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A Response to Professor Maltz on the Slaughterhouse Case
Lawrence Lessig

[Ed.: For this guest post we welcome Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School, to respond to an earlier guest post on this blog.]

I’m honored that Professor Maltz would take time to critique my claims about the Slaughterhouse Case. His essay highlights a point I’ve not sufficiently described, but which does not negate my claim: That the case acknowledges Congress’s power to define federal “privileges or immunities.”

My claim was grounded in a Note by Professor Niko Bowie, written when he was a student at the Harvard Law School. That Note challenged the presumption that the substance of a constitutional provision is determined by Courts alone. As the Supreme Court would describe it — while enforcing it — “[t]he power to interpret the Constitution … remains in the Judiciary,” not Congress.

Bowie argued that this is not true about the “Privileges or Immunities Clause.” That the framers of that clause understood the substance of “privileges or immunities” to be determined — in part at least — both by judges and by legislatures. “The Privileges or Immunities Clause,” as Bowie writes, “was understood as empowering Congress, not just courts, to itemize particular rights as subject to federal protection.”

For purposes of this response, let’s assume Bowie is right. My claim is that if he is right, his understanding makes the Slaughterhouse Cases not just understandable, but affirmatively sensible. Because on this understanding, Justice Miller is simply noting that the unenumerated rights that the butchers were pressing — the rights to free labor — were neither expressed in the text of the Constitution nor in a law of Congress. And therefore, on his reading of the clause, that unenumerated right did not constitute a “privilege or immunity of citizens of the United States.”

This reading is strategically valuable because it removes the court from the enterprise Miller at least was most fearful of — becoming a “a perpetual censor upon all legislation of the States.” Miller was already anxious about the exploding docket inspired by the Civil War Amendments. This way of reading the Clause removed the Court from the highly contestable enterprise of identifying sufficiently important unenumerated rights that should be considered protected by the POIC.

Professor Maltz rejects this reading, relying upon the language in Miller’s opinion directed specifically at Congress. As Miller wrote,

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects.

I’ve highlighted four passages within this quote to make clear the point that I am not making (nor does Bowie). I am not arguing that any “privilege or immunity” protected before the 14th Amendment by the states can be nationalized by Congress. Or again, I’m not claiming that all “privileges or immunities” previously secured by the states were, by virtue of the 14th Amendment, now within the jurisdiction of the federal government. Those claims would be inconsistent with Miller’s words — “all of the civil rights,” “the entire domain,” “any of them,” “on all such subjects.” My claim is that the Court is recognizing that even if Congress has no power to protect “all of the civil rights,” it certainly has the power to protect some.

The textual basis for that claim is the passage that follows immediately after the passage relied upon by Maltz. I quote, and again highlight, it here:

But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

These two highlighted words open a crack in the door of the jurisdiction that I’m suggesting that Miller was acknowledging. For the text plainly says that Congress’s laws could constitute “such privileges and immunities.” Put differently, just as it would be a mistake, in light of the language Professor Maltz relies upon, to conclude that Congress has the power to regulate “all of the civil rights,” so too would it be a mistake, in light of this language, “its laws,” to conclude that Congress has the power to regulate no civil rights. Miller is rejecting congressional jurisdiction over all. And he is rejecting congressional jurisdiction over none.

So then what laws might occupy the space between all and none?

Well, for one, the most important civil rights act passed by Congress in the first 90 some years after the 14th Amendment was ratified — the Civil Rights Act of 1866. Yes, 1866 predates the 14th Amendment. But it was the question about the constitutionality of that statute, passed under the 13th Amendment, that led the Reconstruction Congress to consider adding the 14th Amendment. After that amendment was enacted, Congress re-enacted the Civil Rights Act.

That act secured to all citizens a non-discrimination right for a wide range of civil rights. Those civil rights included rights that were, before the amendment, protected by state law alone. In the face of their unequal application across the nation, Congress by its act was determining to nationalize those rights. Black citizens in Massachusetts had them; Black citizens in Mississippi did not; Congress decided to nationalize these civil rights, and to secure them equally to all. After the Civil Rights Act of 1870, these civil rights became “Privileges or Immunities of Citizens of the United States.”

As Bowie argues, none of this was obscure to the Congress that passed the 14th Amendment. As he writes,

Virtually all of the debate over section 1 of the Fourteenth Amendment proceeded under the assumption that the section did little other than constitutionalize the Civil Rights Act.

Congress recognized, moreover, that an amendment authorizing the Civil Rights Act under the “Privileges or Immunities Clause” would entail, as Bowie writes, that

it would be for Congress to define and determine by law in what the ‘privileges and immunities’ of citizens of the United States consist.” As Representative Charles E. Phelps observed, if “[t]he ‘privileges or immunities’ of citizens are such as Congress may by law ascertain and define,” then an “act of Congress to define the privileges and immunities of citizens could and doubtless would be made to include the privileges of voting, serving upon juries, and of holding office. Those privileges must, then, be incorporated into the constitution and laws of each of the States . . . .

However “[d]espite these worries,” as Bowie argues, “the amendment passed through Congress by a wide margin and was subsequently ratified in 1868.” Or again,

By 1868, when the Fourteenth Amendment was ratified, it seemed clear to observers that Congress suddenly had the power to define and secure the privileges and immunities of citizenship. What had once been thought of as purely local matters could now be protected by federal legislation.

Bowie recognizes — as do I, more expressly now than I did in the draft that Professor Maltz is commenting upon and so I am grateful to him for calling this out — that this does mean that the Congress has the power to nationalize “all the civil rights.” As Bowie writes, it is

probably correct that Congress never thought it had plenary power to interpret constitutional protections. In 1866, neither the supporters nor the opponents of the Civil Rights Act and Fourteenth Amendment suggested that Congress had the power to create new privileges that no state already protected. Rather, the debate was over whether Congress could take from the states their ability to discriminate along certain lines (such as race) in the provision of certain benefits (such as property ownership). In modern terms, Congress was eliminating any legitimate interest a state might have in discriminating with regard to property ownership, judicial rights, or other state-law functions.

So again, yes, Congress has no power to legislate over “all the civil rights.” But yes, Congress does have the power to legislate over some of “the civil rights” — as it plainly did in the most important civil rights statute it passed until the modern era.

No doubt, this understanding leave a line to be drawn. That line makes sense of Miller’s framing understanding of all three amendments — that they were intended to protect the former slaves. This might suggest a hybrid understanding of the scope of the federal privileges or immunities power: that Congress has the power to render a “privilege or immunity” federal if, and maybe only if, it is addressing some denial of equality. And while the race was the inequality at issue in the Reconstruction Era, as the scope of equality interests recognized by the Court grows, so too would this “Privileges or Immunities” jurisdiction grow. They could federalize to address race inequaity; we, for example, could federalize to address sex inequality.

From the perspective of fidelity to role, it would have been better for Miller to say more clearly how the line between all and none was to be drawn. That he didn’t is a weakness in the opinion. But my point, building on Bowie’s, is that we miss the strength in the opinion if we ignore its plain language — “its laws”—against the background of the legislative elephant that stood in the room — the Civil Rights Act of 1866, reenacted in 1870. No interpretation of the 14th Amendment that draws the 1870 law into doubt can be a fair interpretation of the 14th Amendment. Miller certainly didn’t believe he was drawing the 1870 act into doubt. Neither should we read his words to suggest any differently.