Are economic rights and liberties among the “privileges or immunities” of citizenship protected by the Constitution’s Fourteenth Amendment? That was the simple question before the Supreme Court in the Slaughterhouse Cases, the opinion which is today almost uniformly denounced in the legal academy. Scholars of all political and interpretive commitments have come to reject Slaughterhouse as among the Court’s great mistakes; libertarian originalists have notably and forcefully agreed, arguing that the Fourteenth Amendment enshrined a libertarian theory of natural rights.

At issue in the cases was an 1869 Louisiana statute that granted a monopoly charter to a new private corporation, which was thenceforth to be the sole abattoir for the New Orleans area. Butchers would be permitted under the law to lease a stall at the facility, incorporated as the Crescent City Livestock Landing and Slaughterhouse Company, but they were forbidden to operate independently. The cases to which the title of the opinion refers were three actions challenging the validity of that statute. Many of the plaintiffs were traditional French butchers for whom the craft was an important piece of cultural heritage, a venerable tie to their ethnic roots in the Gascony region of France. They argued that the ability to practice their chosen vocation, free from the kinds of obstruction created by Louisiana’s new law, was protected by the Constitution, particularly the Fourteenth Amendment.

The case is notable as the first time that the Supreme Court considered the meaning of this newly enacted amendment, which, as one of the three Reconstruction Amendments, changed the country’s legal landscape. The Fourteenth Amendment eventually became the mechanism through which the Bill of Rights was “incorporated” and applied against the states, that is, through which the Bill of Rights came to protect American citizens not only from the actions of the federal government but also the several state governments. Among libertarians, the Slaughterhouse Cases are known (if at all) for rendering the Privileges or Immunities Clause impotent, for — paraphrasing Justice Clarence Thomas — sapping it of any meaning.

Writing for the majority, Justice Samuel Freeman Miller maintained that the Louisiana statute was an appropriate exercise of the police power and that, while stringent, its measures were not “especially odious or objectionable” to the butchers. Justice Miller noted that if the statute had given the same privileges to the city of New Orleans itself, “no question would have been raised as to its constitutionality.” He thus reasoned that the law’s creation of a separate corporate entity, licensed as the exclusive site for the landing and butchering of livestock, was among the powers reserved for Louisiana’s legislature. As former U.S. Solicitor General Paul Clement has said, “He [Justice Miller] knows what he’s doing. He knows that he’s just interpreted the Privileges or Immunities Clause down to nearly nothingness.” Clement also notes that the dissenters contemporaneously and many of today’s legal scholars argue that the decision “[reads] the Privileges or Immunities Clause out of the Constitution of the United States.”

That prevailing practices in the slaughter of animals at the time created serious public-health concerns is quite beyond dispute. Much less clear, however, is the relationship between this problem and the remedy, the monopoly established by Louisiana. As in so many economic-liberty cases today, the logical or causal connection between the regulation and the perceived health-and-safety problem to be remedied is simply taken for granted by both policymakers and courts. Because they regard government as imbued with supernatural powers, themselves requiring no explanation, its monopoly institutions are able to accomplish feats impossible to voluntary, private organizations.

The legal historian Michael Ross embodied this kind of gushing, deluded worship of coercive government power in an appearance on C-SPAN’s excellent Landmark Cases series, assuring a caller that “in New Orleans, if someone with power doesn’t act, nothing gets done…. If a legislature didn’t act, there’d still be butchers putting offal in the river by the water intake pipes.” The greed and selfishness that Ross assumes to be predominant in human nature, dictating our social interactions, leading to predation and injustice, are lifted quietly and without explanation from his assumptions about government.

It is apparently necessary, therefore, to remind Ross and the millions of others who share his ideas that government is composed of the very same vile, self-serving human beings. Just as corporate personhood is a legal fiction, so too is government itself a great fiction, merely a name we have decided to give to certain arrangements and actions. Notwithstanding any of our artifices of nomenclature, government comprises individual persons, all of whom have their own incentives, preferences, and predilections. Those facts are not miraculously suspended because we decide to call one organization a government as opposed to a corporation or any other name we give to the countless bodies of people that make up society.

Opportunities for corruption, self-dealing, and breaches of the public trust are many in institutions that we allow to spend profligately, that we exempt from competitive pressures, that we grant the power to purloin with impunity. As Henry Wilson astutely observes in his Catechism of Individualism, progressives and socialists of all stripes “propose to cure [the] evil … of big concerns,” i.e., of concentrated or monopoly power, “[by] making them bigger still — that is, handing them over to Government.” Wilson’s point goes to the fundamental flaw in resorts to the interventions of positive law as tools with which to remedy perceived social and economic problems. Even where there is not outright corruption, there are almost always negative unintended consequences. Indeed, had the Slaughterhouse Cases been decided differently, the Privileges or Immunities Clause might have been a formidable weapon in the fight against the legal oppressions of the Jim Crow-era South. Likewise, the fight for economic liberty today is largely a fight against the compelled impoverishment and marginalization of poor minority groups, black Americans in particular.

