The 14th Amendment Protects Economic Liberties

The Fourteenth Amendment is one of the hardest provisions in the Constitution to get right. Sometimes there seem be as many theories of the provision as there are theorists. I admire their persistence. While I am not an expert in the all the intricacies of the Amendment myself, I do think it very probable that it protects economic liberty at least from discriminatory and arbitrary interference. Thus, its original meaning offers support for recent courts that have invalidated irrational licensing schemes.

For me, three reasons combine to present a persuasive case that the Fourteenth Amendment protects economic liberty. First, there seems little doubt that the Fourteenth Amendment was ratified in part to permit federal protection of economic rights.  Before ratification, there had been constitutional doubts about the Civil Rights of 1866 which was aimed at preventing discrimination against African Americans in their exercise of economic rights like the right to contract. That background  suggests that either the Privileges or Immunities Clause, or the Due Process Clause, neither of which by their terms are limited to racial discrimination, must cover economic rights. (For reasons elaborated by Chris Green and John Harrison, I tend to think that the historical meaning of equal protection did not provide a general basis for preventing discrimination in the decision about what laws to adopt).

Second, this interpretation of the Fourteenth Amendment also makes it comport with an important part of the ideology of Republican party—free labor. Thus, understanding the Fourteenth Amendment as protecting economic liberty also has the advantage of making it flow from the central tenets of the political party that was responsible for entrenching that clause in the Constitution. These first two reasons are particularly powerful in combination: the inclusion of economics liberties within the Amendment’s scope gives it an expected legal effect that would also have resonated with popular popular political commitments.

Third, an interpretation that the Amendment covered economic liberties was adopted in a judicial opinion shortly after its ratification. In the Slaughterhouse Cases, Justice Stephen Fields argues that Clause of the Amendment that forbids states from abridging Privileges or Immunities of their own citizens was meant to track the scope of the similarly worded clause Article IV that forbids states from discriminating against out-of-staters and in particular its inclusion of right to pursue an occupation. His is a powerful interpretation of public meaning originalism, because it embeds the understanding of the Privileges or Immunities Clause of 14th Amendment in the context of the original Constitution, showing how one clause builds on the other.

It is true that his interpretation was contained in the principal dissenting opinion in the case. But it was joined by three other justices. And the alternative interpretation put forward by the Justice Samuel Miller for the narrow majority was not as plausible. Its principal argument against the position that Privileges or Immunities Clause protected such liberties was to argue that it protected a different set of privilege and immunities, namely those that inhered in national as opposed to state citizenship. But the textual basis of the argument—that the phrase “of the United States” placed after “Privileges or Immunities” distinguished the 14th Amendment rights from the “Privileges and Immunities of the citizens in  the several states”—is hardly compelling. The words in the genitive case may have instead signified that these rights were enjoyed by all citizens of the United States rather than were a different set of rights.

And resolving any ambiguity in the phrase “Privileges or Immunities of the United States” in the manner of the majority created three problems. First, it opened up a chasm between the rights of the state citizenship and federal citizenship, when in the words of John Harrison the Fourteenth Amendment “stapled these citizenships together.” Second, Miller appeared to so narrow the meaning of the Privileges or Immunities clause as to make the import of the Clause almost trivial, focusing on such rights as the right to ply the navigable waters of the United States. Third, in emphasizing that the rights were those that inhered in national citizenship, the opinion raised the question of why the clause was necessary at all, because national privileges and immunities should have been protected against state abridgement by the Supremacy Clause.

To be sure, there are substantial arguments that clauses in the 14th Amendment other than the Privileges or Immunities Clause are more directly responsible for protecting economic rights and natural rights to liberty.  But nevertheless, it counts in favor of including economic rights within the 14th Amendment that this conclusion follows from the most closely reasoned contemporary  judicial explication of the public meaning of its text.   Happily, this case also offers a plausible standard of judicial review of these liberties. Even the two judges in Slaughterhouse, who believed that the Due Process Clause as well as  the Privileges or Immunities Clause protected economic liberties, concurred in the standard.  It is to that standard which I will turn in a subsequent post.

