The Great Antidote – Randy Barnett

On this episode of The Great Antidote podcast with Juliette Sellgren, she is joined by guest Randy Barnett. In their discussion, Juliette and Randy discuss (what else?) The Constitution of the United States, the 14th Amendment, the controversial ‘Privileges and Immunities” clause, and what constitutional law might look like in the future.

 

Guest Bio

Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. After graduating from Northwestern University and Harvard Law School, he tried many felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago. A recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, Professor Barnett has been a visiting professor at Penn, Northwestern and Harvard Law School.

Professor Barnett’s publications includes eleven books, more than one hundred articles and reviews, as well as numerous op-eds. His most recent book is An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (2019) (with Josh Blackman). His other books on the Constitution are Restoring the Lost Constitution: The Presumption of Liberty (2nd ed. 2013), The Structure of Liberty: Justice and the Rule of Law (2nd ed. 2014), Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016), and Constitutional Law: Cases in Context (3rd ed. 2018) (with Josh Blackman). His books on Contracts are The Oxford Introductions to U.S. Law: Contracts (2010), Contracts: Cases and Doctrine (6th ed. 2016) (with Nate Oman).

In 2004, he argued the medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court. In 2012, he was one of the lawyers representing the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act in NFIB v. Sebelius. He’s appeared in numerous documentaries, including PBS’s Constitution USA with Peter Sagal and A More or Less Perfect Union with Judge Douglas Ginsburg; and he portrayed a prosecutor in the 2010 science-fiction feature film, InAlienable: The Movie. He blogs on the Volokh Conspiracy.

 

Episode Transcript

Juliette Sellgren: Hi. Welcome back. Today, I’m delighted to welcome Randy Barnett. He’s a professor of constitutional law at Georgetown University where he teaches constitutional law and contract and is the director of The Georgetown Center for the Constitution. This is Randy’s second time on this podcast and I’m excited to have him back. I really am excited today to be talking about the 14th Amendment of the Constitution. This amendment is such a big deal in matters seeking to end discrimination against individuals based on race, religion, gender, sexual orientation, and other statuses. And I think it’s probably one of my favorite amendments. So many people know little to nothing about it, and Randy’s coming out with a book in November about it. And so I’m excited to welcome you, so welcome to the podcast.

Randy Barnett: Well, thanks for having me back.

Juliette: By the way, to prepare for this interview, I have been listening to your lectures on these issues, but I also have been using your book, Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. And everyone, you should know them. Go read that book. But before we jump into the 14th Amendment, what is the most important thing that people my age or in my generation should know that we don’t?

Randy: About the Constitution or about the 14th Amendment?

Juliette: Just in general. Anything.

Randy: Anything, anything. Well, maybe that the Constitution is the law that governs those who govern us. The Constitution is not the law that governs us. The Constitution is the law that governs those who govern us. And those who govern us should know more and be able to change the law that governs them, then we can change the laws that they make to govern us without going through, in our case, the legislative process and in their case, through the amendment process. So essentially, what that means is that the meaning of the Constitution should remain the same until it’s properly changed by amendment.

Juliette: And that seems to be a lot of the issue that we see with the 14th Amendment, with a lot of things, is that, in the courts, especially like the Supreme Court, is trying to figure out whether enumerated rights or unenumerated rights are the ones that are protected by X Amendment, 14th Amendment, or like anything. And we’ll get into that. But that is super important to know, and I’ve been learning that slowly but surely and I think it’s a very good point. Okay. So let’s set the stage. We have to talk about, essentially, citizenship in America before 1868, which is the year that the 14th Amendment was ratified. So that means talking about Dred Scott in 1857, the 13th Amendment, and the Civil Rights Act of 1866. So can you explain how these three things and just conditions in general lead to the need for the 14th Amendment?

Randy: Sure. Well, the Dred Scott case, which was a decision of the Supreme Court, a majority of the Supreme Court in a 7 to 2 decision, ruled a number of things. But one of the things it ruled was that even free African-Americans, who had descended from slavery, but who are now free, were not citizens of the United States and could never be citizens of the United States. And one of the arguments that were used by Chief Justice Taney in his infamous opinion, in that case, to justify that conclusion, was that if they were citizens of the United States, then they would be entitled to all the privileges and immunities that citizens of the United States enjoy, among which are the right to go wherever they wish, whenever they wish, to speak on public matters, or to keep and carry arms wherever they want to go. These were all that Chief Justice Taney said, privileges of American citizenship, national citizenship.

