[Recent lecture on the Fourteenth Amendment is topical.]
The latest Landmark Cases episode was on with Paul Clement (patron saint of the wrong side in Supreme Court oral advocacy, but with over 70 cases, there are exceptions) and a biographer of Justice Miller as guests. This was an interesting one in part because I am somewhat less familiar with certain aspects though read certain discussions including Charles Black's denunciation of the majority opinion. One interesting aspect that provides the personal stories involved are the slaughterhouses themselves, like the home of the Scotts in a fort did last time. Miller and Campbell (the losing chief lawyer) too.
The usual account here is that the opinion eviscerated the Privileges or Immunities Clause of the Fourteenth Amendment, which was intended to be the prime source of fundamental rights with the Due Process Clause later used as an imperfect substitute. The somewhat revisionist approach and the author here makes it to some extent is that the opinion did honor the core intent of the Fourteenth Amendment, the protection of the rights of blacks and avoided a broad "natural rights" approach that would threaten a range of economic regulations. In fact, the Supreme Court to some extent used substantive due process to do so in time. The true failure of Reconstruction was both political, and to the extent aided by the Supreme Court, more an issue of other cases.
In hindsight, I think it's a mixed deal. The opinion went too far. The issue at hand was a reasonable regulation of a public nuisance. It did not require a broad ruling that held that something like the right to an occupation was not a "privilege or immunity" (shortly thereafter this led to a rejection of the right of a woman to be a lawyer with three of the dissenters here needing to rely on other grounds, resulting in an infamous sexist concurrence). The incorporation issue would arise eventually (soon enough really) but there was a way to not make the federal courts a wide censor of state police powers without going this far. Ironically, like Dred Scott, the majority favored one side of a greatly disputed matter unnecessarily. The previous case points to a "privilege or immunity" that remained, namely, the right to argue a case in federal court.
The dissents in hindsight appear to have more staying power given our broader understanding of the reach of the opinion with substantive due process itself covered as well. Should be noted though that on the specific matter the dissents were wrong; we are not talking a case like McDonald v. Chicago where a concurrence uses a different argument to get to the same place. The dissenters would have found a monopoly set up to regulate and cabin slaughterhouses for health reasons unconstitutional. And, in the long run, the chief dissenter (Justice Field) was not quite consistent in his respect for liberty and equality, finding various cases of racial discrimination okay.
Again, some have argued that the Supreme Court here provided a reasonable approach that left open some protections for blacks and there were some cases involving juries and voting where justices in the majority did provide some grounds for optimism. But, other cases left a lot more to be desired, including the Civil Rights Cases (itself leaving open a Commerce Clause argument, but one justice privately deemed forcing service to blacks akin to involuntary servitude). And, in time, the Supreme Court left open the principle that the amendment protects substantive liberties in a broad sense. In this very case, the opinion did not say only blacks were the concern, even a bare bones view of privileges and immunity applicable to all after all.
The dissents show that substantive due process was already in the air and applied by some in the era in question to protect fundamental rights. So, it is not non-originalist, to the extent that matters, to use that approach here. And, some conservatives have so shown. As noted in the gun case (for which Paul Clement argued the due process side) suggested, over a hundred years of water under the bridge makes privileges or immunities (except in limited ways such as interstate travel) not the most realistic approach these days. It does help show the reach including the "make or enforce" language used in the Fourteenth Amendment. As to the citizenship issue, equal protection and due process would protect differentiation of aliens except in various somewhat narrow cases where citizenship would matter.
A final thought. If the Supreme Court a mere five years after the fact split 5-4 over the meaning of the core of the Fourteenth Amendment, originalism just might have its issues.
The latest Landmark Cases episode was on with Paul Clement (patron saint of the wrong side in Supreme Court oral advocacy, but with over 70 cases, there are exceptions) and a biographer of Justice Miller as guests. This was an interesting one in part because I am somewhat less familiar with certain aspects though read certain discussions including Charles Black's denunciation of the majority opinion. One interesting aspect that provides the personal stories involved are the slaughterhouses themselves, like the home of the Scotts in a fort did last time. Miller and Campbell (the losing chief lawyer) too.
The usual account here is that the opinion eviscerated the Privileges or Immunities Clause of the Fourteenth Amendment, which was intended to be the prime source of fundamental rights with the Due Process Clause later used as an imperfect substitute. The somewhat revisionist approach and the author here makes it to some extent is that the opinion did honor the core intent of the Fourteenth Amendment, the protection of the rights of blacks and avoided a broad "natural rights" approach that would threaten a range of economic regulations. In fact, the Supreme Court to some extent used substantive due process to do so in time. The true failure of Reconstruction was both political, and to the extent aided by the Supreme Court, more an issue of other cases.
In hindsight, I think it's a mixed deal. The opinion went too far. The issue at hand was a reasonable regulation of a public nuisance. It did not require a broad ruling that held that something like the right to an occupation was not a "privilege or immunity" (shortly thereafter this led to a rejection of the right of a woman to be a lawyer with three of the dissenters here needing to rely on other grounds, resulting in an infamous sexist concurrence). The incorporation issue would arise eventually (soon enough really) but there was a way to not make the federal courts a wide censor of state police powers without going this far. Ironically, like Dred Scott, the majority favored one side of a greatly disputed matter unnecessarily. The previous case points to a "privilege or immunity" that remained, namely, the right to argue a case in federal court.
The dissents in hindsight appear to have more staying power given our broader understanding of the reach of the opinion with substantive due process itself covered as well. Should be noted though that on the specific matter the dissents were wrong; we are not talking a case like McDonald v. Chicago where a concurrence uses a different argument to get to the same place. The dissenters would have found a monopoly set up to regulate and cabin slaughterhouses for health reasons unconstitutional. And, in the long run, the chief dissenter (Justice Field) was not quite consistent in his respect for liberty and equality, finding various cases of racial discrimination okay.
Again, some have argued that the Supreme Court here provided a reasonable approach that left open some protections for blacks and there were some cases involving juries and voting where justices in the majority did provide some grounds for optimism. But, other cases left a lot more to be desired, including the Civil Rights Cases (itself leaving open a Commerce Clause argument, but one justice privately deemed forcing service to blacks akin to involuntary servitude). And, in time, the Supreme Court left open the principle that the amendment protects substantive liberties in a broad sense. In this very case, the opinion did not say only blacks were the concern, even a bare bones view of privileges and immunity applicable to all after all.
The dissents show that substantive due process was already in the air and applied by some in the era in question to protect fundamental rights. So, it is not non-originalist, to the extent that matters, to use that approach here. And, some conservatives have so shown. As noted in the gun case (for which Paul Clement argued the due process side) suggested, over a hundred years of water under the bridge makes privileges or immunities (except in limited ways such as interstate travel) not the most realistic approach these days. It does help show the reach including the "make or enforce" language used in the Fourteenth Amendment. As to the citizenship issue, equal protection and due process would protect differentiation of aliens except in various somewhat narrow cases where citizenship would matter.
A final thought. If the Supreme Court a mere five years after the fact split 5-4 over the meaning of the core of the Fourteenth Amendment, originalism just might have its issues.
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