing proffered an intellectually dishonest opinion. The Court seemed to disregard the Legislature’s intent when interpreting the language of the amendment, and misrepresented the profound impact that the Civil War had on the America’s collective conception of the republic.
In the Slaughter-House Cases, the Supreme Court made the privileges and immunities clause of the Fourteenth Amendment obsolete. However, the Court later established some protections for state citizens, incorporating the ‘due process’ and ‘equal protections’ provisions. In Palko v. Connecticut, 1947, the defendant was convicted of second-degree murder and sentenced to life in prison. (Sources at 193) He was later convicted for first-degree murder, and challenged it as double jeopardy by the state of Connecticut. Palko argued all provisions in the Federal Bill of Rights should be incorporated to the states through the Fourteenth Amendment’s due process provision. The Supreme Court upheld his conviction, but established a standard, whereas rights within the Constitution applied to the states that are “the very essence of a scheme of ordered liberty,” and that “a fair and enlightened system of justice would be impossible without them.” (Id. at 194) While Double Jeopardy did not meet this standard, one that expressly did was “freedom of thought and speech… that is the matrix, the indispensible condition, of nearly every other form of freedom.” (Id.)
Shortly after the Palko decision, the Supreme Court expounded on the concept of selective incorporation in Adamson v. California. In this case, Adamson challenged the constitutionality of California’s trial rules, which allowed prosecutors to mention the defendant’s silence as implicit guilt. The petitioner argued this was a deprivation of his federally protected right against self-incrimination, as committed by a law California. (Sources at 195) Again, the petitioner believed the Fourteenth Amendment should incorporate all provisions of the Bill of Rights onto states. The majority rejected the defendant’s claim, as in Palko, believing selective incorporation should be governed by natural law, and the Bill of Rights should not be incorporated in toto. Justice Black delivered a pointed dissent arguing for total incorporation, writing “"I would follow what I believe was the original purpose of the Fourteenth Amendment to extend to all of the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions, of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution." (Sources at 197) He was arguing that ‘selective incorporation’ as a doctrine improperly anointed the Court an arbiter of rights. I agree with these sentiments, and believe the Supreme Court has vastly overcomplicated Fourteenth Amendment Jurisprudence with the concept of ‘selective incorporation.’
In summation, Justice Field was right in his assessment that the Privileges and Immunities Clause of the Fourteenth Amendment was meant to protect all citizens against state legislation that is repugnant to the Constitution. However, he was only right in part when saying the majority’s opinion in the Slaughter-House Cases made it “a vain and idle enactment.” While that case essentially nullified the Privileges and Immunities Clause, the Fourteenth Amendment later gained purpose in its incorporation of selected federal rights through the Equal Protections and Due Process Clauses. While the Supreme Court’s current application of the Fourteenth Amendment likely diverges from its legislative intent, the amendment nonetheless has practical value in nullifying state acts.
Below is Part II of an award-winning 2012 essay,
authored by Mark Baserman Jr.:
Copyright © Mark Baserman. All rights reserved. License for cover image purchased through Adobe Stock on 07/14/2016.