NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Christopher Green, Professor of Law and Jamie L. Whitten Chair in Law and Government at the University of Mississippi School of Law. This episode is Part 4 of a four part series on the Constitution and the Reconstruction Amendments. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Green, we don’t hear a lot about the Privileges or Immunities clause. Has it been overlooked or ignored in the modern legal system or maybe even taken for granted? CHRISTOPHER GREEN: I don't think the Privileges or Immunities Clause has been taken for granted. I think it's a specter that has been haunting constitutional law ever since 1873. So if you remember the adage that I use over and over again in constitutional law, nothing ever dies. You may have been told that the Privileges or Immunities Clause was killed on April 14th, 1873. And in a certain sense, it was. The court in 1873 said, "Well, the privileges of citizens of the United States, that's distinctively national privileges." That's things like the right to be protected by the federal government when you're in France. Well, that's a very small set. Not the kind of thing that any state would interfere with. Not the kind of thing that it was of particular concern to the freedman at the time. But 11 years later, after the Slaughterhouse Cases in 1873, the slaughtering monopoly came back to the court. And in a decision in 1884, they said Louisiana is allowed to revoke the slaughtering monopoly. But two concurrences by Justices Bradley and Field actually said, "We think we were right 11 years ago about the Privileges or Immunities Clause meaning something. And we thought that then, and we still think that today." Those concurrences, Justice Bradley's concurrence, saying that things like the right to be a butcher are still privileges of citizens of the United States, that concurrence was the key precedent that the court relied on 13 years after that in Allgeyer versus Louisiana, which is the key precedent on which the court relied on in Lochner versus United States in 1905. So the ghost of the Slaughterhouse dissents is haunting Constitutional Law because it lies under the floorboards of our key substantive due process precedence. So if you look at a case like Obergefell versus Hodges, what is it relying on? Well, Obergefell in 2015 is relying on Roe from 1973. Roe in '73 is relying on Griswold from '65. Griswold in '65 is relying on Meyer versus Nebraska from 1923. Meyer is relying, in 1923, on Lochner from 1905. Lochner in 1905 is relying on Agee from 1897, which is relying on the Slaughterhouse two concurrences from 1884, which is all relying on the Slaughterhouse cases dissent. So the idea that the Privileges or Immunities Clause has a robust, serious, important meaning is lying underneath the floorboards of current constitutional law. When the court talks about it, for instance, in the McDonald versus Chicago case, when the Court talks about the Privileges or Immunities Clause, you get the sense not that they're ignoring the clause, but really they're more frightened of it. They are worried about what exactly this clause might be doing. Like a lot of bad guys in horror films, they don't really want to mess with the Privileges or Immunities Clause, despite the fact that it occupies this foundational role in its substantive due process case law, they don't want to say anything that is going to cause scholars to jump out of the woodwork and say, "Wait a minute, that's not right." So in 2010, they say, "We understand there's been a lot of criticism about what we said about the Privileges or Immunities Clause in 1873, and we acknowledge that we were wrong in 1873." Scholars agree about very little else other than it doesn't mean what the court said in 1873. But the court and McDonald said, "Because there's no consensus, we don't want to mess with the Privileges or Immunities Clause. And ever since then, this Privileges or Immunities Clause has been in the background. Justice Thomas in 2010 said, "Well, I think I know at least part what the Privileges or Immunities Clause means. It includes the right to keep and bear arms." In cases like Timbs, about the Excessive Fines Clause, Justice Gorsuch has a concurrent saying, "Well, maybe we should shift incorporation from substantive due process to the Privileges or Immunities Clause. In Gundy versus United States, Justice Gorsuch's dissent mentions the shift from the Privileges or Immunities Clause to Due Process as a mistake that then caused the Due Process Clause to get bigger than it should have been. Chief Justice Roberts actually was on board of that dissent. So it looks like there's three justices who have acknowledged that the error in the Slaughterhouse Cases is part of what's driving substantive due process case law. Nobody on the Court defends what the court did in 1873. There are a number of justices who are obviously reticent to overrule the Slaughterhouse Cases, but nobody defends it. And really there's nobody on the court insisting that they not overrule it. So if you look at this scorecard of who on the court has a view about what should be done with the Privileges or Immunities Clause, it seems like it's free to nothing in favor of doing something with it. And as newer justices come on the Court, I think there is every prospect of thinking that when they look at the Privileges or Immunities Clause, they are going to think, "Yeah, we should be using this rather than substantive due process to look at enumerated rights or even incorporation of the Bill of Rights. Several recent books have come out giving more scholarship about the 14th Amendment, and especially about the Privileges or Immunities Clause. The scholarship on the 14th Amendment is getting more accessible to judges. And it seems likely that at some point they are going to confront again the issue of whether they should use the Privileges or Immunities Clause or continue with substantive due process. PUBLIUS: What is substantive due process? Where did it come from? CHRISTOPHER GREEN: Okay. Where does substantive due process come from? So, there are some cases before the civil war that promote a doctrine which is usually called vested rights doctrine. So, this is a doctrine