Inside the Classroom: The 13th and 14th Amendments

BERTRALL ROSS: So today we're going to shift gears entirely from our focus on separation of powers and federalism, which has been at the heart of discussions for the past seven weeks or six weeks to a focus on individual rights. And today I'm going to start with providing you with a bit of a history behind the Reconstruction Amendments.

As part of that history, we will engage the case of Dred Scott, one of the most notorious of the Supreme Court cases. And then we'll move through the Reconstruction Amendments and describe what they are and what they are supposed to do. And then we'll see how the court has interpreted these Reconstruction Amendments starting with the Slaughter-House cases that was decided immediately after the passage of the Reconstruction Amendments or in the period soon thereafter.

Now, for today's class, we're only going to have one person on call. And you're like, whoa, that's rough. The only reason why we're doing that is we don't have a lot of back and forth in dialogue. I'll do a little bit more lecturing today as I introduce the background of these amendments. But there will be some questions that I seek to engage on Dred Scott and the Slaughter-House cases.

So as we discussed earlier in the class, the Federalist proponents of the Constitution argued that the system of separation of powers and federalism would be enough to protect individual liberty from governmental tyranny. But the anti-federalists, opponents of the Constitution, disagreed, and they demanded a Constitution that explicitly protects rights.

To secure the necessary support for the passage and ratification of the Constitution, the Federalists acquiesce to the anti-federalist request and incorporate it into the Constitution a Bill of Rights. Now, the Bill of Rights consists of the first 10 amendments with the first nine amendments saying something explicitly about rights. Those rights that are protected under the first nine amendments include the freedom of speech, the freedom of association, the freedom to be free from search and seizures-- the unreasonable searches and seizures.

The right to bear arms, which we have studied in this class. The protection against double jeopardy. The provision of due process. Protection against the taking of property without proper process. The right to an impartial jury in criminal prosecutions. The right to trial by jury in civil suits. And a prohibition on cruel and unusual punishment. Now, of course, I'm skipping over a few, but that's the general gist of what the Bill of Rights provides.

Now, entire classes are devoted to the constitutional doctrine established for adjudicating the rights claims found in the Bill of Rights. But the second half of this class is devoted to a second major period of Constitution rights making and protection, and that period is the reconstruction period after the Civil War. Now, there's simply no way to sufficiently emphasize the importance of the Reconstruction Amendments to the Constitution and to American history.

The Reconstruction Amendments include the 13th Amendment which abolished slavery and involuntary servitude. And at the time that the 13th Amendment was ratified, there were 4 million African-Americans being held in bondage. The Amendment secured their freedom through the abolition of slavery.

The 14th Amendment established national citizens rights for persons born or naturalized in the United States and also prohibited the abridgement of privileges and immunities, prohibited the deprivation of a person's liberty, or property without due process, and prohibited the denying to a person of equal protection of the laws.

And finally, the 15th Amendment prohibits the denial or abridgment of the right to vote on account of race. Now, what made these amendments so transformative was not merely the rights that were protected. Some rights such as equal protection and due process were said to be already embedded within the first eight or nine constitutional amendments. But what made these particular provisions so transformational is that they apply to the states.

Now, it was understood at the time of the ratification of the Constitution that the first nine amendments in the Bill of Rights would only apply to the federal government and to Congress in particular. And what changed with these amendments was a focus on states. The 14th Amendment begins with no state shall, indicating a focus on states and the protection of rights of individuals against state infringement by state governments.

So you see with respect to these Reconstruction Amendments a transformation in the relationship between the state and the federal government. A relationship that is built on autonomy and dual sovereignty became a little bit more intertwined. It became a little bit perhaps more hierarchical in the sense that the federal Constitution placed restrictions on what states can do insofar as infringement on individual rights.

And this transformation between federal and state governments also had implications for broader disputes around federalism. Now, we focus on some of those disputes regarding federalism with respect to the court's interpretation of the Commerce Clause, Taxing and Spending Clause.

And we see the court interpreting those clauses to allow the federal government to exercise broader power over time, at least until the more recent period, which again set up a relationship between the state and federal government in which the federal government exercised perhaps more power than was originally conceived in the original Constitution.

