There's a story about a white unionist in the south,
who's support for newly freed blacks angers his neighbors.
They come over one night and basically tell him to shut up.
When he refuses they take him outside, tie him to a
tree and horsewhip him and they tell him
That if they have to come back they're gonna
hang him from that same tree.
But the man had nowhere to turn because the south at
this time was a place of lawless tyranny.
The 14th amendment was designed to stamp out that tyranny
By requiring government officials to respect the basic civil rights of all Americans.
The period following the civil war was marked
by shocking abuses of individual rights
And by a constitutional amendment, the 14th amendment, designed to halt those abuses.
The seeds of those events were contained in our
founding documents, including the Declaration of Independence.
The declaration of independence was a promise of limited government
Based on individual rights and the ideals of the enlightenment.
And the story of the American Consitution and especially the 14th amendment
Is really the story of our trying to live up to that promise.
Of course, the lofty ideals in the Declaration of
Independence and the Constitution cannot be reconciled
With the abomination of slavery. The tacit approval of which set
us on a path to disaster from day one.
The constitution's failure to resolve the question of slavery gave
rise to a furious national debate.
Some people, like senator John Calhoun, argued that the Constitution's references to slavery
amounted to a tacit endorsement.
Others, like the radical legal scholar, Lysander Spooner, argued exactly the opposite
That the Constitution presumed all men were free making slavery impossible.
So in public, there were two sides: The
anti-slavery camp. arguing that the Constitution
Presupposed that people were free and that this was totally
irreconcilable with the idea of slavery.
And you had the pro-slavery camp. arguing almost exactly the opposite
Unfortunately, in the courts, the pro-slavery side won
an almost unbroken series of victories.
For example, anti-slavery activists had argued that the
bill of rights automatically bound the states
But the supreme court rejected that position in
a case called Baron v Baltimore.
Holding that the bill of rights only affected the federal government.
Later on in a case called Dred Scott v Sanford
the court in an opinion by Chief Justice
Roger Taney, not only rejected the anti-slavery position
that the privileges and immunities clause in
Article 4 protected individual rights but actually went so far
as to hold that the black man
had no rights, that "The white man was bound to respect."
Over the course of the debates about slavery in America
what you really see is a movement
That started out as an anti-slavery movement, really
changed into a movement much more
Radical and much more broadly devoted to the
protection of natural rights ranging from
Free speech to the right to control one's own labor.
Part of that is due to the influence of
Intellectuals, like Lysander Spooner, or Joel Tiffany but part of
that is just a reaction to the
Horrible abuses of natural rights that abolitionists saw in the pre-war south and
Immediately after the civil war. In the aftermath of
the civil war newly freed blacks
Were systematically terrorized, disarmed and even lynched for asserting their right
to equality and individual liberty.
The stories of violence perpetrated against newly freed blacks are truly horrifying.
For example, Robert Church, a black entrepreneur in Memphis Tennessee
Actually one of the first major black entrepreneurs anywhere in the reconstruction south
Owned a saloon and several other businesses around Memphis. He was wildly successful
He was beloved by the community and in
1866 an angry mob of white people,
Largely led by members of the local police force, broke into his saloon,
Dragged him into the street, shot him and
left him for dead, all because
He was in a business they thought a
black man shouldn't be in.
By the time congress convened in 1866 anti-slavery republicans dominated both houses
Led by men, like John Bingham in the
house, along with senators Charles Sumner and
and Jacob Howard radical republicans enjoyed complete control of congress
They have the power to amend the constitution and
they are determined to use it.
They were faced with an unending series of abuses in the reconstruction south
State and local governments had responded to the
new 13th amendment ban on slavery
By trying to deprive newly freed slaves and
their white supporters of any needful freedom
Especially economic freedom.
Economic liberty, the right to pursue a livelihood of your
own choosing and to keep the money you
Earn was the opposite of slavery and the real opportunity for freed slaves
To lead a free life. The pro slavery forces knew this,
so in the south freed slaves weren't just banned
From pursuing particular occupations but in some places it
was actually illegal for black people
To leave their employer's property without written permission.
In others, breaking a labor contract was punished by
whipping. The 14th amendment was
Supposed to stop rights violations like these.
One of the rights most frequently mentioned in
connection with the 14th amendment was
The right to keep and bear arms. Congress was
well aware of the fact that newly freed
Blacks and White Union soldiers were being systematically disarmed throughout the south
In order to subjugate and terrorize them. For
example, Congress heard testimony about a
Town in Kentucky where the town Marshal was "Very prompt
to take arms away from all of the
returning black soldiers and to shoot them whenever the opportunity arose."
The 14th amendment was proposed in response to this wholesale violation
Of civil rights as embodied, for example, in the notorious black codes.
The architect of the 14th amendment, John Bingham, was
a learned and well respected lawyer
Bingham actually appears to have been one of the
few members of Congress who understood
That by virtue of the supreme court's decision in Barron v Baltimore,
The bill of rights did not apply directly against the states. In fact,
Bingham had to bring a copy of Baron onto the floor
of the house to prove that the bill of rights
Had no affect against the states. John Bingham
believed there was a hole in the
Original constitution, which was that it didn't give the
federal government the power to protect
individual rights from interference by the states.
