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Problems With Vermeule, Part 5: The Fourteenth Amendment, Lochner, and Harlan
Chris Green

(For parts 1, 2, 3, and 4, see here and here and here and here.)

Vermeule discusses several particular constitutional issues in some detail. It is exasperating, however, how little attention he gives to our Constitution itself. I will focus on the area on which I have specialized—the Fourteenth Amendment—and leave his claims about the separation of powers to others. Why exactly do states face significant restrictions with respect to civil rights? Vermeule never says. He says at page 38, “The sweeping generalities and famous ambiguities of our Constitution afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, solidarity, and subsidiarity.” The exact language of the Fourteenth Amendment is apparently already sufficiently “famous” that Vermeule need give it no attention at all.

Despite extended discussion of Fourteenth Amendment cases like Lochner v. New York  (1905) and Euclid v. Ambler Realty (1926), Vermeule never finds the space even to set out the clauses that these cases are interpreting: “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.” We never get any explanation of exactly what he thinks is required by due process of law, or equal protection of the laws, or the privileges and immunities of American citizenship, because nowhere does he even paraphrase these key pieces of constitutional language.

Vermeule gives extended praise to Justice Harlan’s approach in Lochner. But it is simply impossible to understand Harlan’s approach to the Fourteenth Amendment without understanding Harlan’s commitment to equal American citizenship rooted in the Privileges or Immunities Clause. Vermeule states at page 68 that Harlan’s Lochner dissent “contains no reference to the framers or founders (or ratifiers), whether of 1789-91 or of 1868, nor is there any mention of the ‘original public meaning’ of the Constitution. Rather the basis for the dissent is legal principles reflected and explicated by caselaw over time.” That is just not true. Harlan specifically accuses the Lochner majority of “enlarging the scope of the Amendment far beyond its original purpose.”  Moreover, if we look at the actual chain of precedents in the years before 1905, it is plain as day that Harlan’s approaches to freedom-of-contract, equality, and Bill-of-Rights-incorporation doctrine were rooted squarely on the meaning expressed by the text of the Privileges or Immunities Clause in its original context.

Harlan was not on the Court the first time it considered the Louisiana slaughtering monopoly in 1873, when Justice Field’s dissent eloquently explained the Privileges or Immunities Clause as a general ban on “hostile and discriminating legislation” against any citizen of the United States, compellingly analogizing the Fourteenth Amendment to the Article IV comity clause’s ban on hostile and discriminating legislation against citizens of different states and relying heavily on the lengthy explanation of Article in Justice Bushrod Washington’s famous 1825 ode to natural rights in Corfield v. Coryell. But Harlan was on the Court in 1884 when it considered the Louisiana slaughtering monopoly a second time. Harlan took the opportunity to associate himself with the Slaughterhouse dissenters. The Court repelled the monopolists’ argument that Louisiana’s early termination of their 25-year agreement violated the Contracts Clause, but four of the justices—Bradley, Field, Harlan, and Woods—reiterated the same view that Field and Bradley had expressed in their dissents eleven years before: that the right to enter a profession like butchering was indeed a “privilege of citizens of the United States,” protected under the Fourteenth Amendment though subject to reasonable regulation.  

Justice Bradley’s 1884 explanation of the Privileges or Immunities Clause, joined by Harlan and Woods, was the chief precedential basis for the Court’s decision in 1897’s Allgeyer v. Louisiana, which in turn was the chief precedential basis for Lochner. Bradley, Harlan, and Woods noted, in language that Allgeyer later quoted, “the liberty of pursuit—the right to follow any of the ordinary callings of life—is one of the privileges of a citizen of the United States." In this way, the Slaughterhouse dissents form part of the basis for substantive due process doctrine today.

Harlan’s judicial opinions on equality—from his opinions for the Court in Neal v. Delaware in 1881 and in Bush v. Kentucky in 1883 to his famous solo dissents in the Civil Rights Cases in 1883 and in Plessy v. Ferguson in 1896—likewise harped over and over on the notion of equal American citizenship, rather than equal protection of the laws. Focus on the Privileges or Immunities Clause was also central to Harlan’s incorporation dissents in Maxwell v. Dow in 1900, Patterson v. Colorado in 1907, and Twining v. New Jersey in 1908. Like Justice Thomas today, Harlan was obviously obsessed with resting Fourteenth Amendment doctrines on the proper piece of its text. He cared about the text in a way that Vermeule does not.

While Harlan never got the opportunity to overrule Slaughterhouse explicitly, it is exquisitely clear to those looking at these opinions that Harlan’s vision of the Fourteenth Amendment was rooted in the meaning expressed by the text of the Privileges or Immunities Clause in its original context. His Civil Rights Cases dissent is quite straightforwardly originalist, complaining that “the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.” Note well that this familiar rule was not just a defeasible consideration; it was a requirement.

Finally on this score, Vermeule vastly overstates the difference in approach between Peckham’s majority opinion and Harlan’s dissent in Lochner. Peckham and Harlan agreed on the basic right to occupational liberty subject to regulation in the general good, differing only in that principle’s application to the particular hours-of-work regulation. As Harlan himself characterized Lochner in an opinion for the Court three years later, “there was no disagreement as to the general proposition that there is a liberty of contract which cannot be unreasonably interfered with by legislation.” Harlan agreed that there were many regulations that failed such a test, and the majority agreed that there were many—indeed, the bulk of the regulations in the very statute at issue in Lochner, listed at great length in a footnote!—that passed it. Vermeule recklessly and absurdly accuses the majority of bad faith (“a case of mala fides, of bad faith—an indisputable deviation from the settled framework of the caselaw,” p. 65; “a betrayal, in bad faith, of the common good framework,” p. 66) in a way that Harlan himself never did.