that, if you own property, the government can't just pass an act of the legislature, taking away that property. They can only take away your property if they pass a law and then allow you to violate that law and then take away your property. So, for instance, in the Dartmouth College case, New Hampshire wanted to just pass a law changing who was in charge of Dartmouth College. Ultimately, the US Supreme Court decided it on the contract clause. But there's a famous argument by Daniel Webster, invoking the state constitutional provision about depriving people of property, except by the law of the land. And Webster said, "To deprive somebody of something by the law of the land means you can't just have a legislature confiscate the property." The kind of substantive due process you get later on, though, is different from the vested rights cases. The first big case on substantive due process is Munn v. Illinois in 1877. It seems pretty clear that the reason you have the expansion of substantive due process in 1877 is because of the death of the Privileges or Immunities Clause four years before in Slaughterhouse in 1873. In 1873, it was a 5-4 decision. One of the Justices in the majority was Justice William Strong. And Justice Strong, he actually dissents in 1877. He and Justice Field dissent. It's a 7-2 decision, Munn is. But Justice Strong, he's in the majority, saying, "Yeah, the Privileges or Immunities Clause means basically nothing. But in 1877, Justices Strong and Field say there is a substantive due process, right, against excessive rate regulations for grain elevators and for railroads. The majority in Munn does not say, "Oh, substantive due process? That's just not a thing. This is a super easy case." In Munn, the Court says there is an important core of substantive rights protected by the Due Process Clause. The Munn court takes a distinction made 200 years before by Chief Justice Matthew Hale. Matthew Hale distinguished between three kinds of areas of the law. We have the ius regium, which is things that the government itself is doing. We have the ius privatum, which is things that purely private people, with no public interest involved, are doing. But in between there, you have things that people like the railroads or grain elevators are doing. That's the ius publicum. So, these are businesses that are affected with a public interest. So, what Munn says is that, if you are in the ius publicum, you can be subject to a duty to serve all members of the public equally. We can have regulations of businesses affected with a public interest if those regulations serve the public good. But due process prevents the government from regulating people who are merely in the ius privatum. The Court in Munn gave, really, no textual explanation for why the Due Process Clause should be accomplishing this. And there's a much, much better argument for saying that to be a citizen means the right to mind your own affairs under the ius privatum, and also the right to be treated as an equal when you're dealing with businesses in the ius publicum. In 1872, the discussions in Congress make clear that the common law tradition of these sorts of distinctions is seen to be baked into the Privileges or Immunities Clause. So, you can justify the doctrine that they come up with in cases like Munn much more easily under the Privileges or Immunities Clause. It seems pretty earlier that the reason they put that into the Fourteenth Amendment is because they really realized, by that point, that they should have been using the Privileges or Immunities Clause. They shouldn't have killed it prematurely in 1873. But they think, "Oh, well, we can just use the Due Process Clause instead." Given that Justice Strong himself was saying that there should be substantive rights, it seems like the coalition, to say there should be very few substantive rights under the Fourteenth Amendment, had fallen apart. Chief Justice Waite was the one who officially wrote the opinion, but it is generally seen to have been more or less ghostwritten by Justice Bradley. Justice Bradley was one of the dissenters in Slaughterhouse. And Chief Justice Waite wrote to Bradley to say, "Well, as usual, you will do all the work and I will get the credit." So, he's the Chief Justice, he gets to decide to put his own name on it. But the guts of the reasoning in Munn, the majority opinion is really very similar to the kind of analysis you got four years before in the dissents in the Slaughterhouse Cases. And that's not a surprise because the same guy, Justice Bradley, was doing a lot of the work in 1873 and in 1877. PUBLIUS: Is there an alternative to substantive due process? CHRISTOPHER GREEN: So, if we didn't have substantive due process, what would we have? Well, we would have procedural due process. And Justice Story in 1833 gave a description of the Due Process Clause, which lots and lots of people in Congress, especially in 1862... 1862, there's a huge debate in Congress over due process objections to the second Confiscation Act. Lots and lots of congressmen say, "We think Justice Story's definition of due process was correct." Well, what did Justice Story say? It said, "The other part of the clause," talking about the Fifth Amendment, "is but an enlargement of the language of Magna Carta." He quotes it in Latin. "Neither will he pass upon him or condemn him but by the lawful judgment of his peers or by the law of the land. Lord Cooke says that these latter words per legem terrae, by the law of the land, mean by due process of law, that is without due presentment or indictment and being brought in to answer thereto by due process of the common law, so that this clause, in effect, affirms the right of trial, according to the process and proceedings of the common law." So, that phrase, " the process and proceedings of the common law" gets quoted over and over again in 1862. If you're trying to understand what is the immediate background to the Fourteenth Amendment, what does due process of law mean? It means judicial process, the process and proceedings of the common law. States are not allowed to take away people's life, liberty, or property unless they go through a process, according to the process and proceedings of the common law. It's not