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Steve Hayward and his pseudonymous mystery guest “Lucretia” return for the second half of their conversation about the meaning and interpretation of the 14th Amendment. Building on last week’s analysis of the “equal protection clause,” this episode goes on to the other three important clauses in Section 1—the “citizenship clause,” the “privileges and immunities clause,” and the “due process clause.” Steve and “Lucretia” devote special attention to the controversy over “birthright citizenship,” which is freshly back in the news right now.
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Even though I am behind in listening to this podcast, I just wanted to say I enjoyed it so. Yes, more Lucretia! Also, as an aside, who wouldn’t want to have teachers like these two exploring the law rather than looking at it through racial, sexual, whatever blinders. I feel sorry for current students who can not learn from a great teacher because the teacher believes (probably rightly) that they cannot explore certain topics or ideas.
Steve: I enjoyed the presentation until you and Lucretia got to the “privileges and immunities” clause. Your presentation on that subject then went off the rails in several respects.
First, what legislators say about a text is interesting, but it is not determinative of the meaning of the text. Floor speeches do not bind the body, unless they are incorporated into a text adopted by the body. This is even more true of constitutional amendments where the state legislatures did not participate in the floor debates. They, and the law can only be held to the text that is actually duly adopted.
Second, the idea that Roger Taney’s opinion in Dred Scott is a relevant source for interpretation can only be described as astonishing. If the 14th Amendment had a relationship to prior SCOTUS case law it was to render Dred Scott null and void. Furthermore, what Taney wrote was in that context is pure dicta as he had no reason, other than the rhetorical trick of creating a parade of horrors, to interpret the meaning of Art IV §2.
Third. Originalism and Textualism are doctrines I hold dear. They demand a rigorous and precise reading of the texts for their correct implementation. Art IV §2 says: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Am 14 §1: “the privileges or immunities of citizens of the United States” Ams IX and X teach that the Federal and State governments are separate and distinct. By that standard, the P&I of US Citizens are separate and distinct from the P&I of the citizens of a state as such.
Fourth, it is very hard to say that P&I is a name for the rights and freedoms protected by the Bill of Rights. The word “privilege” is only used three other places in the constitution. In Art IV §2 as quoted above, Art I §6 (Senators and Representatives privileged from Arrest), and Art I §9 (The Privilege of the Writ of Habeas Corpus). The word “immunities” is used only in the phrase P&I. Ams 1 through 8 use the word “rights” five times. The only time AM 14 mentions right is in §2 where it discusses the rigth to vote. There is no textual evidence that P&I and rights are different words for the same things.
Fifth, the Slaughterhouse Cases were not cases about the status of the freed slaves. They were about a state economic regulatory scheme to ban commercial animal slaughter outside of a certain zone in and around New Orleans and to regulate slaughtering inside that zone. I am not going to do a law school case note here. I will say that the case is actually an impressive originalist exposition of the 14th and 13th Amendments.
Sixth, partisans of the broad interpretation of P&I cannot specify how, or if, their proposed interpretation would change the rule of decision in any case SCOTUS has decided in the last 150 years. The words P&I have no determinate meaning. If they merely incorporate the Bill of Rights, they do no more or less than the Court has done with the doctrine of incorporation that it invented out of whole cloth in the Warren years, but which is still alive and well. If P&I has some greater substantive meaning than incorporation, then its is in fact no different than the doctrine of substantive due process that the Court used on economic regulation in the early 20th Century (e.g. Lochner), renounced during the New Deal, and revived in its quest to make sexual debauchery immune from legal restraint.