The fourteenth amendment was Bingham's effort to fix that.
The 14th amendment protects three distinct interests: due process, equal protection, and
the privileges or immunities,
Meaning rights, of United States Citizens. Of those three, privileges or immunities
Are, by far, the most important because that clause protects individual rights from
In 1872, the Supreme Court had its first opportunity
to interpret the privileges or immunities clause.
In a case called Slaughterhouse. Handed down in 1873, the Slaughterhouse cases
Essentially read the privileges or immunities clause right out of the 14th amendment
In the Slaughterhouse cases justice Samuel Miller, writing for
a bear majority of the court
Held that the privileges or immunities clause protected only
a limited and relatively trivial set
Of, so called, rights of national citizenship, such as
the right to access navigable waterways
And federal sub treasuries and to invoke the protection of the
federal government when on the high seas.
This was an utterly absurd reading of the privileges or immunities clause.
No one thinks we fought a civil war and amended the constitution
Because someone, somewhere had difficulty accessing a sub treasury
And no one thinks that today. There is virtually unanimous agreement
Among constitutional scholars that the Slaughterhouse majority's interpretation
Of the privileges or immunities clause is completely indefensible.
Taking their cue from the supreme court's refusal
to enforce the 14th amendment consistent
With its text, purpose and history the states
responded by expanding the existing black
Codes into the formal caste system of Jim Crowe.
Blacks and Whites alike were subject to a
Host of regulations designed to prevent newly freed
blacks, or Freedmen as they were
Called, from becoming economically self sufficient members of society. This unrelenting
Assault on liberty finally forced the supreme court
to reconsider its understanding of the
14th amendment. Having effectively eliminated the privileges or immunities clause as a
Meaningful part of the constitution the court eventually began protecting individual rights
Through a doctrine called substantive due process. That
has a historical pedigree that dates
Back to the Magna Carta, that the supreme court's use
of substantive due process to do a job
For which the privileges or immunities clause was
designed has resulted in a patchwork
And incomplete juries-prudence of liberty. Some rights the 14th amendment was supposed
To protect, like freedom of speech, ended up
protected anyway, but others like economic
Liberty, or the right to own a gun
just got ignored and waived away.
On any fair reading there is not the slightest
doubt that the 14th amendment protects an
Individual right to own a gun for self defense. So
why did it take the supreme court nearly
150 years to recognize that right and then by a
margin of only one vote? The second
Amendment says, "The right of the people to keep and
bare arms shall not be infringed."
Despite that clear language, it took a carefully planned public interest lawsuit, which I
Helped design and litigate, District of Columbia v
Heller, to finally persuade the Supreme Court
To interpret the second amendment as protecting an
individual right to own a gun.
But because the District of Columbia is a federal
jurisdiction, to which the bill of rights
Applies directly, Heller left open the question of
whether the 14th amendment protects the
Right to own a gun from interference by state and
local officials and if so, how?
That was the question the supreme court took up two
years later in McDonald v City of Chicago.
Faced with this question in McDonald the supreme court split into three caps.
Four of the justices wanted to use the traditional substantive due process method
To find that the right to keep and bare
arms was fundamental and should therefore
Be applied against the states. Another group of four
justices wanted to use substantive due process
To say that the right to keep and bear arms
was not fundamental and therefore shouldn't apply.
The deciding fifth vote fell to justice, Clarence Thomas.
Justice Thomas makes such a powerful case for the
privileges or immunities clause in his
McDonald concurrence that none of the other justices
in the plurality or the descent
challenge his reading of the relevant history or his conclusion
that the right to own a gun
is a privilege or immunity of American citizenship.
The 14th amendment, and especially the privileges or immunities clause was a really
Radical change to the constitution. It was supposed
to give the federal government and
Especially the federal courts, the power to protect rights that had been historically
Trampled by state and local governments. One of these
fundamental rights was the right to
Earn an honest living, but for its entire existence
the privileges or immunities clause has
Been a dead letter. McDonald starts to change that.
In the wake of McDonald, the privileges or immunities
clause is relevant, is alive in ways
It simply hasn't been since it was adopted. And
in coming years as law students sit down
To read the different opinions of McDonald, it's going
to become clear that only one of
Those opinions really tries to grapple with
the constitutional history, really tries to
grapple with the role the 14th amendment plays
in our constitutional structure and that's
going to make an enormous difference.
The 14th amendment was a promise. It was a promise
to the people of this country of
Limited government and respect for individual rights.
But that promise was broken almost
Immediately by the supreme court's redaction of the privileges or immunities clause from
The fourteenth amendment. The institute for Justice has
been working for twenty years to
Restore the privileges or immunities clause, to restore
the concept of individual liberty to
Its proper place in the constitution and its proper place in our society.