And then, he argued that there’s no way that at the founding, the founders, especially the southern states, would have agreed to a constitution in which free blacks had those rights. And that’s one of the reasons why on semi-originalist grounds, he argued that the Constitution should not be interpreted as giving free African-Americans those rights. And he also argued that the Declaration of Independence, he said, though, if written today, would apply to everyone, didn’t apply to everyone at the founding because it didn’t apply to free blacks for this reason because to say that they were equal would have meant they had rights that southern states would never have agreed to when they were joining the union.

So it was a very infamous opinion, but it actually gave rise to, essentially, two different– it didn’t give rise to it, but it contributed to two different developments that had already been developing before this in the debate between anti-slavery constitutionalist and pro-slavery forces. And that is, one, that there is such a thing as national citizenship as distinguished from citizenship in your state. It’s not clear that that was a concept that pre-existed Dred Scott, that there’s such a thing as national citizenship, pre-existed Dred Scott in the Supreme Court at any rate, that there are these two separate types of citizenship. And number two, that national citizenship carries with it fundamental privileges and immunities, what we would today call fundamental rights, as opposed to merely a right against being discriminated against when you travel through another state which was the prevailing meaning of the privileges and immunities clause in Article 4.

So by creating this bifurcation between national citizenship and state citizenship, and arguing that national citizenship has these fundamental rights, it set matters up for what happened later when the Republicans were then in control of Congress after the start of the civil war and after its conclusion of the Civil War. And they were getting about the business of protecting the freedmen both by enacting statutes, Civil Rights Acts, like the Civil Rights Act of 1866, and constitutional amendments, like the 13th, 14th, and 15th Amendments.

Juliette: Really fast, what is the privileges and immunities clause again? What does it say?

Randy: Well, there is two privileges and immunities clause. There’s one that says privileges and immunities, and that’s in Article 4, and then there is one that says privileges or immunities, which is in the 14th Amendment. And so they’re not identical. The privileges and immunities clause in Article 4 in the original Constitution says that the citizens of each state shall be entitled to all privileges and immunities of citizens in several states. Let me say that again. The citizens of each state shall be entitled to all privileges and immunities of citizens in several states. You’ll notice that that clause doesn’t say anything about national citizenship or state citizenship itself. It doesn’t say there’s a separate category called national citizens, just citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Now, that provision was held from the founding up until through the Civil War, in fact, even to today, that provision has held as what’s called a comity clause, not a comedy in ha-ha, but comity, C-O-M-I-T-Y, clause, which basically said that each state gave comity or equal treatment to citizens from other states. So that if you’re traveling, if you’re a citizen of Virginia and you’re traveling through Maryland, Maryland cannot discriminate against you on behalf of its own citizens with respect to, let’s say, your fundamental right. So it’s anti-discrimination against the out-of-staters provision. That is probably what the original meaning of the clause was. It is certainly what the prevailing view of the courts was.

But leading up to the Civil War, leading up to Dred Scott – both anti-slavery advocates and pro-slavery advocates started reading the clause as though it was a protection of fundamental rights clause. That it basically said that the fundamental rights of citizens, in parentheses, of the United States shall not be denied by various states. And so this was probably in conflict with the original meaning, but anti-slavery people started to argue that. And then pro-slavery people also started to argue that. And in fact, they argued that because they had a fundamental right or their right to their property, which was, in this case, their claim of property over enslaved people. Because they had that right, then they should not be deprived of their fundamental rights when they’re traveling in another state regardless of whether that’s a free state or not a free state, which is, by the way, something else that Dred Scott talked about.

The other part of the Dred Scott ruling was to hold that the fundamental right of property that’s protected by the due process of law is denied if a slave-holder goes into free territory and is deprived of his property and his slaves. That’s a deprivation of the due process of law according to Chief Justice Taney. So, in a sense, both sides started arguing that the privileges and immunities clause was not merely a non-discrimination clause against out-of-staters. It was what you would call a fundamental rights clause that said states shouldn’t violate the fundamental rights of US citizens.

Now, that brings us to the 14th Amendment. After the Civil War, the 13th Amendment gets enacted to abolish slavery. Congress then gets empowered by Section 2 of the 13th Amendment to put into effect or to enforce the provision of the 13th Amendment. And as part of its enforcement power, it passes the Civil Rights Act of 1866, which protects certain fundamental rights.

First of all, it says that all persons born in the United States are citizens of the United States. It says that in the statute, which is contrary to Dred Scott. So you see a statute is now trying to reverse Dred Scott. You can see that might be a problem, the Supreme Court. And then it says that there are these certain fundamental rights, which it lists, including the right to make and enforce contracts, and the right to sue and be sued, and the right to the protection of the laws, that there are these fundamental rights that no citizen of the United States can be deprived. That statute gets vetoed by President Andrew Johnson, who succeeded Abraham Lincoln after Lincoln’s assassination. And he vetoes it on the grounds that it is beyond the scope of Congress’ enforcement powers of the 13th Amendment. He says slavery has been abolished, it’s not coming back, Congress can’t basically police against this kind of discrimination, that’s not slavery therefore, Congress is not empowered to do that.

