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 3 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: In the last podcast episode, you discussed how the 13th, 14th and 15th Amendments were ratified. In this episode, I want to take a closer look at the Amendment that we hear about the most - the 14th. Professor Green, why does the “privileges or immunities” clause of 14th Amendment matter? CHRISTOPHER GREEN: The main reason the Privileges or Immunities Clause is so important is because it establishes the status, citizenship, which was absolutely central to the understanding of those during reconstruction about what they were trying to achieve for the formerly enslaved population, the African American population of the South. If you look back at Dred Scott in 1857, Dred Scott said African Americans can never be citizens of the United States. Why can't they ever be citizens of the United States? Because even in the North, they're not getting the privileges of citizens of the United States. To be a citizen of the United States means to get certain kinds of privileges, including the privilege of being treated as an equal. So in 1857, everybody understood the massive controversy about the status of the freed population was whether they are being treated as an equal and whether they are full equal citizens. Dred Scott said because they're not being treated as full equal citizens in the North, therefore they can't be citizens at all. The 14th Amendment takes that logic and turns it on its head and actually takes the conditional claim, if you are a citizen, you have to get the privileges of citizenship, including the privilege of being treated as an equal citizenship. The 14th Amendment Privileges or Immunities Clause takes that same conditional and the 14th Amendment says that conditional is true, but we're going to turn it upside down and say, "Because you are a citizen, therefore you have to be treated as an equal." The two other clauses of the 14th Amendment, they are very important, but they are guarantees for all persons, including non-citizens. And it was a very common background assumption that it was okay to have discrimination on the basis of race against non-citizens. The naturalization laws of the United States contain racial classifications. And those classifications in fact are reaffirmed even in 1875. It's possible for somebody who has African ancestry to become a citizen, but you still have an anti-Asian racial bias against non-citizens. If the important work of the 14th Amendment is done by either of the clauses that deal with persons, it is not going to make sense of discrimination against non-citizens on a racial basis. It also is not going to make sense against very widespread seen as perfectly acceptable discrimination against non-citizens in certain rights like the ability to own land. People talked about being a citizen, the paradigmatic, the central example of what it was to be a citizen was you're the kind of person who can own land. Obviously the freedman, if they are going to be able to be first class citizens of the United States, have to be able to own land. They can't be treated as a mere subject of another country here in the country at the pleasure of the Congress. That's how non-citizens were treated. They had to be full citizens in their own right. And only the Privileges or Immunities Clause can accomplish that goal. PUBLIUS: That was a quick overview of the history of the clause. Can we back up and look at some of those episodes in more detail? What were the Slaughterhouse cases? CHRISTOPHER GREEN: Sure. So, the Slaughterhouse Cases are challenges to a slaughtering monopoly that the City of New Orleans and the State of Louisiana gave to one particular company. Essentially the rationale that the New Orleans government, the Louisiana legislature had was that all of these butchers killing animals all along the Mississippi River and then taking the carcasses, putting them into the Mississippi River all along the way, this is a health hazard. We want to centralize the butchering in one particular place, try to dispose of all these carcasses in a more orderly way, essentially the rationale that they gave was the same rationale that you have for utilities, for things like the electric company, things like the cable company, things like a railroad going and serving everybody, taking a little bit of land for this tiny strip for the general good. So, the idea that Louisiana had was, "We want to centralize butchering in one particular place." That's the story. As with lots of utilities, there is a backstory to where this came from, which is a little bit unsavory. It seems pretty clear that the company who got these exclusive privileges had been corruptly influencing members of the Louisiana legislature. So, we have some butchers who say, "Hey, I am being required to take all of these animals and go to this one particular place and pay these above-market rates, above what it would've been, to these folks for the privilege of being able to slaughter my animal at that one particular place. There were things in the statute that said it can only be a reasonable rate. But they say, "Hey, I am a butcher. I have a right to be a butcher because I am a citizen of the United States. To be a citizen in America means you can do things like be a butcher." The butcher's said, "The restriction that you're placing on me, preventing me from being a butcher in as free away as I used to be able to be, this is exactly the same kind of thing that was going on in the black codes from 1865." The black codes in 1865 in the South were an effort to keep the freedmen in just an inch above slavery. So, they said, "Well, the