a guarantee that prevents states from designating particular people as part of a ius publicum, as opposed to the ius privatum. It's merely a procedural guarantee. It does have aspects protecting vested rights, saying a legislature can't just confiscate. A legislature, in order to get somebody's property, has to say that, if somebody does something, "We'll go through a judicial process to get it." But aside from that sort of vested rights, "substantive" due process... Aside from that sort of thing, the Due Process Clause is procedural. So, one question you might have: how do the parts of the Fourteenth Amendment fit together? It seems to me that the Fourteenth Amendment has these three parts fitting together that are almost exactly the same way. These three parts of the Fourteenth Amendment Section 1 fit together in almost exactly the same way that the parts of Magna Carta from 1215 fit together. In Magna Carta, King John, most of the Magna Carta is filled with a bunch of promises to make the law be a certain way. Most of Magna Carta is about the content of the law. Paragraphs 39 and 40 give supplemental guarantees. Paragraph 39 says, "In addition to the fact that we're setting the law to be a certain way, we are not going to go against any person. We're not going to take away people's property, unless we do it by the law."So, it says the law is the exclusive method by which the King can take away people's property. Paragraph 40 of Magna Carta says, "To no one will we deny, delay, or sell right or justice." So, when you've got the law being a certain way, the King is obliged to enforce it. The King has to give people bold their rights. So, what do we see in the Fourteenth Amendment? We see exactly the same three things going on. The Privileges or Immunities Clause is the one that says what the content of the law is. " No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." That says what the law has to be. The Due Process Clause prevents states from going outside the law to get at people. You can't deprive any person of life, liberty, or property, except by due process of law. And then the Equal Protection Clause, just like Magna Carta Paragraph 40, requires states to enforce the law. "To no person shall we deny the equal protection of the laws. No state shall deny... To any person within its jurisdiction, to anybody who is required to obey the speaking of the law of a state, to none of those people is a state allowed to deny the protection of the laws, the enforcement of the laws. So, we see that those three things fit together in the Fourteenth Amendment just the same way as they fit together in 1215. You got to set the content of the law, you got to prevent people from doing things outside the law, and you got to make sure that the executive doesn't just leave the law unenforced. Similarly, Privileges or Immunities Clause defines what the law is, the Due Process Clause means the law is the exclusive means of going against people, and the Equal Protection Clause requires states to enforce the law, give people a right to a remedy. PUBLIUS: Does it really matter where we find these rights in the Constitution, as long as people get the protection they need from the government? CHRISTOPHER GREEN: So, some peoplesay, "Well, even if we switched the theory of incorporation of the Bill of Rights or unenumerated rights from due process to the Privileges or Immunities Clause, isn't this just really six of one, half a dozen of the other? If we take anti-discrimination doctrine and move it from the Equal Protection Clause to the Privileges or Immunities Clause, even if we did both of those things, what difference does it make at this point?" Well, one difference is that, if you have a provision that's based on citizenship, you would have a difference in who gets the rights. So, if you have a non-citizen making arguments under the Equal Protection Clause or the Due Process Clause, if you have a corporation making arguments under either of those clauses, because corporations and citizens of other countries aren't citizens of the United States, there would be more leeway for states to act if the vehicle for those sorts of rights was the Privileges or Immunities Clause, rather than due process or equal protection. Another big difference, though, is, if you took anti-discrimination doctrine and moved it to the Privileges or Immunities Clause, well, what does the Equal Protection Clause mean? The Equal Protection Clause gives people the right to protection from violence. So, two cases that the Court has decided recently, saying that there's no duty to protect people from violence, DeShaney, which is a case from 1989, and Castle Rock, a case from 2005, those are wrongly decided. If you take anti-discrimination doctrine and move it to the Privileges or Immunities Clause, then you can properly enforce the duty to protect from the Equal Protection Clause. People would have a right to the same protection of the laws that other people in the jurisdiction are getting. And a protection from violence is an extraordinarily important right, which we don't get today because people readthe Equal Protection Clause merely to be an anti-discrimination guarantee, albeit a very generic, broad anti-discrimination guarantee. Because the Court has adhered to the textual mangling of the clause that they did in 1886, it is impossible to see the wrongness of DeShaney as clearly as people should be able to see it. PUBLIUS: Are there any other landmark cases where the Supreme Court discussed this interpretation of the Equal Protection clause? CHRISTOPHER GREEN: Yeah. In Yick Wo, in 1886, the Court gave, really, the only textual explanation of why we should see the Equal Protection Clause as the generic anti-discrimination guarantee, rather than the Privileges or Immunities Clause. And the Court did not do a particularly persuasive job. The Court quotes the Due Process and Equal Protection Clauses and says, "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. And the equal protection of the laws is a pledge of the protection of equal laws." So, you can see what the Court is doing there. They're just plucking the adjective "equal" and moving it from modifying "protection" earlier into the sentence to modify "laws." They're moving the adjective "equal." Instead of modifying "protection of the laws," they're moving it later in the sentence to modify "laws." I sometimes call this adjectival transmigration. It is not a textually plausible will move. What does protection of the laws means? Well, two very important sources are Marbury v. Madison and William Blackstone. Here's what Marbury v. Madison says: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury." So, Marbury in 1803 is concerned with whether or not Marbury, this poor fellow who didn't get his commission that he has a right to, whether he has the right to a remedy. The protection of the laws for Marshall is the right to a remedy. Here's what William Blackstone says about the protection of the law: he distinguishes parts of the law, talks about the declaratory part of the law, talks about the remedial part of the law. And he says, "In vain would rights be declared, in vain directed to be observed if there were no method of recovering and asserting these rights when wrongfully withheld or invaded." This is what we mean properly when we speak of the protection of the law. William Blackstone gives a definition of the key term in the Fourteenth Amendment. And it would obviously not be a good idea to completely ignore that definition that was enormously prominent in Anglo-American law. If we go with the Blackstone definition, we are going to see the Equal Protection Clause as a demand that states, "Provide protection of the law for everyone in their jurisdiction." One thing that's interesting about the Equal Protection Clause is the set of people to whom the state is obliged to give equal protection of the laws is everyone in the jurisdiction. There is a long, long tradition of saying that allegiance and protection are reciprocal obligations. Who is obliged to obey the government, to give allegiance to the government? It's everybody that the government is protecting. Whom is the government obliged to protect? It's everybody obliged to obey it. So, this is one of the justifications in the Declaration of Independence. In December 1775, George III says, "I am no longer going to protect these Americans. If you've got Lexington and Concord, everybody is fighting against me. I'm not going to protect you people. You people are outside of my protection." And in the Declaration of Independence, one of the justifications for not having to obey George III is, " He has declared us out of his protection." Similarly, the Fourteenth Amendment says everybody that you are demanding obey you, everyone who is within your jurisdiction, your speaking of the law, those are the people you are obliged to protect. PUBLIUS: That doesn’t sound like the way the Equal Protection clause is utilized now. Can you discuss more about the original purpose of the clause? CHRISTOPHER GREEN: So, the original paradigmatic violation of the Equal Protection Clause was the toleration of Klan violence. So, you might remember Nathan Bedford Forrest was a military leader during the Civil War. He was one of the first pioneers in guerilla warfare in Tennessee. So, he was operating militarily during the Civil War, sneaking around, acting as a guerrilla. After the war, Forrest sets up the Ku Klux Klan, doing almost exactly the same thing, sets up the KU Klux Klan as essentially a large criminal enterprise. Abraham Lincoln would probably say the entire Confederacy was a criminal enterprise. But after it gets to be a somewhat disorganized criminal enterprise, it turns into the Klan. And the Klansmen are running around and committing acts of violence against the freedmen. They are intimidating them. And from time to time, the state governments are either unwilling or unable to protect people from that violence. The failure of Southern states to protect people from violence, paradigmatically, Ku Klux Klan violence, is the central example of a violation of violation of the Equal Protection Clause. To know that people are suffering violence from the hands of private individuals and not to protect them, that is what the Equal Protection Clause was intended to prevent. It's intended to prevent the kind of violence you saw in Memphis in May 1866 and you saw in New Orleans at the end of July 1866, the toleration or the inability to control private violence. Today, and really ever since 1886, in the Yick Wo v. Hopkins case, the Equal Protection Clause is seen as a ban on hostile and discriminating legislation of the sort that Justice Field thought the Privileges or Immunities Clause was supposed to ban. So, for instance, in 1996, in Romer v. Evans, Justice Kennedy began his opinion by quoting the opinion from 100 years before in Justice Harlan's dissent, saying, "Our constitution neither knows nor tolerates classes among its citizens." Classification among the people in a state is what the Equal Protection Clause is seen as concerned about, for any right at all. It is not confined to protection. It applies to education. So, Brown v Board of Education is the biggest equal protection case, even though education doesn't really have anything to do with protecting people from violence. It's not a good fit with the original meaning of the Equal Protection Clause. It is a good fit with the original meaning of the Privileges or Immunities Clause, but that's because education is a privilege of citizens of the United States, not because the equal protection of the laws is the protection of equal laws, the way Yick Wo v. Hopkins said. So, current doctrine under the Equal Protection Clause has this very, very complicated tripartite scheme of strict scrutiny, intermediate scrutiny, and rational basis scrutiny. For strict scrutiny, you have to figure out whether something is narrowly tailored to a compelling state interest. For intermediate scrutiny, you have to decide whether it's substantially related to an important state interest. For rational basis, you have to decide whether it is rationally related to a legitimate state interest. All this complicated stuff for anti-discrimination law under the Equal Protection Clause, which is not at all what the original meaning of the Equal Protection Clause is. It is similar to the original meaning of the Privileges or Immunities Clause, though. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, Originalism, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Christopher Green, Professor of Law and Jamie L. Whitten Chair in Law and Government at the University of Mississippi School of Law. This episode is Part 4 of a four part series on the Constitution and the Reconstruction Amendments. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Green, we don’t hear a lot about the Privileges or Immunities clause. Has it been overlooked or ignored in the modern legal system or maybe even taken for granted? I don't think the Privileges or Immunities Clause has been taken for granted. I think it's a specter that has been haunting constitutional law ever since 1873. So if you remember the adage that I use over and over again in constitutional law, nothing ever dies. You may have been told that the Privileges or Immunities Clause was killed on April 14th, 1873. And in a certain sense, it was. The court in 1873 said, "Well, the privileges of citizens of the United States, that's distinctively national privileges." That's things like the right to be protected by the federal government when you're in France. Well, that's a very small set. Not the kind of thing that any state would interfere with. Not the kind of thing that it was of particular concern to the freedman at the time. But 11 years later, after the Slaughterhouse Cases in 1873, the slaughtering monopoly came back to the court. And in a decision in 1884, they said Louisiana is allowed to revoke the slaughtering monopoly. But two concurrences by Justices Bradley and Field actually said, "We think we were right 11 years ago about the Privileges or Immunities Clause meaning something. And we thought that then, and we still think that today." Those concurrences, Justice Bradley's concurrence, saying that things like the right to be a butcher are still privileges of citizens of the United States, that concurrence was the key precedent that the court relied on 13 years after that in Allgeyer versus Louisiana, which is the key precedent on which the court relied on in Lochner versus United States in 1905. So the ghost of the Slaughterhouse dissents is haunting Constitutional Law because it lies under the floorboards of our key substantive due process precedence. So if you look at a case like Obergefell versus Hodges, what is it relying on? Well, Obergefell in 2015 is relying on Roe from 1973. Roe in '73 is relying on Griswold from '65. Griswold in '65 is relying on Meyer versus Nebraska from 1923. Meyer is relying, in 1923, on Lochner from 1905. Lochner in 1905 is relying on Agee from 1897, which is relying on the Slaughterhouse two concurrences from 1884, which is all relying on the Slaughterhouse cases dissent. So the idea that the Privileges or Immunities Clause has a robust, serious, important meaning is lying underneath the floorboards of current constitutional law. When the court talks about it, for instance, in the McDonald versus Chicago case, when the Court talks about the Privileges or Immunities Clause, you get the sense not that they're ignoring the clause, but really they're more frightened of it. They are worried about what exactly this clause might be doing. Like a lot of bad guys in horror films, they don't really want to mess with the Privileges or Immunities Clause, despite the fact that it occupies this foundational role in its substantive due process case law, they don't want to say anything that is going to cause scholars to jump out of the woodwork and say, "Wait a minute, that's not right." So in 2010, they say, "We understand there's been a lot of criticism about what we said about the Privileges or Immunities Clause in 1873, and we acknowledge that we were wrong in 1873." Scholars agree about very little else other than it doesn't mean what the court said in 1873. But the court and McDonald said, "Because there's no consensus, we don't want to mess with the Privileges or Immunities Clause. And ever since then, this Privileges or Immunities Clause has been in the background. Justice Thomas in 2010 said, "Well, I think I know at least part what the Privileges or Immunities Clause means. It includes the right to keep and bear arms." In cases like Timbs, about the Excessive Fines Clause, Justice Gorsuch has a concurrent saying, "Well, maybe we should shift incorporation from substantive due process to the Privileges or Immunities Clause. In Gundy versus United States, Justice Gorsuch's dissent mentions the shift from the Privileges or Immunities Clause to Due Process as a mistake that then caused the Due Process Clause to get bigger than it should have been. Chief Justice Roberts actually was on board of that dissent. So it looks like there's three justices who have acknowledged that the error in the Slaughterhouse Cases is part of what's driving substantive due process case law. Nobody on the Court defends what the court did in 1873. There are a number of justices who are obviously reticent to overrule the Slaughterhouse Cases, but nobody defends it. And really there's nobody on the court insisting that they not overrule it. So if you look at this scorecard of who on the court has a view about what should be done with the Privileges or Immunities Clause, it seems like it's free to nothing in favor of doing something with it. And as newer justices come on the Court, I think there is every prospect of thinking that when they look at the Privileges or Immunities Clause, they are going to think, "Yeah, we should be using this rather than substantive due process to look at enumerated rights or even incorporation of the Bill of Rights. Several recent books have come out giving more scholarship about the 14th Amendment, and especially about the Privileges or Immunities Clause. The scholarship on the 14th Amendment is getting more accessible to judges. And it seems likely that at some point they are going to confront again the issue of whether they should use the Privileges or Immunities Clause or continue with substantive due process. What is substantive due process? Where did it come from? Okay. Where does substantive due process come from? So, there are some cases before the civil war that promote a doctrine which is usually called vested rights doctrine. So, this is a doctrine