Now, the rights protected under the 13th and 14th Amendment are still somewhat ambiguous on certain matters. One of the ambiguities goes to the question of whether the 14th Amendment, in particular, incorporates the Bill of Rights and applies the Bill of Rights to the states. Now, what does it mean to incorporate?

Well, it means that within the provisions of the 14th Amendment, do the provisions such as privileges or immunities of citizens or liberty under the Due Process Clause also include those rights that are protected under the first nine amendments?

And if these rights that are protected under the first nine amendments are in fact incorporated into the 14th Amendment through privileges or immunities or liberty under due process, it would mean that the state is prohibited from infringing on those rights as well as the rights that are explicitly contained in the 13th, 14th, and 15th Amendment.

Now, there's evidence from the actual discussion in the debates during the Reconstruction Amendment congresses that the authors of those amendments intended for the Bill of Rights to apply to the states and limit what states can do with respect to the infringement of rights.

But, ultimately, that question would turn to the court's interpretation of the Reconstruction Amendments. And we'll see later in this class that the court ultimately rejected that interpretation that the Privileges and Immunities Clause incorporated the Bill of Rights and applied those fundamental rights to the states.

But before we engage in those questions about what the Reconstruction Amendments mean, I want to take you back to the history of the amendments and what led ultimately led up to the Reconstruction Amendments that followed. Now, in the Slaughter-House cases-- we'll read soon enough or discuss soon enough-- Justice Miller identified the real causes of the Civil War.

It was neither a war of northern aggression as some Southerners argued or a war for the sole reason of keeping the union together as some Northerners, including at one point Abraham Lincoln suggested. Instead as Justice Miller explained, whatever auxiliary causes may have contributed to bringing about this war, undoubtedly, the overshadowing and efficient cause was African slavery.

Much of the problem of slavery can be traced to the Constitution itself which gave some textual protection to the institution. The 3/5 Clause gave slave states far more political power than they should have had. Now, people often fixate on the fact that in the claw slaves are counted as partial persons. But what had greater implications was the fact that slaves were counted at all.

Since they were treated as property, had no agency, and couldn't vote, counting slaves only increased the voting power of slaveholders. The slaveholding states were, therefore, given representation in the House of Representatives that far exceeded their white populations. And when combined with the Senate's equal representation of the states, the democratic distortions of Congress served to preserve the institution of slavery for longer than it should have been.

In addition to the 3/5 Clause, the Constitution under Article I, Section 9 prevented Congress from outlawing the importation of slavery for a certain period of time. It was made one of two unamendable portions of the Constitution-- provisions in the Constitution. In 1808, the prohibition on the importation of slavery finally went into effect, but that had the unfortunate effect of contributing to more dehumanizing treatment of the slaves already here, including practices such as the forced breeding to maintain and increase the slave population.

And finally, there is the Fugitive Slave Clause in Article IV section 2. And this clause represented a principal source of tension between the free states of the North and the slaveholding states of the South. The Fugitive Slave Clause contained in Article IV Section 2 requires that slaves that escape to another state be returned to the owner in the state from which that slave escaped.

Many states in the North pass laws to frustrate the clause, for example, by saying that no one could use force in the removal of persons from a free state to return it to a slave state. The Supreme Court ultimately struck down such laws and one such law in the case of Prigg v Pennsylvania. And what followed were incidents of slave catchers grabbing slaves and even taking free Blacks to the South through violent means. And these tactics led to a social uproar and even violence in response.

One famous incident occurred in Boston. Anthony Burns was a 19-year-old slave from Virginia who escaped to Boston. After some time in Boston, he was identified and captured by one of the slave catchers. Bostonians led by abolitionists rallied in opposition to his return to Virginia, but the federal government ordered Burns' return pursuant to the Fugitive Slave Act, which was a federal law enforcing the Fugitive Slave Clause.

The federal government's order further galvanized the abolitionists. The abolitionists stormed the jail and tried to free him, but they failed. Lawyers hired by abolitionists and working pro bono brought motions and presented arguments during a trial but to no avail. Others tried to buy him from his Virginia owner, Charles Suttles.

One abolitionist group offered to pay Suttles $1,200 for Burns, which is about $40,000 in today's dollars. But his owner, Charles Suttle, refused to sell Burns to any abolitionist seeking him. As Burns was marched to the boat that carried him back to Virginia, 50,000 people lined the streets. There is no further recourse, and there would be no more rescue attempts.