Now, Johnson’s veto gets overridden by supermajorities of Republicans in Congress because the Democrats have not yet come back to Congress. And when they come back to Congress, they say they’re going to repeal the Civil Rights Act of 1866. That’s one of the things that they wanted to do. But Congress overrides the president’s veto, but there are some Republicans who are concerned about whether, in fact, they do have the power to pass this Civil Rights Act under their 13th Amendment enforcement power. And the person that is most concerned about this is a man named John Bingham. And it is John Bingham from Ohio, Congressman from Ohio, who writes what becomes most of Section 1 of the 14th Amendment that we know today. And he’s the one that pushes forward, he proposes it. And they pushed for the 14th Amendment for two reasons.

The first is to give Congress the explicit power to pass civil rights laws, like the Civil Rights Act of 1866. And that would respond to Johnson’s argument that they didn’t have the power. But the second thing was to enshrine the rights in that act, as well as other rights, into the text of the Constitution itself so that future congresses couldn’t repeal that law the way Democrats had vowed to do once they came back to Washington and once they came back to Congress. And that’s why there’s a privileges or immunities clause in the 14th Amendment. And that clause says that no state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. You’ll notice that that formulation is what anti-slavery proponents said the privileges and immunities clause of Article 4 was, even though they were probably wrong about that. They were probably wrong about Article 4. They then put into the Constitution what they thought the privilege and immunities clause should be, privilege and immunities protection should be. And that’s how we got that protection in the 14th Amendment.

Juliette: Is there a difference between the privileges and immunities versus privileges or immunities? Does it both mean the same thing?

Randy: They both mean the same thing. The only reason one says “and” and one says “or” is because one isn’t a positive affirmation, and the other one is a negative denial. And so the first one is positively affirming you have privileges and immunities. And the second one is saying you may not be deprived of your privileges or immunities. So there’s no difference in substance. The grammatical difference, the wording difference, just reflects that one was a positive affirmation and the other one was a negative prohibition. And so the language got changed accordingly.

Juliette: All right. I’ve been wondering about that for the longest time, so thank you.

Randy: Well, I’m here to clear up these wonderings that you may have.

Juliette: Thank you. So what other parts of the Constitution do the 14th Amendment echo? Because the two – privileges or immunities, privileges and immunities – are related, what other parts of the Constitution can be seen as reflected in the 14th Amendment?

Randy: Well, the parts of the Constitution that restrict state power in Article 1 talks about no state shall do this. And the 1st Amendment says Congress shall not make any law. And so there was a famous case called Barron vs. Baltimore decided by John Marshall in which it was argued that the 5th Amendment prohibition on takings without just compensation applied to the states, basically, applied to the city of Baltimore is what the Barron vs. Baltimore was about. And John Marshall denied that. And he said that any of the rights in the first eight amendments did not apply to the states. And had they applied to the states, Congress would have used the same language they used to restrict the states’ rights in Article 1, which basically talked about no state shall do this and no state shall do that.

So John Bingham was well aware of that opinion. In fact, he had to tell his colleagues about the opinion of Barron vs. Baltimore because they didn’t know about it, not all of them knew about it themselves. When Bingham went to draft the amendment, he consciously mirrored, he copied the language of Article 1 Section 10.

Here’s Article 1 Section 10, how it begins, “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money….. next paragraph – No State shall, without the Consent of the Congress, lay any Imposts or Duties, so you notice this “No State shall” language? The third paragraph, “No State shall, without the Consent of Congress, lay any Duty of Tonnage,” et cetera, et cetera, et cetera. So Bingham took the “No State shall” language from Article 1 Section 10 that John Marshall said, the framers of the first eight amendments would have used if they had meant to limit state power and he consciously took that language to say, “We do mean to limit state power, we’re going to use the language that John Marshall said we should use, the language from Article 1 Section 10.”

Juliette: That’s fascinating. I had no idea. That’s also good. I would say protections against state governments is important as well. So can we talk about The Slaughterhouse Cases? This is kind of, in my eyes, the beginning of this period of time where the Supreme Court kind of guts the 14th Amendment. So what happened in that case and what did it do to the 14th Amendment?