that, if you own property, the government can't just pass an act of the legislature, taking away that property. They can only take away your property if they pass a law and then allow you to violate that law and then take away your property. So, for instance, in the Dartmouth College case, New Hampshire wanted to just pass a law changing who was in charge of Dartmouth College. Ultimately, the US Supreme Court decided it on the contract clause. But there's a famous argument by Daniel Webster, invoking the state constitutional provision about depriving people of property, except by the law of the land. And Webster said, "To deprive somebody of something by the law of the land means you can't just have a legislature confiscate the property." The kind of substantive due process you get later on, though, is different from the vested rights cases. The first big case on substantive due process is Munn v. Illinois in 1877. It seems pretty clear that the reason you have the expansion of substantive due process in 1877 is because of the death of the Privileges or Immunities Clause four years before in Slaughterhouse in 1873. In 1873, it was a 5-4 decision. One of the Justices in the majority was Justice William Strong. And Justice Strong, he actually dissents in 1877. He and Justice Field dissent. It's a 7-2 decision, Munn is. But Justice Strong, he's in the majority, saying, "Yeah, the Privileges or Immunities Clause means basically nothing. But in 1877, Justices Strong and Field say there is a substantive due process, right, against excessive rate regulations for grain elevators and for railroads. The majority in Munn does not say, "Oh, substantive due process? That's just not a thing. This is a super easy case." In Munn, the Court says there is an important core of substantive rights protected by the Due Process Clause. The Munn court takes a distinction made 200 years before by Chief Justice Matthew Hale. Matthew Hale distinguished between three kinds of areas of the law. We have the ius regium, which is things that the government itself is doing. We have the ius privatum, which is things that purely private people, with no public interest involved, are doing. But in between there, you have things that people like the railroads or grain elevators are doing. That's the ius publicum. So, these are businesses that are affected with a public interest. So, what Munn says is that, if you are in the ius publicum, you can be subject to a duty to serve all members of the public equally. We can have regulations of businesses affected with a public interest if those regulations serve the public good. But due process prevents the government from regulating people who are merely in the ius privatum. The Court in Munn gave, really, no textual explanation for why the Due Process Clause should be accomplishing this. And there's a much, much better argument for saying that to be a citizen means the right to mind your own affairs under the ius privatum, and also the right to be treated as an equal when you're dealing with businesses in the ius publicum. In 1872, the discussions in Congress make clear that the common law tradition of these sorts of distinctions is seen to be baked into the Privileges or Immunities Clause. So, you can justify the doctrine that they come up with in cases like Munn much more easily under the Privileges or Immunities Clause. It seems pretty earlier that the reason they put that into the Fourteenth Amendment is because they really realized, by that point, that they should have been using the Privileges or Immunities Clause. They shouldn't have killed it prematurely in 1873. But they think, "Oh, well, we can just use the Due Process Clause instead." Given that Justice Strong himself was saying that there should be substantive rights, it seems like the coalition, to say there should be very few substantive rights under the Fourteenth Amendment, had fallen apart. Chief Justice Waite was the one who officially wrote the opinion, but it is generally seen to have been more or less ghostwritten by Justice Bradley. Justice Bradley was one of the dissenters in Slaughterhouse. And Chief Justice Waite wrote to Bradley to say, "Well, as usual, you will do all the work and I will get the credit." So, he's the Chief Justice, he gets to decide to put his own name on it. But the guts of the reasoning in Munn, the majority opinion is really very similar to the kind of analysis you got four years before in the dissents in the Slaughterhouse Cases. And that's not a surprise because the same guy, Justice Bradley, was doing a lot of the work in 1873 and in 1877. Is there an alternative to substantive due process? So, if we didn't have substantive due process, what would we have? Well, we would have procedural due process. And Justice Story in 1833 gave a description of the Due Process Clause, which lots and lots of people in Congress, especially in 1862... 1862, there's a huge debate in Congress over due process objections to the second Confiscation Act. Lots and lots of congressmen say, "We think Justice Story's definition of due process was correct." Well, what did Justice Story say? It said, "The other part of the clause," talking about the Fifth Amendment, "is but an enlargement of the language of Magna Carta." He quotes it in Latin. "Neither will he pass upon him or condemn him but by the lawful judgment of his peers or by the law of the land. Lord Cooke says that these latter words per legem terrae, by the law of the land, mean by due process of law, that is without due presentment or indictment and being brought in to answer thereto by due process of the common law, so that this clause, in effect, affirms the right of trial, according to the process and proceedings of the common law." So, that phrase, " the process and proceedings of the common law" gets quoted over and over again in 1862. If you're trying to understand what is the immediate background to the Fourteenth Amendment, what does due process of law mean? It means judicial process, the process and proceedings of the common law. States are not allowed to take away people's life, liberty, or property unless they go through a process, according to the process and proceedings of the common law. It's not a guarantee that prevents