Burns spent the next four months chained in one of the Richmond slave jails, an ordeal that left him permanently crippled and in ill health. Suttles then sold Burns to a slave catcher for $905-- almost $300 less than what the abolitionists were willing to pay, a transaction that paradoxically gave Burns a chance for freedom.

The activists seeking to buy his freedom never gave up. A group of African-Americans in Boston acting through their Baptist minister offered $1,300 to the slave trader for Burns' freedom. The slave trader accepted the offer, and Burns was taken to the free state of Ohio, where he eventually attended Oberlin College.

Later he spent time in Maine in Canada before dying on July 17, 1862, less than six months before President Abraham Lincoln issued the Emancipation Proclamation, which declared that all persons held as slaves within the rebellious slaves are and hence forward to be free.

The forcible return of Burns to the condition of slavery helped turn Massachusetts into an actively abolitionist state. It contributed to the emerging view in the North that it was simply impossible to allow slavery to continue in the South that it inevitably dirtied the hands of the entire country. Everything else in the decades leading up to the Civil War turned back to the issue of slavery.

State rights, expansion of the country westward came back to slavery. And Congress did almost everything it could to accommodate slavery where existed without sacrificing the Union. One attempt to preserve the Union in the face of the divisiveness caused by slavery was the Missouri Compromise. Under this compromise, Missouri was admitted as a slave state.

However, under the compromise slavery could not exist in any newly acquired states north of the 36 degree 30-minute parallel line, which is the southern border of Missouri. Southerners seeking to spread slavery after the Missouri Compromise looked further south. They initiated campaigns to overthrow the government in Cuba to establish slavery there. They did the same exercise to try to influence things in Central America as well to spread slavery there. But those efforts ultimately failed.

And as opportunities for Southern expansion proved limited, the Missouri Compromise proved unsatisfactory to Southerners who wanted to take the slaves with them to other territories. Southern opposition to the Missouri Compromise ultimately led to a new compromise, the Compromise of 1850 which permitted slavery if territories voted to allow it.

This was the popular sovereignty rationale for slavery championed by folks like former Illinois Senator Stephen Douglas in a series of debates with future President Abraham Lincoln for a seat in the United States Senate. Popular sovereignty with respect to slavery led pro and anti-slavery forces to deploy as many people to the new territories as possible. And the result was violent conflicts and shadow governments.

The most violent of those conflicts occurred in Kansas in the 1850s. The conflict referred to as Bleeding Kansas involved John Brown, an anti-slavery advocate who led violent attacks on pro-slavery forces. One such attack came to be known as the Massacre at Potawatomi Creek. Setting out after dark with seven others and calling himself the Army of the North, John Brown entered the pro-slavery town of Potawatomi Creek.

Armed with rifles, knives, and broadswords, Brown and his band stormed the houses of his enemies. One by one Brown's group dragged out helpless victims and hacked at their heads with broadswords. In one encounter, John Brown's men even kill two sons of an individual that they saw. Before the night was over five victims lay brutally slain at the hands of John Brown's group.

This led to Southern outrage and guerrilla warfare in Kansas and other territories. And this is where things stood in the mid 1850s. The question of the time was not merely, was slavery right but whether the federal government had any power to do anything about it one way or the other? The Southern states said the federal government could do nothing at all to limit slavery, and, in fact, the federal government had an obligation to protect slavery where it existed.

Northerners like Abraham Lincoln argued that under the Constitution, the federal government could prevent slavery from spreading and hopefully choke it off. But even he acknowledged at the time that the federal government couldn't eradicate slavery in the South directly.

It's important to note that Lincoln, who we see now as the president who ended slavery with the Emancipation Proclamation, originally only wanted to prevent slavery from spreading and agreed that it should be protected where it existed. Lincoln thought that the Constitution simply gave the federal government no power to eradicate slavery.

In contrast to Lincoln's close adherence to the Constitution, the abolitionists had a much more complicated relationship with the document. Some of the more radical people like William Lloyd Garrison famously described the Constitution as "a covenant with death and an agreement with hell." Ralph Waldo Emerson said, "ask not, is it constitutional. Ask, is it right?" And Henry David Thoreau urged civil disobedience to unjust laws.