Randy: Right. Before I say that, let me just second what you just said about restricting state governments. In the original constitutional scheme, there were very few restrictions on state governments. I just read you the beginning of three paragraphs that had a bunch of restrictions, but they were very few. None of them generally protected the liberties or the fundamental rights of their citizens from their own state governments. Most of those limitations where you might call federalism protections, they’re basically saying, “State governments should not be doing what the federal government is doing,” hands-off certain things that the federal government should be doing. That’s what most of those are.

That turned out to have been sort of a fundamental defect in the original Constitution. There were constraints on the federal government but they were virtually no constraints on the states. The reason for that was, at the time of the founding, the states were thought of very fondly and the states were thought of as the best means of protecting the rights of the people and the federal government was greatly feared as being a potential tyranny, a potential despotism that really needed to be guarded against, and the states are going to be the guardian of liberty against overweening federal power. Well, the other thing that the Federal Constitution allowed – the Federal Constitution allowed so much power to States, the states could authorize some of their citizens to own other persons in their jurisdiction. That’s how much power the states had. They could sanction the owning of one individual by another individual, of one human being by another human being. That’s a heck of a lot of power. And that was part of the original defect of the Constitution to give states that much power.

And it was done for a variety of reasons. Building up to the Civil War, that power came to be contested by anti-slavery constitutionalists and other anti-slavery activists culminating in the Civil War where States turned out to be the engines of oppression as opposed to the champions of liberty. And so our constitutional order was then fundamentally changed with the 13th, 14th, and 15th Amendments, but especially with the 14th Amendment to provide now for the first time, robust protections, robust federal constitutional protections of people’s fundamental rights against their own state governments. But then, what happened in The Slaughterhouse Cases and other cases, like, the United States versus Cruikshank and eventually Plessy versus Ferguson, what happened in these cases was a repudiation by the court using living constitutionalist forms of argumentation and with a touch of framer’s formulations to gut this change. In part, I think, because many of the judges didn’t like it. They didn’t like this fundamental change to our federalism. They like the federalism they had before. And thought like the Civil War has been fought, slavery has been abolished, we can go back to the federals that we had before and cooler minds will prevail and they didn’t care for this fundamental, structural change in the Constitution.

As a result, The Supreme Court again using living constitutionalist reasoning, basically, just eliminated this provision from the Constitution and it didn’t start coming back for quite sometime after that. Should we talk about The Slaughterhouse Cases in particular now?

Juliette: Yes. Yes.

Randy: All right. Well, this is the case that was decided by The Supreme Court in 1873, five years after the 14th amendment was enacted. It did not involve African-Americans, at least not directly. It involved white butchers in Louisiana who were challenging a law that required them to do business, to do their butchering, their slaughtering in a centralized slaughterhouse that would be franchised or chartered by the State of Louisiana and given a monopoly over all slaughtering within the general jurisdiction of New Orleans, within New Orleans Parish. They protested and argued that being forced to do business with this monopoly and to perform their slaughtering under these monopoly conditions violated the privileges or immunities of citizens of the United States. And that brings in the privileges or immunities clause, which says, “No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” They said among those privileges or immunities is the fundamental right to pursue a living, to pursue an honest living, or pursue a trade. This was, I think one, of the privileges of citizenship, but you notice it’s not mentioned in the text of the Constitution so it’s not an enumerated right. It was not a right in the first eight amendments or what we call the Bill of Rights. But they asserted this right was fundamental.

And what a majority of the Supreme Court said, in a 5 to 4 decision, they said that “The right to pursue a lawful occupation was not among the privileges or immunities of national citizenship.” They essentially flipped Dred Scott, their reasoning flipped Dred Scott because you remember under Dred, Scott, what Chief Justice Taney said, “Hey, look, all these important fundamental rights belong to national citizens and that’s why African-Americans could never have been considered, even free African-Americans could never have been considered citizens of the United States where they’d get all these fundamental rights.”

In Slaughterhouse, now, the Supreme Court turns it around and says, “No, this fundamental right to pursue a lawful occupation and all these other fundamental rights, these are rights that are protected by States.” So, in other words, you get those protections of citizens of your States, and the national rights or privileges that the 14th amendment protects are a whole list of rights that really are not rights that we care very much about or even which cared very much about then. I don’t have the whole list memorized but my favorite right that Chief Justice Miller said was a privileged immunity was the right to protection of your life, liberty, or property while traveling on the high seas, as though we fought the Civil War over the deprivation of African-American rights when they were on in ships off the coast where you went beyond the territories of the United States, this is ridiculous. And most of all the other rights that he mentioned were trivial rights in that respect.

Juliette: When I first heard that, I laughed so hard because I was like, “When is that going to apply?” Especially now.