states from designating particular people as part of a ius publicum, as opposed to the ius privatum. It's merely a procedural guarantee. It does have aspects protecting vested rights, saying a legislature can't just confiscate. A legislature, in order to get somebody's property, has to say that, if somebody does something, "We'll go through a judicial process to get it." But aside from that sort of vested rights, "substantive" due process... Aside from that sort of thing, the Due Process Clause is procedural. So, one question you might have: how do the parts of the Fourteenth Amendment fit together? It seems to me that the Fourteenth Amendment has these three parts fitting together that are almost exactly the same way. These three parts of the Fourteenth Amendment Section 1 fit together in almost exactly the same way that the parts of Magna Carta from 1215 fit together. In Magna Carta, King John, most of the Magna Carta is filled with a bunch of promises to make the law be a certain way. Most of Magna Carta is about the content of the law. Paragraphs 39 and 40 give supplemental guarantees. Paragraph 39 says, "In addition to the fact that we're setting the law to be a certain way, we are not going to go against any person. We're not going to take away people's property, unless we do it by the law."So, it says the law is the exclusive method by which the King can take away people's property. Paragraph 40 of Magna Carta says, "To no one will we deny, delay, or sell right or justice." So, when you've got the law being a certain way, the King is obliged to enforce it. The King has to give people bold their rights. So, what do we see in the Fourteenth Amendment? We see exactly the same three things going on. The Privileges or Immunities Clause is the one that says what the content of the law is. " No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." That says what the law has to be. The Due Process Clause prevents states from going outside the law to get at people. You can't deprive any person of life, liberty, or property, except by due process of law. And then the Equal Protection Clause, just like Magna Carta Paragraph 40, requires states to enforce the law. "To no person shall we deny the equal protection of the laws. No state shall deny... To any person within its jurisdiction, to anybody who is required to obey the speaking of the law of a state, to none of those people is a state allowed to deny the protection of the laws, the enforcement of the laws. So, we see that those three things fit together in the Fourteenth Amendment just the same way as they fit together in 1215. You got to set the content of the law, you got to prevent people from doing things outside the law, and you got to make sure that the executive doesn't just leave the law unenforced. Similarly, Privileges or Immunities Clause defines what the law is, the Due Process Clause means the law is the exclusive means of going against people, and the Equal Protection Clause requires states to enforce the law, give people a right to a remedy. Does it really matter where we find these rights in the Constitution, as long as people get the protection they need from the government? So, some peoplesay, "Well, even if we switched the theory of incorporation of the Bill of Rights or unenumerated rights from due process to the Privileges or Immunities Clause, isn't this just really six of one, half a dozen of the other? If we take anti-discrimination doctrine and move it from the Equal Protection Clause to the Privileges or Immunities Clause, even if we did both of those things, what difference does it make at this point?" Well, one difference is that, if you have a provision that's based on citizenship, you would have a difference in who gets the rights. So, if you have a non-citizen making arguments under the Equal Protection Clause or the Due Process Clause, if you have a corporation making arguments under either of those clauses, because corporations and citizens of other countries aren't citizens of the United States, there would be more leeway for states to act if the vehicle for those sorts of rights was the Privileges or Immunities Clause, rather than due process or equal protection. Another big difference, though, is, if you took anti-discrimination doctrine and moved it to the Privileges or Immunities Clause, well, what does the Equal Protection Clause mean? The Equal Protection Clause gives people the right to protection from violence. So, two cases that the Court has decided recently, saying that there's no duty to protect people from violence, DeShaney, which is a case from 1989, and Castle Rock, a case from 2005, those are wrongly decided. If you take anti-discrimination doctrine and move it to the Privileges or Immunities Clause, then you can properly enforce the duty to protect from the Equal Protection Clause. People would have a right to the same protection of the laws that other people in the jurisdiction are getting. And a protection from violence is an extraordinarily important right, which we don't get today because people readthe Equal Protection Clause merely to be an anti-discrimination guarantee, albeit a very generic, broad anti-discrimination guarantee. Because the Court has adhered to the textual mangling of the clause that they did in 1886, it is impossible to see the wrongness of DeShaney as clearly as people should be able to see it. Are there any other landmark cases where the Supreme Court discussed this interpretation of the Equal Protection clause? Yeah. In Yick Wo, in 1886, the Court gave, really, the only textual explanation of why we should see the Equal Protection Clause as the generic anti-discrimination guarantee, rather than the Privileges or Immunities Clause. And the Court did not do a particularly persuasive job. The Court quotes the Due Process and Equal Protection Clauses and says, "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. And the equal protection of the laws is a pledge of the protection of equal laws." So, you can see what the Court is doing there. They're just plucking the adjective "equal" and moving it from modifying "protection" earlier into the sentence to modify "laws." They're moving the adjective "equal." Instead of modifying "protection of the