So then it comes along in the case of Dred Scott, which everyone knew at the time would be a big case. The courts both federal and state had mostly protected slavery as an institution throughout this period. The Supreme Court at the time of the Dred Scott case was dominated by Southerners led by Justice Roger B. Taney.

The question, therefore, was not really whether the Supreme Court would protect the institution of slavery-- most people predicted that it certainly would-- but what would it say in the institution's defense? Justice Taney thought that this case provided an opportunity to end the controversy surrounding slavery once and for all in favor of slavery.

Taney's announcement of his opinion and judgment of the court was timed perfectly and in coordination with the inauguration of President James Buchanan in March 1857. In his inaugural address, Buchanan knowing that Taney was about to issue his opinion said that surely, the Supreme Court would settle the matter once and for all. Two days later on March 16 the court handed down its decision that would prove Buchanan to be something less than prescient. So Kirk, I'll turn to you as we go to turn to the Dred Scott case.

Now, Dred Scott was a slave belonging to Dr. John Emerson, a surgeon in the Army. In 1834, Emerson took Scott from Missouri to his army post in Rock Island, Illinois and held him there as a slave until May of 1836. Emerson then took Scott to Fort Snelling in the territory then known as Upper Louisiana, which is current day Minnesota, where slavery was banned by the Missouri Compromise.

That same year, Dred Scott and Harriet Scott married with the consent of Emerson who then claimed to be their master and owner. The Scotts then proceeded to have two daughters while in Upper Louisiana. In 1838, Emerson took the Scotts and their daughters from Fort Snelling, free territory, to Missouri, a slave state. Dred Scott thereafter sued for his freedom in federal court under diversity of citizenship jurisdiction. He argues that his time in Illinois made him free.

Now Dred Scott is pictured here in this book by Don Fehrenbacher on The Dred Scott Case-- it's an extraordinary book. It's 800 pages, something after my own heart. The thicker the better, right? Perfect beach reading when you're going to a trip to the Dominican Republic as I was in graduate school. I was just immersed in the book. I forgot that there are waves all around me.

What it tells is a compelling story, an account of the case. And you can sort really start to recognize and realize the horrors of slavery and the difficulties and the challenges that the Scott family went through. It also elaborates quite expansively on the case, providing background and what led up to the ultimate Supreme Court decision.

And so if there's a case I would recommend from Con law, it wouldn't be from the famous theorists of Con law, although, they have very interesting things to say, but rather this book on the Dred Scott. Case so Dred Scott brings this case under a diversity of citizenship jurisdiction. And as we know from our civil procedure class-- we remember this fondly or maybe not-- that Article III section 2 of the Constitution gives the federal courts jurisdiction over controversies between citizens of the different states.

The central question in Dred Scott is whether plaintiff Scott is entitled to sue as a citizen in the Court of the United States. So Kirk, what does the court say is Scott's state of citizenship?

AUDIENCE: The court says that based on-- they surveyed the entire history of how African-Americans were treated and viewed or what they purport to be the history, not the actual history of how African-Americans were viewed at the time of ratification and came to the conclusion that African-Americans and Black people in the United States could not be viewed as citizens because that was not what the framers intended. And along those lines that because they couldn't be citizens of the United States, they, therefore, couldn't be state citizens. So they couldn't sue under diversity jurisdiction.

That's right. So if you're analyzing this case, diversity of citizenship jurisdiction, it seems innocuous when you're learning about civil procedure. But when you think about it as applied to the Dred Scott case, it is a claim on the dignity and the humanity of millions of people in the United States. And the Declaration here with respect to diversity of citizenship jurisdiction is that Scott cannot bring a claim under this form of jurisdiction because Scott is not a citizen. He has no state citizenship.

He has no state citizenship because he's not a citizen of the United States. Why not? Well, Taney explains that Blacks were not included and were not intended to be included under the word citizens in the Constitution, and can, therefore, claim none of the rights and privileges which that instrument provides and secures for citizens of the United States.

On the contrary, Taney continues, "Blacks were at that time considered a subordinate and inferior class of beings who had been subjugated by the dominant race, and whether emancipated or not had no rights or privileges but such as those who held power might choose to grant them."