Thirteenth Amendment abolishes slavery, but we're going to put all kinds of restrictions about what kinds of occupations you can enter. Just because you're free doesn't mean you can engage in any occupation you like. You might be required, as an African American, to only participate in agricultural labor." So, the black codes were an effort to really lower labor costs and make it easier, even though slavery had been abolished, easier to get below-market rates for labor, for Southern landowners trying to get as much labor out of the African American population as they could for as little money as possible. They had to pay for it now because we didn't have enslavement, but they wanted to pay as little as possible. So, we have the black codes of 1865. In 1866, we have the Civil Rights Act of 1866 that gets rid of the black codes. The Fourteenth Amendment Privileges or Immunities Clause is widely seen as constitutionalizing the Civil Rights Act of 1866. The butchers in Louisiana say, "Hey, that is exactly the same thing that's happening to us. By saying that we can't be butchers the way as other people can be butchers, that's discrimination against us. We have a right to have the same privileges as all other Americans in Louisiana. We have the right to be butchers and not be subject to this monopoly." The Court says, "Well, that's not what a privilege of citizens of the United States is. The majority, Justice Miller says, "No. A privilege of citizens of the United States is something that's distinctively federal, like the right to be protected by the federal government when you're in France. So, this is 5-4 decision, the Slaughterhouse Cases. The main dissent by by Justice Stephen Field says, "Well, how should we understand the Privileges or Immunities Clause of the Fourteenth Amendment? We should see it as strongly analogous to Article IV, Section 2, Clause 1 of the original Constitution." What did that do? Article IV, Section 2, Clause 1 of the original Constitution said, "If you're the citizen of one state, you have the right to the privileges and immunities of citizens in the several states. When you're a citizen of one state and you go to another state, you have to be treated the way American citizens are treated. You can't have second class citizenship based on soil, based on what state you happen to be from." So, Article IV is a limited way of making us all American citizens. You can't have citizens of one state get lower, second-class collection of privileges when they are visiting another state. Justice Field, in his Slaughterhouse dissent, says the Fourteenth Amendment is a generalization of that same principle. What Article IV did for banning hostile and discriminating legislation against citizens of one state when they happen to be in another state, the Fourteenth Amendment Privileges or Immunities Clause does for the privileges of any citizen of the United States. It bans any hostile or discriminating legislation against those citizens whatsoever. So, according to Field, even if a citizen stays home, he's not being treated as an American, treated as a full American citizen if there's unjustified discrimination between that citizen and a fellow citizen. All similarly situated citizens of the United States have to get the same rights. That's Justice Field's interpretation. And he has three justices alongside him in 1873. It's very interesting if you look at some of the critics of a big, expansive Fourteenth Amendment. So, you look at folks like Raoul Berger in his Government by Judiciary, obviously he's attacking government by judiciary in 1977. You look at people like Justice Stephen Markman of the Michigan Supreme Court back when he was in the Reagan Administration, he wrote a book Wrong Turns on the Road to Judicial Activism. It's interesting, both of them, both Berger and Markman, when they looked at the history of the Fourteenth Amendment, they said, "Well, it really does look like Justice Stephen Field was right. The Fourteenth Amendment Privileges or Immunities Clause is a ban on hostile or discriminating legislation against citizens of the United States. It's a ban on second-class citizenship." Even though both of them did not want to have a broad, abstract guarantee in the Fourteenth Amendment that you wouldn't be quite sure what it meant, both of them conceded, looking at the history, that Justice Stephen Field was right. PUBLIUS: How did the Slaughterhouse cases change the common understanding of “privileges and immunities”? Were there other cases that also addressed this question? If so, did the rulings in those cases agree with the Slaughterhouse majority interpretation? CHRISTOPHER GREEN: Sure. So, prior to 1873, a lot of people thought the Privileges or Immunities Clause was going to be the big driver of civil rights in the United States, both in the courts and in Congress. So, people in Congress, when they talked about what became the Civil Rights Act of 1875, when they start talking about that in 1872, prior to Slaughterhouse, they are assuming that civil rights legislation is going to be based on the Privileges or Immunities Clause. When they argue a companion case to Slaughterhouse, Bradwell v. Illinois, Stephen... Matthew Hale Carpenter, the Senator from Wisconsin, when he's arguing on behalf of Myra Bradwell's right to practice law even though she's a woman, he says, "The only clause that gives African American men the right to practice any profession is the Privileges or Immunities Clause. The Slaughterhouse Cases, though, say, 'No. The right to practice a profession, to be a butcher, to be a lawyer, that's not the kind of thing the Privileges or Immunities Clause is about. They say it's only