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More on Lessig on the Slaughterhouse Case
Earl Maltz

[Ed.: This is the third in a series of point-counterpoints by Professors Earl Maltz and Lawrence Lessig regarding Provessor Lessig's recent essay on the Slaughterhouse Case.  Previous posts are here (Maltz) and here (Lessig).]

First, I’d like to thank Professor Lessig for continuing the conversation and for calling my attention to a point that I should have addressed in my first post.

At its core, Lessig’s argument is based on his interpretation of Justice Miller’s observation in the Slaughterhouse Case that the “privileges or immunities of citizens of the United States are those which owe their existence to the Federal government, its national character, its Constitution, or its laws.” Lessig suggests that the reference to “its laws” might be read to indicate that the Privileges or Immunities Clause vested Congress with the power “to render a ‘privilege or immunity’ federal if, and maybe only if, it is addressing some denial of equality.”  He argues that a contrary interpretation of Miller’s opinion is not appropriate because such an interpretation would call into question the constitutionality of the Civil Rights Act of 1866, which had been reenacted in 1870 after the ratification of the Fourteenth Amendment itself.

One of the problems with this argument is that it ignores the context in which the reference to “its laws” was made.  There is no reason to believe that Miller was suggesting that, even when combined with section five, the Privileges or Immunities Clause should be interpreted in a manner that would allow Congress to override state laws dealing with a wide variety of rights so long as there was “some denial of equality.”  Instead, Miller was simply making the commonplace observation that, assuming that Congress had the authority to pass a particular statute, any rights granted by that statute would be derived from the federal government rather than the states and that, as such, were among the privileges or immunities that one enjoys by virtue of his or her national citizenship.

More importantly, while Miller was clearly well-aware of the need to interpret the Fourteenth Amendment in a manner that would unequivocally vindicate the constitutionality of the Civil Rights Act, he did not rely on the Privileges or Immunities Clause as the source of congressional authority to pass the statute.  Instead, Miller would have derived the relevant authority from the Equal Protection Clause.  Thus, after quoting the language of that clause, he asserted that “the existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden” and that “if, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation.”  However, Miller was also careful to limit the scope of his equal protection argument, observing that “we doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”

By relying on the strictures of the Equal Protection Clause as the justification for the Civil Rights Act while simultaneously emphasizing the limitations on the scope of that authority, Miller was able to vindicate congressional power to protect the former slaves from hostile state action while at the same time avoiding the dramatic change in the structure of federal-state relations that he condemned immediately after his discussion of the equal protection issue.  By contrast, the recognition of a general power in Congress to protect rights in any case where there is “some denial of equality” would have created the very kind of change in the federal system that Miller described in such derogatory terms.  In short, unless one is willing to dismiss Miller’s discussions of the importance of federalism as mere window dressing, Lessig’s characterization of the import of the reference to “its laws” in the majority opinion in Slaughterhouse is simply implausible.