Taney further explained, "It is true every person and every class and description of persons, who were at that time of the adoption of the Constitution recognized as citizens in the several states became also citizens of the new political body but none other. It was formed by them and for them and their posterity but for no one else."

In other words, this was a white man's government. A government by the white man, for the white man, of the White man. And any claim to citizenship by the African-American race had no standing in the eyes of justice Taney. He saw African-Americans not merely as non-citizens but not even really truly human beings.

Instead, they are something less, forms of property that didn't have rights protected under the Constitution. Finally, Taney concluded, "And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace only those who were then members of the several state communities, or who should afterwards by birthright or otherwise become members according to provisions of the Constitution and the principles on which it was founded."

Now, it's important to really absorb these statements and the opinion because it reflects a view held by many towards African-Americans at the time. These racist pronouncements came from a Supreme Court that we so venerate right now. It's important to have a realistic view of how Justices on this country's highest courts once construed the Constitution as an exclusionary document.

Just as Taney's construction of racial hierarchy for America very much is in tension with the Declaration of Independence, though. Declaration of Independence famously says, "We hold these truths to be self-evident that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among them is life, liberty, and the pursuit of happiness."

All men are created equal. There are no exceptions here. Of course, as long as you assume women are appendages of men, which many Americans then assumed. But Kirk, how does Justice Taney respond to this language in the Declaration of Independence.

AUDIENCE: He said that it can't be held to mean at that time what it was-- well, I guess, the better way to say it would be that you can't import the modern view, which modern at that time 1857, that you can't go back and apply how they currently may have viewed those words to Declaration of Independence 1776.

So he basically says that the language can't be backdated and that at the time they understood it to exclude African-Americans, so that was what it meant. And he said something kind of-- I mean, the entire thing is abhorrent. But one of them that was extra wild was he said that they were amazing men that were incapable of asserting principles inconsistent with those on which they were acting, so they couldn't have possibly have meant that to include African-Americans with these words.

ROSS: Right. So Taney says this language must be eliminated its application to white men. Because if it wasn't, as Kirk describes, the venerated authors of the Declaration of Independence, many of them slave owners themselves, would be hypocrites. And surely, surely they can't be hypocrites.

In the words of Chief Justice Taney, "If the language as understood in that day would embrace slaves, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted. And instead of sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke in reprobation."

Note how Taney suggests that rebuke and reprobation would be directed at their hypocrisy rather than the fact that these individuals held other humans in bondage. It is truly a unique perspective on the world. Now, Taney finds further evidence that slaves cannot be citizens from the constitutional provisions, providing for the importation of slaves and the return of fugitive slaves.

He also likes the state law which treated members of the African race as an inferior and subject race. Now, note how the consequences of Taney's determination as slaves are not citizens is that slaves suing for freedom have no right to sue in federal courts at all. They have no right to sue as state citizens or as US citizens or as foreign citizens.

And we're looking at the opinion as a whole, what we see is in Taney's analysis is very much a results-driven analysis. He wants Black people to be denied any possibility of citizenship rights. He doesn't really care about citizenship for Article III diversity jurisdiction purposes. He cares that Black people retain an inferior and subjugated status.

After determining that Dred Scott is not a citizen, Taney proceeds to a second holding that should have been construed as purely dicta because the court had no jurisdiction to hear the case because there was no diversity of citizenship jurisdiction because Dred Scott was not a citizen. But nonetheless, Taney felt the need to opine further on the constitutionality of federal law.

Now, I didn't assign this part of the opinion to you, but it's important to recognize the aspect of the opinion that was such an important contributor to the Civil War. In addition to the finding that Scott was not a citizen, the court held that the Missouri Compromise is a restriction on slavery in the territories is unconstitutional because it deprives slaveholders of their property without due process of law.

Now, this is the first instance of an interpretation of the Due Process Clause as providing for substantive rights protection rather than merely procedural rights. It provides for the protection of property without due process and identifying those slaves as forms of property that are entitled to substantive protection under the Constitution, or that slaves as property that the slave owners are entitled to constitutional protection under the Constitution.