distinctively national privileges like the right to be protected by the federal government when you're in France.'" Justice Stephen Field in response said, "Well, if that's all it meant, it was a vain and idle enactment which most unnecessarily excited the people on its passage." And that is, I think, what most people think of the majority's interpretation. It can't possibly be something that small. But the official story of the Supreme Court is that, that's what the Privileges or Immunities Clause means. It's only that small. Three years after Slaughterhouse, in 1876, in a case Cruikshank v. United States, the Court makes even more that the Privileges or Immunities Clause means virtually nothing. There, in Cruikshank, the Court says that the right to keep and bear arms, the right to assemble and petition the government for redress of grievances, those are not privileges of citizens in the United States as pertains the right to petition a state government, the right to assemble in Colfax County. So, this allows Cruikshank, allows the perpetrators of the Colfax Massacre, which was a horrific incident... It actually happened the day before Slaughterhouse, April 13th 1873. In Cruikshank three years later, the Supreme Court, because of the interpretation given in the Slaughterhouse Cases, Cruikshank says the Privileges or Immunities Clause doesn't do anything at all to incorporate stuff in the Bill of Rights against the States, stuff like freedom of speech, right to keep and bear arms, right to assemble and petition. Those sorts of rights, they're like the right to be a butcher or the right to practice law. That's not the kind of thing that the Privileges or Immunities Clause is about. And that has officially been the precedent. The Court in 2010, in McDonald v. Chicago, they granted cert on a question presented, relating to the Privileges or Immunities Clause. But that Privileges or Immunities Clause claim lost 8-1. Justice Thomas was the only one to say that that claim was successful. It is interesting, in McDonald the eight who said that we should not resurrect the Privileges or Immunities Clause, they split 4-4 about whether, under Due Process, we should have incorporation of the right to keep and bear arms against the states. And the end result was that, because Justice Thomas happened to be in the middle, Justice Thomas said the due process claim fails but the Privileges or Immunities Clause succeeds. Those four on due process plus Justice Thomas on the Privileges or Immunities Clause was critical to the majority in McDonald saying that states are required to respect the right to keep and bear arms just as much as the federal government is. However, those eight said, "We don't know what the Privileges or Immunities Clause meant. We are pretty sure that the Court was wrong in 1873." But their attitude was a little bit like somebody saying, "Well, we're not going to stage a title bout. We're not going to have the defending champion defend the boxing title until we figure out who the leading contender is. And because we don't know what the leading contender of Privileges or Immunities Clause interpretation is, we're not going to decide. We just don't know what it meant." PUBLIUS: I have one final question. The full clause that we’ve been discussing refers to the “privileges or immunities of citizens of the United States.” You touched on this a little bit but why does it matter that it applies specifically to citizens? CHRISTOPHER GREEN: So, the Privileges or Immunities Clause prevents states from abridging the privileges or immunities of citizens of the United States. The key question, interpretively, it's not: what is a privilege? What is an immunity? Lots of people say, "Well, anything could be all privilege. You can make a contract between two people, establishing a privilege, establishing an immunity just between those two people." The key question isn't: what's a privilege? What's an immunity? The key question for the Fourteenth Amendment is: what's relationship that a right has to bear to citizens of the United States. According to people like Justice Field, a privilege of citizens of the United States is the kind of right that makes us Americans. What kinds of rights characterize America? According to Justice Field, things like the right to engage in an occupation. Some people say the rights that characterize America are the things in the Bill of Rights. But that's not, I think, quite the right way we should think about it. The Bill of Rights was intended as a supplement to limited federal power. We don't have anything in the Bill of Rights, for instance, preventing the federal government from making unequal labor restrictions, because the federal government doesn't have power over labor conditions. It's very clear that the original constitution left slavery in the states, in the hands of the states. Article I, Section 9, Clause 1 makes very clear: states have the right to enslave people and make that legal. The federal government doesn't have the power to regulate labor conditions. Well, if the federal government doesn't have the power to regulate labor conditions, you're not going to have anything in the Bill of Rights related to labor conditions. But in the case of the states in the Fourteenth Amendment, when we're trying to protect people's critical rights to be citizens, you've got to include labor-related rights. You've got to include the right to engage in occupations other than agriculture. Things like the right to be a lawyer, the right to be a butcher, those have to be included in what makes Americans, Americans. The kinds of rights that make us Americans are the privileges or immunities characteristic of citizens of the United States. 