5min chapter

We the People cover image

The Slaughterhouse Cases at 150

We the People

CHAPTER

The Importance of the Privileges or Immunities Clause

Professor Lash: Justice Miller's majority opinion eviscerated the privileges or immunities clause. He says it also refused to apply the Bill of Rights against the states. Professor Lash: The criticism against slaughterhouse has been false. It simply rejected an unenumerated right and he was right to do so.

00:00
Speaker 3
So we've put on the table the slaughterhouse majority and the dissent. Let's talk about its implications. Professor Lash, the dissent accused the majority of reading the privileges or immunities clause out of the 14th Amendment and reducing it to annality. And one of the results of the majority's opinion was to refuse to apply the Bill of Rights against the states and also to foreclose the opportunity to read into the privileges or immunities clause rights that weren't written down in the Constitution. Tell us about the effects of Justice Miller's majority opinion.
Speaker 1
Of course, and how you've just described the opinion is how it is commonly understood that one of the reasons why Justice Miller's opinion has been criticized for more than a century is because he rendered the privileges or immunities clause, I think Justice Field in his dissent said this. He rendered it a vain and idle enactment that it accomplished absolutely nothing. And it's additionally criticized as refusing to apply the Bill of Rights against the states. And despite the fact that there seems to be significant historical evidence that that's what the framers and the ratifiers were trying to do. So the common criticism of slaughterhouse and Miller's opinion is that he just eviscerated right there at its birth, the privileges or immunities clause. And you have a similar rendering of the case on one of the sites that's associated with the National Constitution Center. There's a blog post that describes Miller's opinion this way. Quote, through this narrow reading, Justice Miller effectively rendered the privileges or immunities clause impotent. Despite the fact that its drafter, Representative John Bingham of Ohio had explained on the house floor that the clause was meant to give Congress the power to enforce the Bill of Rights against the states. End quote. And again, I love the National Constitution Center, but I think that's quite wrong. And I think the criticism and description of Justice Miller's opinion and its effect on the Bill of Rights is simply incorrect. The issue as to whether or not the brand new privileges or immunities clause included the rights listed in the first 10 amendments and made them applicable against the states was not before the court. He couldn't have ruled on that. The issue before the court in the slaughterhouse case was whether or not among these new privileges or immunities was an unenumerated right to pursue a trade. And the butchers who were bringing the claim were reading older cases like corefield against Coriel, which interpreted Article 4's privileges and immunities clause. And in an earlier in that decision, corefield, Justice Bushrod Washington had ruled that among the many privileges and immunities that should be equally bestowed on visiting citizens would be the right to pursue a trade. So if a state was letting their citizens pursue a trade, they would have to allow visiting citizens from other states to right to pursue a trade. And so according to the butchers, if that was part of the privileges and immunities under Article 4 that was given equal protection, now that we have a new privileges or immunities clause in the 14th amendment, it should be viewed as transforming what was once just a right of equal protection into an absolute right to pursue a trade. And it's that particular claim that Justice Miller rejected. He distinguished the state secured rights of Article 4 from the new national privileges or immunities of citizens of the United States. And according to Justice Miller, your national privileges or immunities were those which were actually listed in the Constitution, either those which were given to you by federal law through the enumerated powers of the national government or those which were declared in the Constitution as particular rights, rights of habeas corpus or First Amendment rights to assemble and petition the government for redress of grievances. So according to Miller, there was no national unenumerated right to pursue a trade that emerged just through this language of privileges, immunities in the 14th amendment. It's that particular issue that he rejected and not the incorporation of the Bill of Rights. So I think the criticism against slaughterhouse has been false. He simply rejected an unenumerated right and he was right to do so. Excellent.

Get the Snipd
podcast app

Unlock the knowledge in podcasts with the podcast player of the future.
App store bannerPlay store banner

AI-powered
podcast player

Listen to all your favourite podcasts with AI-powered features

AI-powered
podcast player

Listen to all your favourite podcasts with AI-powered features

Discover
highlights

Listen to the best highlights from the podcasts you love and dive into the full episode

Discover
highlights

Listen to the best highlights from the podcasts you love and dive into the full episode

Save any
moment

Hear something you like? Tap your headphones to save it with AI-generated key takeaways

Save any
moment

Hear something you like? Tap your headphones to save it with AI-generated key takeaways

Share
& Export

Send highlights to Twitter, WhatsApp or export them to Notion, Readwise & more

Share
& Export

Send highlights to Twitter, WhatsApp or export them to Notion, Readwise & more

AI-powered
podcast player

Listen to all your favourite podcasts with AI-powered features

AI-powered
podcast player

Listen to all your favourite podcasts with AI-powered features

Discover
highlights

Listen to the best highlights from the podcasts you love and dive into the full episode

Discover
highlights

Listen to the best highlights from the podcasts you love and dive into the full episode