Now, we'll explore more of the substantive due process logic in cases that we start to read tomorrow. Now, Taney wished to invalidate the Missouri Compromise for political reasons. The invalidation freed up every territory-- excuse me-- and thus possibly every future state to the possibility of slavery. Many Southerners considered that they should have an equal claim on all national territory, and thus that all states and territories should be open to slavery as of right. The holding in this case did precisely that.

Now, note that the invalidation of the Missouri Compromise represented the first time since Marbury v Madison that the court struck down a federal law. Marbury v Madison was decided in 1803. 54 years later, the Supreme Court struck down a second federal law this time striking down the Missouri Compromise.

Dred Scott is widely reviled as perhaps the worst Supreme Court decision ever written, not just for its results but also for its reasoning. It very much contributed to the initiation of the Civil War four years later. The Civil War, which began with the Confederate armies shelling of Fort Sumter in South Carolina from April 12 to April 14 1861, would last four years and one month.

Roughly 2% of the population, an estimated 620,000 individuals, lost their lives in the line of duty. Just to give you a sense of scale, 2% of our current population is 6 million people. An additional 476,000 individuals were injured, and 400,000 were captured or missing.

Now, I know this is a cliche that perhaps reveals my age, but I'm old. But my favorite documentary series of all time is the Ken Burns Civil War. Truly powerful and demonstrating the scale of human destruction caused by this war. At the conclusion of the Civil War, the 13th, 14th, and 15th Amendment were adopted.

The 13th Amendment abolished slavery, and we'll return to that shortly. But Section 1 of the 14th Amendment specifically overruled Dred Scott by declaring all people born or naturalized to be citizens of the United States and the states wherein they reside. This is citizenship by birth rather than by blood. It also protected against state infringement of privileges or immunities, equal protection, and due process rights of individuals.

As a formal matter slavery had ended and equality and liberty rights were written into the Constitution. But the subjugation and subordination of members of the African race would continue long thereafter due, in part, to the Supreme Court's interpretations of the Reconstruction Amendments.

Now, the, Slaughter-House case represented the first opportunity for the court to interpret the 13th and 14th Amendment. Ironically, the case did not involve a claim by African-Americans for protection under the Amendment. Instead, it was brought by a set of Louisiana butchers who were seeking protections under the 14th Amendment.

Now, the Slaughter-House case principally involve the question about the meaning of the Privileges and Immunities Clause under the 14th Amendment. According to the provision, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Now, note here again, the language of this provision. And I just want to emphasize this for effect in terms of understanding the transformation in the relationship between the state and federal government. No state shall--

The First Amendment begins with Congress shall not abridge the freedoms that are contained in the First Amendment. But this Amendment, the first of the Reconstruction Amendments, specifies no state shall-- And what they are clearly indicating is that this Constitution or, at least, this amendment applies to what states do. That rights of US citizens and state citizens are protected under this Amendment against state infringement.

That was a radical transformation. Thinking back to the original moment when they adopted and ratified the original Constitution. Part of the deal and part of the compromise with respect to creating a stronger federal government was to give the states considerable autonomy. And even though the anti-federalists were pushing for this Bill of Rights to protect the citizens of the United States, they had no inclination that this Bill of Rights would apply to the states.

Instead, it was generally understood that states would protect rights through their own constitutions, and they would enforce rights through their own state courts, and that there would not be involvement of the federal government or federal courts in the protection of the rights of individuals. But it's recognized with respect to the 14th Amendment and the Reconstruction Amendments that that arrangement can no longer stand.

Because when states were left to their own devices, there was enslavement. If states would be left to their own devices in the future, there could be enslavement again. Maybe not in the formal sense-- the 13th Amendment abolished slavery-- but in setting up systems of subordination and subjugation that would pretty much mimic slavery's institutions such that African-Americans would have very limited rights.

Limited rights to their liberty, limited rights to property, limited rights to even life. And so the radical Republicans who were the lead players in articulating and adopting the Reconstruction Amendments really focused on targeting the states with the 14th Amendment in particular.

Now, there's also a thought that the 14th Amendment would potentially protect perhaps what was seen as the most important right, the right to vote. Now, one idea is perhaps the right to vote is embedded within the Privileges and Immunities Clause. But the Privilege and Immunities Clause as set forth in Article IV of the Constitution was not understood to protect the right to vote.