 

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Comments

  1. gabe says

    John:

    Funny, you should write on the 14th P&I clause. am currently reading Kurt Lash’s book on this Clause and he presents a somewhat persuasive counter argument. Using Senator Binghams many comments, as well as the legislative history, debates, etc on both the Civil Rights Act of 1866 and the 14th Amendment, plus early court cases, Corfield, Lemmon, etc, he presents a different narrative. The P&I of the 14th was expressly limited to, and intended solely to cover, the P&I of *national citizenship* not the Article IV P&I which was intended to provide protections for “sojourning” citizens on a state basis. It was viewed by Bingham and a substantial portion of other Republicans at the time that as a result of Barron v Baltimore, there was no enforcement mechanism possessed by either Congress or the Federal Judiciary to enforce the Bill of Rights (and incidentally only the first eight amendments) against State deprivations. The 14th was intended to remedy this “defect.”
    Additionally, contrary to the assertion that the majority of Republicans supported such a position, it must be pointed out that in order to gain support for his Amenment Bingham had to mollify the sincere and deeply held belief of both moderate and conservative Republicans (a majority BTW) Bingham had to rewrite the first draft in order to eliminate the possibility that Section 1 would do exactly as you claim it is supposed to do. There were very real Federalism concerns involved here. (I’ll not get into the quotes / comments). Indeed, even some radical Republicans took Bingham to task for his first draft precisely because it went against settled law (Barron, etc and wrongly interpreted Corfield) and violated the Federalist structure of the government. Bingham repeatedly claimed that the P*I would do nothing more than cover the Bill of Rights (I.m simplifying here.) In fact, Senators from both NY and Michigan argued that his first draft would enable to Federal government to engage in precisely the sort of *interference* in the day to day economic / business laws of the States. They opposed this expansion of Federal power.
    With respect to current day and silly onerous licensing restrictions, I agree that they should be eliminated. However, it is not through the P*I of the 14th Amendment. One might make a better case using the P*I of Article IV – but not being a lawyer, I’ll leave it to you and the other legal beagles here to come up with the proper clause.

    Anyway, to all readers of this site: Get Professor Lash’s book – it is actually a FUN read and chock full of good legal history!!!

  2. Andrew says

    The Civil Rights Act of 1866 required that non-white people be treated equally to white people with regard to a vast range of activities. It would be a huge and unjustified leap to suppose that the 14th Amendment should therefore be understood as bestowing plenary authority on the federal courts and/or Congress to regulate that vast range of activities beyond ensuring equality. Certainly the 14th Amendment does not do such a thing CLEARLY, which is the necessary predicate for the exercise of judicial review.

  3. gabe says

    BTW:

    Bingham first proposed the 14th and it received initial consideration / deliberation PRIOR to the introduction / deliberation of the 1866 CRA.
    Perhaps, it would be better to say that the passage of the 14th had the *happy* consequence of constitutionalizing the CRA of 1866. Additionally, Bingham himself made no such claim as to “constitutionalizing the CRA – indeed, he offered a contrary opinion on that insisting that they were separate and INTENDED to cover different aspects of liberty / equality.

  4. gabe says

    “And resolving any ambiguity in the phrase “Privileges or Immunities of the United States” in the manner of the majority created three problems. First, it opened up a chasm between the rights of the state citizenship and federal citizenship, when in the words of John Harrison the Fourteenth Amendment “stapled these citizenships together.” Second, Miller appeared to so narrow the meaning of the Privileges or Immunities clause as to make the import of the Clause almost trivial, focusing on such rights as the right to ply the navigable waters of the United States. Third, in emphasizing that the rights were those that inhered in national citizenship, the opinion raised the question of why the clause was necessary at all, because national privileges and immunities should have been protected against state abridgement by the Supremacy Clause.”

