Battle Brewing Over The Privileges Or Immunities Clause -- Wait, Really?

Libertarians aren't happy with this Trump judicial nominee.

ConstitutionConservatives of the libertarian bent are getting riled up over one of Trump’s appellate nominees. Kevin Newsom, poised to join the Eleventh Circuit, has apparently offended the Fountainhead Brigade with a 2000 Yale Law Journal where he argued that the Slaughterhouse Cases were correctly decided.

Now there’s a law review hot take!

While it’s hard to find anyone willing to defend the Slaughterhouse Cases for all but erasing the Privileges or Immunities Clause from constitutional law, at this point is there any reason to get upset about someone taking the other side? There’s not a burgeoning effort to overturn the case, and most of the substantive goals of the language have been implemented through other means, so what’s the big deal if a circuit judge wrote an academic paper about it once? More importantly, if people are irked about it, what does it say about them?

As you may recall, the Slaughterhouse Cases arose from Louisiana’s move to protect the drinking water of New Orleans from massive cholera outbreaks caused by animal waste, carcasses, and blood being dumped into the water supply. If that sounds wholly reasonable to you, then you can see why libertarians would hate it:

From the standpoint of constitutional text and history, the butchers had a strong argument. The debates over the framing and ratification of the 14th Amendment make it clear that the provision was originally understood to protect economic liberty. Indeed, according to the principal author of the Privileges or Immunities Clause, Republican Congressman John Bingham of Ohio, “the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

Yeah… for black people. The Fourteenth Amendment was about protecting those rights for black people. The scope of its protections may have expanded from the historical moment that gave rise to the Amendment, but the language is not about economic liberty as much as it’s about guaranteeing that people traditionally excluded from economic freedom — like, for example, SLAVES — could access those rights without interference from state governments.

For example, according to Clint Bolick, the Institute for Justice co-founder who currently serves as an Arizona Supreme Court justice, Slaughter-House is “one of the worst decisions in American law.” In Bolick’s view, the ruling eviscerated “one of the most sacred and central rights of Americans: economic liberty, the right to pursue a business or occupation free from arbitrary or excessive government regulation.” Georgetown law professor Randy Barnett, one of the most influential originalist scholars at work today, has likewise concluded that Slaughter-House “ignored the original meaning” of the 14th Amendment.

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Tom Sawyer would have loved the libertarians because they’re willing to whitewash anything. Apparently the post-Civil War amendments, in terms of their “original meaning,” weren’t so much about the Civil War as they were a bold statement that America stands up for the rights of entrenched business interests to poison communal water sources in pursuit of private economic gain.

My mistake.

Libertarian Legal Scholars Reject Trump Judicial Nominee’s Views on 14th Amendment [Reason]


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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