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 3 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. In the last podcast episode, you discussed how the 13th, 14th and 15th Amendments were ratified. In this episode, I want to take a closer look at the Amendment that we hear about the most - the 14th. Professor Green, why does the “privileges or immunities” clause of 14th Amendment matter? The main reason the Privileges or Immunities Clause is so important is because it establishes the status, citizenship, which was absolutely central to the understanding of those during reconstruction about what they were trying to achieve for the formerly enslaved population, the African American population of the South. If you look back at Dred Scott in 1857, Dred Scott said African Americans can never be citizens of the United States. Why can't they ever be citizens of the United States? Because even in the North, they're not getting the privileges of citizens of the United States. To be a citizen of the United States means to get certain kinds of privileges, including the privilege of being treated as an equal. So in 1857, everybody understood the massive controversy about the status of the freed population was whether they are being treated as an equal and whether they are full equal citizens. Dred Scott said because they're not being treated as full equal citizens in the North, therefore they can't be citizens at all. The 14th Amendment takes that logic and turns it on its head and actually takes the conditional claim, if you are a citizen, you have to get the privileges of citizenship, including the privilege of being treated as an equal citizenship. The 14th Amendment Privileges or Immunities Clause takes that same conditional and the 14th Amendment says that conditional is true, but we're going to turn it upside down and say, "Because you are a citizen, therefore you have to be treated as an equal." The two other clauses of the 14th Amendment, they are very important, but they are guarantees for all persons, including non-citizens. And it was a very common background assumption that it was okay to have discrimination on the basis of race against non-citizens. The naturalization laws of the United States contain racial classifications. And those classifications in fact are reaffirmed even in 1875. It's possible for somebody who has African ancestry to become a citizen, but you still have an anti-Asian racial bias against non-citizens. If the important work of the 14th Amendment is done by either of the clauses that deal with persons, it is not going to make sense of discrimination against non-citizens on a racial basis. It also is not going to make sense against very widespread seen as perfectly acceptable discrimination against non-citizens in certain rights like the ability to own land. People talked about being a citizen, the paradigmatic, the central example of what it was to be a citizen was you're the kind of person who can own land. Obviously the freedman, if they are going to be able to be first class citizens of the United States, have to be able to own land. They can't be treated as a mere subject of another country here in the country at the pleasure of the Congress. That's how non-citizens were treated. They had to be full citizens in their own right. And only the Privileges or Immunities Clause can accomplish that goal. That was a quick overview of the history of the clause. Can we back up and look at some of those episodes in more detail? What were the Slaughterhouse cases? Sure. So, the Slaughterhouse Cases are challenges to a slaughtering monopoly that the City of New Orleans and the State of Louisiana gave to one particular company. Essentially the rationale that the New Orleans government, the Louisiana legislature had was that all of these butchers killing animals all along the Mississippi River and then taking the carcasses, putting them into the Mississippi River all along the way, this is a health hazard. We want to centralize the butchering in one particular place, try to dispose of all these carcasses in a more orderly way, essentially the rationale that they gave was the same rationale that you have for utilities, for things like the electric company, things like the cable company, things like a railroad going and serving everybody, taking a little bit of land for this tiny strip for the general good. So, the idea that Louisiana had was, "We want to centralize butchering in one particular place." That's the story. As with lots of utilities, there is a backstory to where this came from, which is a little bit unsavory. It seems pretty clear that the company who got these exclusive privileges had been corruptly influencing members of the Louisiana legislature. So, we have some butchers who say, "Hey, I am being required to take all of these animals and go to this one particular place and pay these above-market rates, above what it would've been, to these folks for the privilege of being able to slaughter my animal at that one particular place. There were things in the statute that said it can only be a reasonable rate. But they say, "Hey, I am a butcher. I have a right to be a butcher because I am a citizen of the United States. To be a citizen in America means you can do things like be a butcher." The butcher's said, "The restriction that you're placing on me, preventing me from being a butcher in as free away as I used to be able to be, this is exactly the same kind of thing that was going on in the black codes from 1865." The black codes in 1865 in the South were an effort to keep the freedmen in just an inch above slavery. So, they said, "Well, the Thirteenth Amendment