Barnett on original meaning and the Privileges or Immunities Clause
on Nov 5, 2015 at 2:43 pm
“Focus on the original meaning of the words, and let the narrative chips fall where they may,” argued Randy Barnett in a lecture last week sponsored by the Supreme Court Historical Society. Focusing on the Slaughterhouse Cases, he examined not so much the decision itself but how scholars have reacted to it and what their conflicting interpretations reveal about the proper approach to constitutional interpretation.
In the Slaughterhouse Cases of 1873, the Supreme Court upheld a Louisiana state statute granting a franchise to a single slaughterhouse in New Orleans and forbidding animal slaughter elsewhere in the city. The decision has been heavily criticized for ending Reconstruction by effectively removing the Privileges or Immunities clause from the Fourteenth Amendment, which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” An alien from outer space, Barnett suggested, would likely consider the clause fairly important. It has however remained noticeably absent from Supreme Court jurisprudence since its passage due to a narrow ruling by Justice Samuel Miller. (That absence was made even more apparent by the presence in the audience of Justice Clarence Thomas, who in McDonald v. Chicago became one of the few Justices in history to cite the clause.)
According to Barnett, three main narratives hold sway today among legal scholars seeking either to justify or condemn the decision. The first narrative justifies the act as a necessary public safety measure and as such argues that the decision upholding it should be read positively regardless of the damage to the Privileges or Immunities Clause. Reading aloud from diary entries of foreign visitors to New Orleans and health and sanitation statistics, Barnett chronicled the city’s health and sanitation woes during the nineteenth century, when its residents suffered multiple epidemics of cholera and yellow fever. Of particular relevance to the Slaughterhouse Cases, reports detail animal flesh and entrails rotting in the streets and a high concentration of slaughterhouses just a mile upstream of the main water pipes for the entire city. The statute benefited the city by constructing one central facility for slaughtering, downstream of major pipes and drainage, and allowing all butchers access to the facility. As Barnett summarized the argument, the statute was a “win for the franchise, a win for the butchers, and most importantly a win for the general public.”
A second narrative suggests that the statute arose primarily as a “private measure for the unjust enrichment of the few” and criticizes the Court’s decision for endorsing legislative corruption. Barnett outlined a history of public corruption and bribery in New Orleans and across the entire state of Louisiana (which, he noted, was generally true across the entire nation at this time). The state legislature regularly empowered local franchises and monopolies – such as a privilege granted (or rather purchased through bribes) to private investors to run a state monopoly. The single slaughterhouse franchise at issue in this case arose out of that same system, this narrative suggests, and ought to have been struck down.
A third narrative emphasizes the role of race in Louisiana politics. Launched into power by a new Louisiana state constitution granting former slaves the right to vote and disenfranchising former supporters of the Confederacy (for a time), a Republican legislature made up of both blacks and whites passed a flurry of legislation governing issues of race, including laws prohibiting segregation in public spaces. Supporters of this position suggest that opposition to the Slaughterhouse Act was part of a larger resistance to Republican rule, all stoked by racism. They point to the fact that John Campbell, the lawyer leading the case against the Slaughterhouse Act, had left the Supreme Court to become Secretary of War for the Confederacy; for him, challenging the act provided a legal means to return white Democrats to power in Louisiana and across the South. Justice Miller, a former Whig Republican, thus properly resisted Campbell’s attempt to use the Fourteenth Amendment against its Republican enactors and affirmed the wherewithal and ability of the new legislature.
Although he conceded that these narratives – public health, public corruption, and race – illuminate important aspects of the case, Barnett criticized reliance on them on two grounds. At a basic level, they do not so clearly illustrate the proper result as might be assumed. The very commonplace nature of public corruption in Louisiana politics suggests both that cronyism likely did occur with the Slaughterhouse Act and also that such cronyism might not mean much, especially when contrasted with the public health narrative. There may have been no alternative other than bribery to activate the police power of the state for the sake of public health.
More importantly, Barnett presented what he characterized as “new information” on the subject of race and the Slaughterhouse Cases. He noted that Campbell’s opponent in the case, Jeremiah Black, had opposed secession despite being a Democrat, but had also actively sought to destroy Reconstruction. In Ex parte Milligan, Black convinced the Court to find unconstitutional the Union Army’s use of military tribunals, rather than civilian courts, for citizens – a severe blow to Republican aims in Reconstruction. Black explicitly wanted to destroy the Privileges or Immunities Clause, the essence of the newly constructed and powerful Fourteenth Amendment. As history knows, that is exactly what happened, and even Campbell many years afterwards admitted that “it was probably better for the country that we lost that case.” According to Barnett, it is not simple to argue that a racial narrative opposed the Slaughterhouse decision; there were also anti-Reconstruction motives in favor of the opinion.
At this point, rather than try to clarify one narrative and argue on its behalf, Barnett made his larger claim that these competing narratives demonstrate that it is not helpful to evaluate Supreme Court decisions on the basis of narratives. Rather, only the original meaning of the text should be at issue. He cited two subsequent decisions to prove this point.
First, the day after the Slaughterhouse Cases, the Court issued its momentous decision in the case of Myra Bradwell, rejecting her efforts to gain access to the Illinois bar. Miller also wrote the opinion in this case, a much briefer decision in which he claimed that the same reasoning of the Slaughterhouse Cases made further elaboration unnecessary in this case: Bradwell had no recourse to the Privileges or Immunities Clause. Barnett emphasized that the dissenters in the Slaughterhouse Cases who concurred in Bradwell’s case did feel this pressure. To justify his decision, Justice Joseph Bradley wrote a notoriously patronizing decision about the proper roles of men and women. For Barnett, this is not inconsequential. The reasoning contained in those concurring opinions actually gave force afterwards to arguments that struck down many of these barriers to women. Because the Justices offered reasons for discrimination, it became possible to argue against those reasons.
In contrast, Barnett pointed to the Court’s 1896 decision in Plessy v. Ferguson, which famously upheld the use of “separate but equal” public facilities. The opinions in this case are noticeably absent of any sort of argument justifying why segregation may be permissible, instead according the states a blanket police power. For Barnett, this goes back to the effective nullification of the Privileges or Immunities Clause: because that clause meant nothing, jurists did not have to justify its abridgement.
Although a narrow view of the Slaughterhouse decision suggests that fighting racism means upholding the act, in Barnett’s view history shows us what happened as a result. Far greater damage to the progress of racial justice occurred with the Plessy decision than may have been possible had the Privileges or Immunities Clause meant something stronger than nothing.
Barnett closed by discussing his own recent trip to New Orleans, which allowed him to reflect on these cases in the place where they occurred. Only a few blocks separate the scene of Homer Plessy’s arrest in 1896 from the location of the slaughterhouse of 1873. Using the emotional attraction of the audience to a race-based narrative explaining this era in history, Barnett concluded his argument by pointedly urging promoters of various narrative-based approaches to understanding Supreme Court cases to “consider the legal narrative about what happens when you redact the Privileges or Immunities Clause from the Fourteenth Amendment as the Supreme Court did in the Slaughterhouse cases.” Barnett may perhaps possess too rosy a confidence in the potential power of this clause, but no one in the audience could have left his lecture without much to consider.