Randy: Well, not only doesn’t it apply? But because of the ruling in The Slaughterhouse Cases, there’s only been one time that a majority of the Supreme Court from 1873 until today, there’s only been one time that the majority Supreme Court has even invoke the privileges and immunities clause, and that is in support of a right to travel from one state to another. They did this in a case called Sáenz v. Roe. That’s the only time the privilege and immunities clause has been used. So if you came down to earth from another planet and you read in that planet’s laws that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, you think that was pretty darn important and I think you would be shocked to find out that from 1873 until today, a hundred and fifty years, basically, that right has never been protected. The only time that right played an important role was in a case called the City of Chicago versus McDonald which protected an individual right to keep and bear arms against States. Four justices, conservative justices, used the due process clause to do that and one justice, the swing justice, Justice Thomas. He relied solely on the privileges or immunities clause as he should have. And that’s the most prominent appearance that right has played, that piece of text has played in our constitutional law. It’s a shock. It’s a scandal.

Juliette: Tell me if I’m wrong, but also, if it’s second amendment protection then because it’s an enumerated right there still hasn’t been any protection of unenumerated rights under the privileges or immunities clause.

Randy: Well, nothing has been protected. The right to travel is an unenumerated right that was protected that one time partly relying on the privileges or immunities clause. So, I would say that. But by and large, if you want to be accurate, I gave you the one big-time it made an appearance in a concurring opinion, that was the fifth vote. But other than that, it’s just gone. It’s redacted. As we say, as we lawyers say. It is though it’s not there. It is an un-text, it’s an un-right.

Juliette: The thing that surprised me the most was that the monopoly power that the government granted to one privately owned slaughterhouse was basically the product of, I guess, cronyism, corruption, whatever you want to call it. But the judges didn’t even care to address the question of whether the monopoly power was a justified thing which made the ruling even more damaging, I’m correct, right?

Randy: Right. I should actually have sent you my article on The Slaughterhouse Cases because I wrote a piece about the history behind The Slaughterhouse Cases, which is very complicated and very interesting. It’s more interesting than I thought. I gave a lecture on this to the Supreme Court Historical Society at the Supreme Court a couple of years ago. And yeah, it was a product of corruption, the evidence was produced later on in court, in a proceeding, over a stock that had been issued in the company. That stock had been given to the governor of the state and the legislators to pass the law. In return for passing the monopoly, they would get stocks in the monopoly and be able to personally profit from it. That was one of three, at least three sorted things that this case raised. The other thing that was sorted about it was the fact that the legislature that enacted this law was a reconstructed legislature that had a very strong representation of African-Americans and the lawyers that represented the butcher was somebody who used to be on the Supreme Court and he resigned from the Supreme Court to fight for the Confederacy and he was using this case to gut the 14th Amendment because he didn’t like reconstruction and he didn’t like these reconstruction legislators.

So in this tale, in this narrative, the legislature is kind of the heroes here and the challengers are kind of the bad guys who are being motivated by bad ideas and bad intent. So The Slaughterhouse Cases, the actual cases themselves are really interesting. The final thing to keep in mind, and this is the final narrative of the case, there was an unbelievably terrible public health situation in New Orleans that this law was aimed at addressing and that is that carcasses and remains and the after-effects of slaughtering were all over New Orleans and dumped in the worst places and definitely polluting this drinking water in New Orleans. And most of this bill besides the monopoly were regulations regulating the time and place of when you could slaughter animals to try to address the egregious health conditions that were existing in New Orleans. Those conditions had been cleaned up by the Union Army when they occupied New Orleans but once the occupation ended, they reverted to the old form and this was actually a public health measure, probably a real public health measure, that was meant to address terrible, atrocious, awful, noxious conditions in New Orleans caused by the slaughtering business.

One more thing about that – the irony here is that given the corruption of most state governments at that time, not just Louisiana, which of course, was and remains in many respects a corrupt government but given the widespread corruption of state legislatures, it may have been the case that to get a genuine public interest law passed, you had to pay off the legislators to do it. So the corruption story might actually go hand in glove with the public health story.

Juliette: That’s fascinating, first. But almost immediately after The Slaughterhouse Cases comes Bradwell v. Illinois and that did a lot too, right? Can you talk about that a bit?