abolishes slavery, but we're going to put all kinds of restrictions about what kinds of occupations you can enter. Just because you're free doesn't mean you can engage in any occupation you like. You might be required, as an African American, to only participate in agricultural labor." So, the black codes were an effort to really lower labor costs and make it easier, even though slavery had been abolished, easier to get below-market rates for labor, for Southern landowners trying to get as much labor out of the African American population as they could for as little money as possible. They had to pay for it now because we didn't have enslavement, but they wanted to pay as little as possible. So, we have the black codes of 1865. In 1866, we have the Civil Rights Act of 1866 that gets rid of the black codes. The Fourteenth Amendment Privileges or Immunities Clause is widely seen as constitutionalizing the Civil Rights Act of 1866. The butchers in Louisiana say, "Hey, that is exactly the same thing that's happening to us. By saying that we can't be butchers the way as other people can be butchers, that's discrimination against us. We have a right to have the same privileges as all other Americans in Louisiana. We have the right to be butchers and not be subject to this monopoly." The Court says, "Well, that's not what a privilege of citizens of the United States is. The majority, Justice Miller says, "No. A privilege of citizens of the United States is something that's distinctively federal, like the right to be protected by the federal government when you're in France. So, this is 5-4 decision, the Slaughterhouse Cases. The main dissent by by Justice Stephen Field says, "Well, how should we understand the Privileges or Immunities Clause of the Fourteenth Amendment? We should see it as strongly analogous to Article IV, Section 2, Clause 1 of the original Constitution." What did that do? Article IV, Section 2, Clause 1 of the original Constitution said, "If you're the citizen of one state, you have the right to the privileges and immunities of citizens in the several states. When you're a citizen of one state and you go to another state, you have to be treated the way American citizens are treated. You can't have second class citizenship based on soil, based on what state you happen to be from." So, Article IV is a limited way of making us all American citizens. You can't have citizens of one state get lower, second-class collection of privileges when they are visiting another state. Justice Field, in his Slaughterhouse dissent, says the Fourteenth Amendment is a generalization of that same principle. What Article IV did for banning hostile and discriminating legislation against citizens of one state when they happen to be in another state, the Fourteenth Amendment Privileges or Immunities Clause does for the privileges of any citizen of the United States. It bans any hostile or discriminating legislation against those citizens whatsoever. So, according to Field, even if a citizen stays home, he's not being treated as an American, treated as a full American citizen if there's unjustified discrimination between that citizen and a fellow citizen. All similarly situated citizens of the United States have to get the same rights. That's Justice Field's interpretation. And he has three justices alongside him in 1873. It's very interesting if you look at some of the critics of a big, expansive Fourteenth Amendment. So, you look at folks like Raoul Berger in his Government by Judiciary, obviously he's attacking government by judiciary in 1977. You look at people like Justice Stephen Markman of the Michigan Supreme Court back when he was in the Reagan Administration, he wrote a book Wrong Turns on the Road to Judicial Activism. It's interesting, both of them, both Berger and Markman, when they looked at the history of the Fourteenth Amendment, they said, "Well, it really does look like Justice Stephen Field was right. The Fourteenth Amendment Privileges or Immunities Clause is a ban on hostile or discriminating legislation against citizens of the United States. It's a ban on second-class citizenship." Even though both of them did not want to have a broad, abstract guarantee in the Fourteenth Amendment that you wouldn't be quite sure what it meant, both of them conceded, looking at the history, that Justice Stephen Field was right. How did the Slaughterhouse cases change the common understanding of “privileges and immunities”? Were there other cases that also addressed this question? If so, did the rulings in those cases agree with the Slaughterhouse majority interpretation? Sure. So, prior to 1873, a lot of people thought the Privileges or Immunities Clause was going to be the big driver of civil rights in the United States, both in the courts and in Congress. So, people in Congress, when they talked about what became the Civil Rights Act of 1875, when they start talking about that in 1872, prior to Slaughterhouse, they are assuming that civil rights legislation is going to be based on the Privileges or Immunities Clause. When they argue a companion case to Slaughterhouse, Bradwell v. Illinois, Stephen... Matthew Hale Carpenter, the Senator from Wisconsin, when he's arguing on behalf of Myra Bradwell's right to practice law even though she's a woman, he says, "The only clause that gives African American men the right to practice any profession is the Privileges or Immunities Clause. The Slaughterhouse Cases, though, say, 'No. The right to practice a profession, to be a butcher, to be a lawyer, that's not the kind of thing the Privileges or Immunities Clause is about. They say it's only distinctively national privileges like the right to be