laws," they're moving it later in the sentence to modify "laws." I sometimes call this adjectival transmigration. It is not a textually plausible will move. What does protection of the laws means? Well, two very important sources are Marbury v. Madison and William Blackstone. Here's what Marbury v. Madison says: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury." So, Marbury in 1803 is concerned with whether or not Marbury, this poor fellow who didn't get his commission that he has a right to, whether he has the right to a remedy. The protection of the laws for Marshall is the right to a remedy. Here's what William Blackstone says about the protection of the law: he distinguishes parts of the law, talks about the declaratory part of the law, talks about the remedial part of the law. And he says, "In vain would rights be declared, in vain directed to be observed if there were no method of recovering and asserting these rights when wrongfully withheld or invaded." This is what we mean properly when we speak of the protection of the law. William Blackstone gives a definition of the key term in the Fourteenth Amendment. And it would obviously not be a good idea to completely ignore that definition that was enormously prominent in Anglo-American law. If we go with the Blackstone definition, we are going to see the Equal Protection Clause as a demand that states, "Provide protection of the law for everyone in their jurisdiction." One thing that's interesting about the Equal Protection Clause is the set of people to whom the state is obliged to give equal protection of the laws is everyone in the jurisdiction. There is a long, long tradition of saying that allegiance and protection are reciprocal obligations. Who is obliged to obey the government, to give allegiance to the government? It's everybody that the government is protecting. Whom is the government obliged to protect? It's everybody obliged to obey it. So, this is one of the justifications in the Declaration of Independence. In December 1775, George III says, "I am no longer going to protect these Americans. If you've got Lexington and Concord, everybody is fighting against me. I'm not going to protect you people. You people are outside of my protection." And in the Declaration of Independence, one of the justifications for not having to obey George III is, " He has declared us out of his protection." Similarly, the Fourteenth Amendment says everybody that you are demanding obey you, everyone who is within your jurisdiction, your speaking of the law, those are the people you are obliged to protect. That doesn’t sound like the way the Equal Protection clause is utilized now. Can you discuss more about the original purpose of the clause? So, the original paradigmatic violation of the Equal Protection Clause was the toleration of Klan violence. So, you might remember Nathan Bedford Forrest was a military leader during the Civil War. He was one of the first pioneers in guerilla warfare in Tennessee. So, he was operating militarily during the Civil War, sneaking around, acting as a guerrilla. After the war, Forrest sets up the Ku Klux Klan, doing almost exactly the same thing, sets up the KU Klux Klan as essentially a large criminal enterprise. Abraham Lincoln would probably say the entire Confederacy was a criminal enterprise. But after it gets to be a somewhat disorganized criminal enterprise, it turns into the Klan. And the Klansmen are running around and committing acts of violence against the freedmen. They are intimidating them. And from time to time, the state governments are either unwilling or unable to protect people from that violence. The failure of Southern states to protect people from violence, paradigmatically, Ku Klux Klan violence, is the central example of a violation of violation of the Equal Protection Clause. To know that people are suffering violence from the hands of private individuals and not to protect them, that is what the Equal Protection Clause was intended to prevent. It's intended to prevent the kind of violence you saw in Memphis in May 1866 and you saw in New Orleans at the end of July 1866, the toleration or the inability to control private violence. Today, and really ever since 1886, in the Yick Wo v. Hopkins case, the Equal Protection Clause is seen as a ban on hostile and discriminating legislation of the sort that Justice Field thought the Privileges or Immunities Clause was supposed to ban. So, for instance, in 1996, in Romer v. Evans, Justice Kennedy began his opinion by quoting the opinion from 100 years before in Justice Harlan's dissent, saying, "Our constitution neither knows nor tolerates classes among its citizens." Classification among the people in a state is what the Equal Protection Clause is seen as concerned about, for any right at all. It is not confined to protection. It applies to education. So, Brown v Board of Education is the biggest equal protection case, even though education doesn't really have anything to do with protecting people from violence. It's not a good fit with the original meaning of the Equal Protection Clause. It is a good fit with the original meaning of the Privileges or Immunities Clause, but that's because education is a privilege of citizens of the United States, not because the equal protection of the laws is the protection of equal laws, the way Yick Wo v. Hopkins said. So, current doctrine under the Equal Protection Clause has this very, very complicated tripartite scheme of strict scrutiny, intermediate scrutiny, and rational basis scrutiny. For strict scrutiny, you have to figure out whether something is narrowly tailored to a compelling state interest. For intermediate scrutiny, you have to decide whether it's substantially related to an important state interest. For rational basis, you have to decide whether it is rationally related to a legitimate state interest. All this complicated stuff for anti-discrimination law under the Equal Protection Clause, which is not at all what the original meaning of the Equal Protection Clause is. It is similar to the original meaning of the Privileges or Immunities Clause, though. Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, Originalism, the Judiciary and more. Thanks for listening. See you in class!