Vassalage

Libertarians have been at the forefront of decrying the Court’s opinion in the Slaughterhouse Cases. For example, Randy Barnett argues that the Privileges or Immunities Clause, its original meaning properly heeded, protects a practically limitless universe of individual rights, the natural rights that we libertarians defend and hold dear. He criticizes the Slaughterhouse decision for eviscerating the Clause, for what he argues was a desertion of its original meaning. Constitutional law professor Kurt Lash has notably countered these arguments, defending the Court’s opinion in Slaughterhouse and reading the Privileges or Immunities Clause to protect only “enumerated constitutional rights” — rights appurtenant to citizenship in the United States. The Privileges or Immunities Clause of the Fourteenth Amendment, Lash urges, is not to be conflated in its meaning or operation with the language of the Constitution’s Comity Clause (also known as the Privileges and Immunities Clause), a piece of Article IV that entitles the citizens of all states “to all privileges and immunities of citizens in the several states.” While the language is similar enough, Lash contends that the broad, though not unlimited, protections afforded by the Comity Clause are not the same as those contemplated by the Privileges or Immunities Clause. But Lash is among the few who stand by the Court’s Slaughterhouse opinion. A host of legal scholars and constitutional lawyers have long argued that the Privileges or Immunities Clause, not the Due Process Clause, is the proper means through which to incorporate the guarantees of the Bill of Rights against the states. Indeed, Lash suggests that this is a position now held by a majority in the legal academy.

Libertarian originalists such as Barnett have pointed to the Slaughterhouse dissents as better understanding the Privileges or Immunities Clause. In the longest of three dissenting opinions, Justice Stephen Field writes, reminding of the age-old conflict between what is right and what is legal, “No one will deny the abstract justice which lies in the position of the plaintiffs.” The arguments of his dissent take no exception to legitimate exercises of a state’s police power, but distinguish uses of that power as pretenses under which the government has a free hand to abridge the rights of citizens. He observes that any legitimate health-and-safety goals were duly accomplished by the law’s provisions dictating that all slaughter take place downriver from New Orleans and that all animals be inspected. In contrast, Justice Field avers that “the health of the city is in no way promoted” by the statute’s grant of special monopoly privileges.

The “right to pursue a lawful and necessary calling,” he concludes, is among those protected by the Fourteenth Amendment. Because Field believes that the Fourteenth Amendment suffices to protect the rights of the plaintiffs, he declines to decide whether the Louisiana law also conflicts with the Thirteenth Amendment’s prohibition of slavery and involuntary servitude, though he suggests that it does. Field sees the latent danger in the Court’s opinion — that involuntary servitude might be reestablished not as chattel slavery on the basis of race, but as a modern form of vassalage under which citizens must pay tribute to privileged political favorites in order to work in their chosen occupation. In the almost century and a half since the Slaughterhouse Cases, Justice Field’s dissenting opinion has been vindicated, its warnings seeming to foreknow the economic system of the present day, rife with licenses, privileges, and regulations.

Presented with the new originalist interpretation of the Slaughterhouse Cases, one’s libertarian spirit rejoices at the same time as his instruction in law and history assure him that its convenient theories are too good to be true. It is remarkable that the original public meaning of the Constitution is indeed so obvious in its institution of high libertarian principles that only thoroughgoing libertarians have noticed. More plausibly (if depressingly), most of the public-policy tyrannies to which libertarians object, including the Louisiana law considered in Slaughterhouse, are quite within constitutional bounds. A “justice-based theory of constitutional legitimacy,” such as that defended by Barnett and others, must fail on its own terms, for even those libertarians concede that the Constitution permits actions by the federal government that are patently unjust under a libertarian natural-rights framework. Looked upon charitably, in the most forgiving light, the Constitution is perhaps suggestive of libertarianism, like the Magna Carta or the Declaration of Independence, a necessary, incremental step in the direction of individual rights and minimal government. And the originalists’ robust judiciary finds little support in the historical record. In Federalist No. 78, Alexander Hamilton writes that the judiciary, “[having] neither force nor will, but merely judgment,” is “incontestably … the weakest of the three departments of power.”

The Constitution empowers the legislative branch of the federal government — and those of the several states — to do a great many things that are objectionable to libertarians. Libertarians must therefore emphasize education, understanding that for liberty to obtain in the nation and in the world, people must comprehend and desire it. Liberty cannot be endowed from on high, with the Supreme Court as a judicial Sinai, sapiently guarding the freedoms of the American people against the vagaries of democratic overreach.

It is, moreover, naive to think that the judicial branch should desire the position that the new originalists would have it assume. The achievement of the results that libertarians desire requires both widespread understanding of the importance of freedom and mechanisms that properly channel incentives. It is not enough to simply assert, in the face of mountains of evidence to the contrary, that a Constitution creating a powerful, centralized national government was actually meant to institute a version of natural-rights libertarianism. Libertarians can fight for liberty — and celebrate cases that shelter it — without resorting to wishful thinking about the founding documents or the Framers themselves. Indeed, to make progress in the direction of a free society, we must avoid romanticized versions of the nation’s history and laws; we must have a grounded and sophisticated understanding of them — including the Constitution. The Supreme Court’s decision in the Slaughterhouse Cases was undoubtedly a miscarriage of justice from a libertarian standpoint. But it may have been quite right constitutionally.

This article was originally published in the June 2016 edition of Future of Freedom.