Randy: Yeah. Bradwell is a case that was announced the day after they announced Slaughterhouse. It was decided sometime earlier in private when they make their decisions but it was announced the day after The Slaughterhouse Case was announced. Bradwell, which is not as well known, it’s well known to law professors, but it’s not that well-known to the public. Bradwell concerned about the right of a woman to practice law in the State of Illinois. Myra Bradwell was a very accomplished editor of a legal newspaper in Illinois, married to a lawyer, was denied the right to practice law by the Supreme Court of Illinois by a regulation of the Supreme Court of Illinois. She challenged that under the 14th Amendment, under the privileges or immunities clause, on the grounds that this was an undue, unreasonable restriction on her fundamental right to pursue a trade, which is the same right the white butchers had been asserting in Louisiana. And so, on the day after they had announced The Slaughterhouse Decision, a majority of the Supreme Court, now it’s an 8 to 1 majority of the Supreme Court, but, well, I should say five justices, the same five justices that were in the majority in The Slaughterhouse, they said the following, Chief Justice Miller said, “If what we said yesterday is true and the right to pursue a lawful occupation or trade is not a privilege or immunity of national citizenship, then this case is an easy one because there is no right that she could assert that we are going to be able to deal with because there is no right, there is no such privilege or immunity under the 14th Amendment.”

So, for those five justices, the case was easy but in The Slaughterhouse Cases, there were four dissenters, and those dissenters said, at least three of them, all four voted but three wrote opinions saying, “The right to pursue a trade was a fundamental privilege of national citizenship.” So, they joined, three of those four dissenters joined the majority and said, “Myra Bradwell does not have a claim here.” Well, how could they justify what they did, given the fact that they thought there really was such a right. Well, what they said was, I’m paraphrasing here, “This was a reasonable regulation of that right which takes into account the differences between men and women, both their physical differences, their different roles as well as their different legal statuses,” and this was something that was within the reasonable discretion of states to regulate. So there is such a right, but this right is not being infringed. This right is not being unreasonably restricted. There was one dissenter in
Bradwell, the Chief Justice of the United States, Salmon Chase, who is an anti-slavery lawyer whose nickname when he was an anti-slavery lawyer was the attorney general for runaway slaves and who ultimately ended up writing the political platforms, the Constitutional platforms of the liberty and the free soil and then the Republican party’s before he was named to be Chief Justice of the United States succeeding Roger Taney after Roger Taney died. Chief Justice Chase dissented in The Slaughterhouse Cases with the other three and he dissented alone in Bradwell.

The reason why that is not widely known is that he didn’t write an opinion. He didn’t write an opinion because he was mortally Ill at the time, and in fact, he died three weeks after the decisions were announced. But in the Supreme Court reporter, there’s a notation there that I don’t believe has ever appeared before or since and that in it it says, “The Chief Justice dissents from the decision and all opinions in the case.” In other words, he not only dissented from the majority’s opinion, he dissented from the concurring justice’s opinion that said there was a right but this was a reasonable regulation. He dissented from both the majority’s opinion and the concurring justice’s opinion. So, Chief Justice Chase is a hero of mine and this is an example of where I think he was right and the eight justices in the majority were wrong.

Juliette: Yeah. You sent me something you wrote about him and I read most of it. It was very interesting. His life is fascinating. Everyone, go read about him because you will learn a lot, you’ll be fascinated, I mean, especially at this time, it’s amazing.

Randy: Well, it’s amazing that we’ve never heard of him. It’s amazing that nobody knows about him.

Juliette: Yeah. And everyone should.

Randy: He only help founded the Liberty, which was an anti-slavery party, the Free Soil which was also an anti-slavery party, and the Republican Party, another anti-slavery party, he not only did that, he was the first elected Republican governor in any state, in the state of Ohio. He then resigned from the governorship. He tried to get the presidency of the United States, and, kind of, people who know that about him know that, that he was a rival for Lincoln for the nomination for Republican President. When he didn’t get it, he was then selected to be a senator. He was a Senator. I’m sorry, he had previously been a senator, sorry, then he became Governor, then he became a senator again, but he resigned after three days. The second time he was appointed Senator by the state legislature to become Lincoln’s Secretary of Treasury, and then Lincoln then names him to be Chief Justice of the United States.

In fact, I would just one little fun fact there that the title of the office was Chief Justice of the Supreme Court when he was named to it. And it was while he was holding that office the Congress changed the title to Chief Justice of the United States. When I met John Roberts one time and I told him I was doing work on his predecessor, Salmon Chase. He told me that that was the only thing he really knew about Salmon Chase is that he owes his title to the fact that the office was renamed for Chase.

Juliette: I’m just so impressed with his entire story and all these facts. We could do an entire podcast episode about this sometime because that would get the word out. So, okay, in the United States v. Cruikshank, which is different from The Slaughterhouse Cases and Bradwell because it’s actually about enumerated rights. Can you explain what happened and kind of the effects of what happened there? Because it seemed pretty bad.