    1) Bingham argued that the 14th P&I clause added no new “substantive rights” and rather than” open(ing) a chasm” as you suppose, it merely maintained the original Federal structure whereby states were free to manage their own affairs as the States saw fit and to AFFORD to their respective citizens those rights, privileges and immunities that were proper to each states unique circumstances.
    2)To assert that Miller simply reduced the Art IV P&I to a mere right to ply navigable waters is to assume that Justice Miller was completely unaware of the specific listing of Art IV (State level) P&I’s as speeled out by Justice Washington in Corfield. This was a hotly debated topic during debate on the 14th and was well known top both jurists and legislators. Justice Washington’s list was quite expansive. (I am sure you can find the cite).
    3) As to why the P&I of the 14th was necessary there is (was) extensive debate. In a nutshell, Justice Marshall in Barron v Baltimore had ruled that the Federal Bill of Rights was not enforceable either by Congress or the Federal Judiciary against the States. Bingham characterized this lack of enforcement power as the great “defect” in the constitutional scheme and, in fact, tailored his second draft of the Amendment to specifically address this defect. Like you, he also had earlier asserted “Supremacy Clause” *jurisdictional* power , along with his peculiar “ellipsis” theory of Art IV P&I – only to be roundly defeated by his Senatorial cohorts. Bingham finally recognized his error. – and thus the 2nd draft of Section 1.

    4) How is it that you choose the MINORITY opinion in the Slaughterhouse cases to justify this interpretation and claim that this minority opinion should be deemed as final?

    I suppose what I find most distressing is the apparent need to read into constitutional clauses that which we feel is necessary in order to achieve that which we believe to be the proper normative outcome. Consider also, if you will, the fine paper that Professor Greve recommends to us in:

    http://www.libertylawsite.org/2016/01/14/unorthodox-law/

    These authors take a realistic view of law as it is. Yet, no where does one see any concern for what it is constitutionally supposed to be; nowhere is there a concern for adherence to those constraints imposed upon the Federal (and State) Government by our constituent law.
    In both cases, we (Legislative, Executive, Judicial) have chosen to ignore those proper constraints in order that we may achieve the proper normative (or consequential) outcome. In the one cas of the Fed Admin State, efficiency drives us to accept / create Rules of interpretation by the Black Robes such that we are able to continue to govern via the new mechanism of “State sanctioned experts” as opposed to the duly elected representatives of the people. Ot in order to achive the loosening of stupid and onerous restrictions upon licensing, we are prepared to distort the meaning (and clear intentions of the drafters) of the 14th Amendment. Is this what is meant by a good constitution producing good results.
    When I contrast the modern attitude (Nancy Pelosi: “The CONSTITUTION??? – Are you kidding me) or the Black Robes with their Chevron deference with the almost palpable concern and respect that the members of the Thirty-Ninth (and other) Congress displayed / held for the constitution, I am highly dismayed at our prospects for our future governance and liberty.
    An obvious questions is: What has become of us and our constituent law?
    A less obvious but perhaps more important question may be: What IS to become of us should we continue upon this path?

    don’t know – but we have already proceeded far beyond simple sausage making!!!!

  5. truthteller says

    The 14th amendment was never ratified. You really should stop spreading lies. As educated as you are, I find it very disappointing. I am willing to give you the benefit of the doubt, you did not know the truth. Even as early as 1967 this illegal amendment was before congress for nullification. Someone did not want to let this go. Unfortunatly this has been abused by evil occupiers in government for their own benefit. Oregon never legally ratified it and then those senators in Tennesee who were kidnapped and marked present at the vote, Tennesee is illegal too, new Jersey and Ohio rescended before the vote, but the feds said no, we like your first answer. Please be part of the solution, not the problem. It is because of articles like this that our kids are losing the truth. You will have to answer to this one day and you will puke your guts out knowing you took part in losing America.

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