Waiting on My Rights

I’m reading 100 Supreme Court Cases Everyone Should Know, and was surprised by Barron v Baltimore (1833), which determined that the Bill of Rights doesn’t actually restrict the states. Textually, the ruling seems to be sound as the First Amendment begins, “Congress shall make no law…,” and other parts of the Constitution call out the states explicitly when they are intended (e.g. Article 1, Section 10). This meant that my state can tyrannize me in all kinds of ways I thought it couldn’t!

I got to post-Civil War cases, and thought I finally had my rights. The crucible of the war and the Radical Republicans that came out of it, enacted the 14th Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

A direct rebuke of Barron at last! And this is an amendment, so SCOTUS can’t say it’s unconstitutional. It’s part of the Constitution. (Ironically, The 14th was largely ratified without the help of southern states. So maybe gun 2nd Amendment gun rights didn’t mean so much to them, at least back then vis-a-vis their own state?)

Plot twist! In the Slaughter-House Cases of 1873 SCOTUS determined that the Privileges and Immunities Clause of the 14th Amendment only refers to rights that “owe their existence to the Federal government, its National character, its Constitution, or its laws.” That amounts to a piddling list of almost useless rights, like access to state seaports and navigable waters of the United States.

And, woe! In United States v. Cruikshank (1875) SCOTUS determined that Barron is still good law, meaning the Bill of Rights still doesn’t do much for me because the “privileges or immunities” of the 14th Amendment doesn’t refer to the Bill of Rights. My state can still tyrannize me!

And for many blacks, workers, and women it did. This decision (along with Civil Rights Cases (1883) and Plessy v. Ferguson (1896) enabled Jim Crow. By a 5-4 margin, the Slaughter-House ruling determined that “privileges or immunities” does not protect the right of workers to practice their trade, and Bradwell v. Illinois (1873) reaffirmed this for women by an 8-1 margin. The three additional justices that ruled against Bradwell had to invent sexist reasons for women’s labor to be treated differently.

There is some reason for the narrow reading of “privileges or immunities” in Cruikshank, namely the deeper structure of federalism under which our nation is founded: Congress gets to do what the Constitution says it can; everything else is for the states. The 10th Amendment says this well. Indeed, this is why so many Southern states were slow to ratify the 14th Amendment or rejected it. They were afraid of federal government overreach.

But (jiu jitsu move!) that’s more reason for SCOTUS to interpret “privileges or immunities” broadly. The 14th Amendment was meant to alter that structure of federalism, even to the extent of giving Congress enforcement power to guarantee citizens their rights and prevent state tyranny (Section 5). Sadly SCOTUS has never acknowledged this, and Cruikshank is still good law.

Rather SCOTUS has relied upon an expansive interpretation of the 14th Amendment’s “equal protection of the laws” to give me my rights. I have not yet read far enough to know how, but I anticipate that it will be delightfully tortured reading. Call me a cynic, but after reading a bevy of racist, sexist, and anti-worker cases from before and after the Civil War, I have reason to be.

It’s strange that many people talk about preserving their rights and freedoms, and I’m still unsure about how I got them in the first place.