Randy: Right. Well, I think Slaughterhouse was about enumerated and unenumerated rights based on what Chief Justice Miller said, but you’re right, and most people know that it only actually concerned an unenumerated rights – the right to pursue a lawful occupation. Cruikshank made it clear that the privileges or immunities of citizens did not include even enumerated rights, rights that were in the constitution itself expressly. It involved a horrible, horrible massacre of African-Americans, it was known as the Colfax Massacre. This again came out of Louisiana, where there was a contest for a local election and the African-Americans had both sides winning the African-Americans were Republicans and the Democrats were the others, the former Confederates, and there ended up being a conflict between these two groups. The African-Americans took refuge in the courthouse in Colfax County Parish Courthouse with their families and they were surrounded by former confederate militiamen. So there was two militia squared off and eventually, they set the courthouse, the confederates set the courthouse on fire. When it came time to surrender, they let the women and children out and they proceeded to massacre well over a hundred of the African-American militiamen after they had surrendered to the whites. And so this was known as the Colfax Massacre. The offenders were prosecuted by a very courageous US attorney named Beckwith who was in Louisiana. He’d been stuck with his wife there after the Civil War was declared, and eventually named US attorney by the Republican President. I think at this point it’s Grant who named him US attorney after his predecessor had been found in his office with his throat slit.

Beckwith went after these perpetrators. They managed to get a few of them, a handful of them tried. There was a hung jury the first time and then later they went and tried them again and they got a conviction under a Civil Rights Act that the Republicans and Congress had enacted. This case goes to the Supreme Court and among the charges were, that they were infringing on the fundamental rights of these African-Americans to peaceably assemble that would be protected by the First Amendment. It goes to the Supreme Court and basically, the Supreme Court holds in a decision that was, I think, deserves to be pretty infamous along with Dred Scott that the Civil Rights Act that would have been enacted by Congress was unconstitutional because the privilege and immunities clause did not protect these enumerated rights from being violated by other people, by other private parties. If the government isn’t violating your rights, if it’s not the state of Louisiana that was doing it, then the 14th Amendment doesn’t protect it at all. And so for that reason, the Civil Rights Act, which did protect this was unconstitutional and then they let go all the people that had been convicted.

Juliette: That frustrates me to no end. But anyways–

Randy: Well, reading about the Supreme Court is highly frustrating, Juliette. Let me just warn you. When I was a law student, I like the Constitution as Americans tend to and I took Constitutional Law, and by the time I was done with Constitutional Law, I was done with the Constitution because I read all of this constitutional history in my Con Law casebook, not mine, but the one that we were assigned. And every time I got to one of the good parts of the constitution like the privileges or immunities clause, I would turn the page and there’d be a case like the Slaughterhouse or Cruikshank telling me that that doesn’t mean anything and that those cases are still good law today. So by the time I was done with my class as a student, I said, “If the Supreme Court doesn’t take the Constitution seriously why should I?” I then went into practice, I was a criminal prosecutor when I became a law professor, I was a contracts professor because I just didn’t think much of Constitutional Law. So that was how turned off I was by reading the history of how the Supreme Court has neglected to enforce all the good parts of the Constitution.

Juliette: It is so frustrating to see all of the parts that protect our individual rights so strongly just being completely gutted. So, okay, it took the 14th Amendment and took Slaughterhouse to reverse the Dred Scott decision but is there any way for us or for the Supreme Court to allow the 14th Amendment to live up to its potential? Or because it’s an amendment, there is no way, it is what it is now?

Randy: Well, it is what it is because the Supreme Court says that it is and so you have to get the Supreme Court to admit it was mistaken, which it has done many times before despite what it says about what’s called stare decisis or precedent, the Supreme Court has reversed itself many times before, we have to get them to do it again. One of our best opportunities to get them to do this was the McDonald case I mentioned earlier, which involved a right to keep and bear arms that were being asserted against the city of Chicago, which is a creature of the state of Illinois. That was a fantastic opportunity to revive the privileges or immunities clause because, A, it only involved an enumerated right, the right to keep and bear arms and, B, there was clear evidence that that was one of the principal rights that the framers and ratifiers of the 14th Amendment were trying to preserve the rights of free blacks to protect themselves from violence by whites, largely from white militiamen. Like I talked about in the Cruikshank. And so they the conservatives on the Supreme Court, actually the progressives and the conservatives, both had a great opportunity to revive the privilege and immunities clause if only to protect the enumerated right that they’re going to protect anyway, that they end up protecting. But they prefer to use the due process clause to do it because they were afraid of reviving the privileges and immunities clause.