protected by the federal government when you're in France.'" Justice Stephen Field in response said, "Well, if that's all it meant, it was a vain and idle enactment which most unnecessarily excited the people on its passage." And that is, I think, what most people think of the majority's interpretation. It can't possibly be something that small. But the official story of the Supreme Court is that, that's what the Privileges or Immunities Clause means. It's only that small. Three years after Slaughterhouse, in 1876, in a case Cruikshank v. United States, the Court makes even more that the Privileges or Immunities Clause means virtually nothing. There, in Cruikshank, the Court says that the right to keep and bear arms, the right to assemble and petition the government for redress of grievances, those are not privileges of citizens in the United States as pertains the right to petition a state government, the right to assemble in Colfax County. So, this allows Cruikshank, allows the perpetrators of the Colfax Massacre, which was a horrific incident... It actually happened the day before Slaughterhouse, April 13th 1873. In Cruikshank three years later, the Supreme Court, because of the interpretation given in the Slaughterhouse Cases, Cruikshank says the Privileges or Immunities Clause doesn't do anything at all to incorporate stuff in the Bill of Rights against the States, stuff like freedom of speech, right to keep and bear arms, right to assemble and petition. Those sorts of rights, they're like the right to be a butcher or the right to practice law. That's not the kind of thing that the Privileges or Immunities Clause is about. And that has officially been the precedent. The Court in 2010, in McDonald v. Chicago, they granted cert on a question presented, relating to the Privileges or Immunities Clause. But that Privileges or Immunities Clause claim lost 8-1. Justice Thomas was the only one to say that that claim was successful. It is interesting, in McDonald the eight who said that we should not resurrect the Privileges or Immunities Clause, they split 4-4 about whether, under Due Process, we should have incorporation of the right to keep and bear arms against the states. And the end result was that, because Justice Thomas happened to be in the middle, Justice Thomas said the due process claim fails but the Privileges or Immunities Clause succeeds. Those four on due process plus Justice Thomas on the Privileges or Immunities Clause was critical to the majority in McDonald saying that states are required to respect the right to keep and bear arms just as much as the federal government is. However, those eight said, "We don't know what the Privileges or Immunities Clause meant. We are pretty sure that the Court was wrong in 1873." But their attitude was a little bit like somebody saying, "Well, we're not going to stage a title bout. We're not going to have the defending champion defend the boxing title until we figure out who the leading contender is. And because we don't know what the leading contender of Privileges or Immunities Clause interpretation is, we're not going to decide. We just don't know what it meant." I have one final question. The full clause that we’ve been discussing refers to the “privileges or immunities of citizens of the United States.” You touched on this a little bit but why does it matter that it applies specifically to citizens? So, the Privileges or Immunities Clause prevents states from abridging the privileges or immunities of citizens of the United States. The key question, interpretively, it's not: what is a privilege? What is an immunity? Lots of people say, "Well, anything could be all privilege. You can make a contract between two people, establishing a privilege, establishing an immunity just between those two people." The key question isn't: what's a privilege? What's an immunity? The key question for the Fourteenth Amendment is: what's relationship that a right has to bear to citizens of the United States. According to people like Justice Field, a privilege of citizens of the United States is the kind of right that makes us Americans. What kinds of rights characterize America? According to Justice Field, things like the right to engage in an occupation. Some people say the rights that characterize America are the things in the Bill of Rights. But that's not, I think, quite the right way we should think about it. The Bill of Rights was intended as a supplement to limited federal power. We don't have anything in the Bill of Rights, for instance, preventing the federal government from making unequal labor restrictions, because the federal government doesn't have power over labor conditions. It's very clear that the original constitution left slavery in the states, in the hands of the states. Article I, Section 9, Clause 1 makes very clear: states have the right to enslave people and make that legal. The federal government doesn't have the power to regulate labor conditions. Well, if the federal government doesn't have the power to regulate labor conditions, you're not going to have anything in the Bill of Rights related to labor conditions. But in the case of the states in the Fourteenth Amendment, when we're trying to protect people's critical rights to be citizens, you've got to include labor-related rights. You've got to include the right to engage in occupations other than agriculture. Things like the right to be a lawyer, the right to be a butcher, those have to be included in what makes Americans, Americans. The kinds of rights that make us Americans are the privileges or immunities characteristic of citizens of the United States. 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!