The four progressive justices didn’t want to protect the right at all so they voted against any protection. Four conservative justices used the due process clause to do it and only one, Clarence Thomas, was prepared to use the original meaning of the privilege and immunities clause to do it. That was a terrible, terrible loss. We won the case, we got the right protected, but we lost the Constitution again because they used the wrong clause to do it, and then we fail to revive the privileges and immunities clause the way it should be.

Juliette: It’s frustrating, but there’s hope for the future, I guess, then.

Randy: You’re the future. You got to go up there and make these guys do it.

Juliette: Yeah. Maybe I’ll go and do some lawyering in front of the Supreme Court. I don’t know, we’ll see. So to wrap up, what is one thing you believed at one time in your life that you later changed your position on and why?

Randy: I know you asked me to think about that beforehand and I should have thought about it and had a really good answer for you for this. I’ve changed my mind on a lot of things. Well, I’ve changed my mind about originalism, that’s a pretty big thing. It’s sort of defines me now. I was not an originalist. When I finally started moving into Constitutional Law from Contract Law because I thought that originalism had been refuted of actually a couple of very well-known articles at the time that had been published. So I was persuaded by those articles that originalism was wrong, and therefore, I was not an originalist. And then, I was teaching a seminar at Boston University as a professor there, and it was a citation in one of the things I was teaching to a book by Lysander Spooner called The Unconstitutionality of Slavery. Now, I had heard of Lysander Spooner when I was a college student because he was a radical libertarian in the 19th century and I knew about one of the essays he wrote but I had no idea he’d written anything about slavery much less why he could argue in 1845 which is when his book was published that slavery was unconstitutional.

So I asked the library to get it for me. I got it. It turns out it was a 280-page book that he had written. And what he ended up using in that book was a form of original meaning originalism, the kind of originalist I am today. But which I didn’t know about and I thought to myself, “Hey, wait a second. I could get behind this. This is a form of originalism I could get behind.” Spooner was one of these anti-slavery guys I was talking about before, one of these guys responsible for changing how people viewed the Constitution that led to the 13th, 14th, and 15th Amendments but it also changed me and it was because I read Spooner. I’m probably the only person in the history of the United States who became an originalist because I read Lysander Spooner’s The Unconstitutionality of Slavery. And, eventually, after thinking about it and working on it, and developing the theory even further than Spooner had taken it, I decided I was an originalist, I came out in a piece I published in 1999. So that means for over 20 years, I have been committed to the idea of originalism as the way of interpreting the Constitution, something I had rejected prior to that. So I think that’s a pretty big change of mind.

Juliette: So if the Constitution of the United States was an anti-slavery document, can you make the case for that?

Randy: Well, I wouldn’t go that far. I don’t think the original Constitution was anti-slavery. That I think would be too far. I think it wasn’t as pro-slavery as it’s been made out to be. It was more of a compromise and I would recommend a book that draws the appropriate balance here by a historian named Sean Wilentz from Princeton who had a book published last year or the year before called No property in Man: Slavery and Anti-slavery at the Founding, it’s a very, very good book and it talks about the degree to which slavery was accommodated by the Constitution. On the other hand, it also talks about the efforts that pro-slavery delegates had to try to put an expressed endorsement of slavery into the text of the Constitution and how that was fought at every turn by those who oppose slavery at the convention and they prevailed. That is no affirmative positive endorsement of slavery was included in the text. That, later on, proves very important to craft arguments that slavery was ultimately incompatible with what the Constitution did say and the arguments that Spooner and many many others made. Their arguments were made possible by the pushback that delegates at the Philadelphia Convention had to stop the Constitution from being a pro-slavery document, which is what some Southern States wanted it to be.

The other thing to keep in mind as what was happening in Philadelphia is that in 1776 when the declaration is adopted unanimously by all the states, and it says that all persons, all men are created equal. In 1776, all 13 states were slaveholding states. Slavery was legal in all 13 states. By the time the Constitution gets enacted 11 years later, half the states had abolished slavery or had an already enacted gradual abolition of laws, so slavery was being outlawed in half of those states. That’s a lot of progress to have been made in 11 years and it’s because of that progress, the Constitution was kept deliberately neutral with respect to whether it was pro-slavery or anti-slavery.

Juliette: That’s beautiful. Thank you so much and thank you for being on this podcast and for taking the time to talk to us today. I learned a ton. So, thank you.

Randy: My pleasure, Juliette.

Juliette: Well, that’s all we have time for today. I’d like to thank my guests once again for their time and insight. I would also like to thank everyone who listens, subscribes, and shares The Great Antidote podcast. If you would like to be on the podcast or if you have a guest in mind, please feel free to reach out to me at [email protected] Bye.

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CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.

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