So what they included in this Amendment as well, a provision that I don't have here, is Section 2 of the 14th Amendment. Section 2 of the 14th Amendment is often ignored in constitutional law classes. You can take out your pocket Constitution to take a look at it. You may have not come across this at all in life. You may not come across this again during your time here.

But it's a truly unique provision in the Constitution. What it does is it sets up a penalty for the failure of states to enfranchise their African-American population. If you fail to enfranchise-- just paraphrasing the provision-- you will lose representation in the House to the extent that you do not enfranchise African-Americans.

This was, in a sense, a carrot and stick approach. The carrot was you can maintain your representation in the House, and you'll actually get a boost to representation in the House because African-Americans would no longer count as 3/5, they would be full persons. But in order to secure that representation in the House, you would have to enfranchise your African-American population.

As you can imagine the South was quite resistant to this idea because the South and many states in the South had majority or nearly majority Black populations. That's how extensive slavery was that African-Americans outnumbered white Americans in states like South Carolina, came closer or maybe even outnumbered them in states like Mississippi and Louisiana.

And so to enfranchise these African-Americans meant not only recognizing them as citizens and political citizens but perhaps giving them political control. And you can imagine the thoughts and ideas and imagination of the slaveholders themselves. They feared the consequences of enfranchising African-Americans. They feared the consequences of African-Americans exercising political power. They feared retaliation and revenge for the years of brutal slavery that they subject to African-Americans to.

But they also have this sense of a superiority complex that African-Americans were inferior. They were incapable, incompetent, did not have the capacity to govern. And so these combination of factors led the radical Republicans to predict that there would probably be resistance even with the penalty applied to the failure to enfranchise.

And it was due to this concern about resistance that Congress, the radical Republicans, ultimately, adopt the 15th Amendment. And what The 15th Amendment does is what the 14th Amendment doesn't explicitly do. It prohibits the denial or abridgment of the right to vote on account of race or color. And that was seen as the amendment that would provide the full protection to the political rights of African-Americans.

But again, as I mentioned earlier, this would all turn on how the court interpreted these amendments. Just speaking about the 15th Amendment since I'm on that point right now. You could have a provision that protects the right to vote against abridgment or deny on account of race or color, but what about other means to deny the vote that are race conscious or perhaps oriented towards the goal of disfranchising African-Americans?

You could think about literacy tests combined with the failure to educate African-Americans. You could think about poll taxes with the failure to provide African-Americans with a necessarily income and wealth opportunities to be able to pay those poll taxes.

You can imagine a variety of tactics that are not state sponsored or perhaps only state sponsored in a more limited sense, violence, intimidation. All of these tactics that were done in coordination with groups and the newly emerging Ku Klux Klan in Southern states were directed at disenfranchising African-Americans and denying them their rights.

Now, you can imagine the Supreme Court could step in. We often think of the Supreme Court as the counter-majoritarian institution that is empowered and equipped with the tools to protect individual rights. But what we'll see is that, at least, during this early period during between 1870 and 1954, the court didn't really see itself in that role, at least, when it came to protecting African-American rights.

Now, there were certainly occasional cases in which you saw the Supreme Court adopt interpretations that were helpful. But, for the most part, the Supreme Court engaged in interpretations that were quite counterproductive to the project of creating a more equal and inclusive American democracy.

And the Slaughter-House case represents the first of such cases. Slaughter-House case, again, was a case that could have expansively interpreted the Privileges and Immunities Clause. It could have expansively interpreted the Privileges or Immunities Clause to protect liberty rights, to protect the rights contained in the first eight amendments to the Constitution. But as we'll see the court did not take that tact.

Now, interesting to note about the Privileges and Immunities Clause is that we already had a Privileges and Immunities Clause. We have in section 1 of the 14th Amendment the Privileges or Immunities Clause-- I always get these things mixed up-- and we had in Article IV Section 2 a Privileges and Immunities Clause.

And so the question was, well, why do we need these two clauses? Well, the answer is one I just gave you in the sense that the original Constitution was not understood to necessarily apply to the states to protect the rights of individuals within a state whereas the 14th Amendment was.

But then the next question is, well, what did the Privileges or Immunities Clause mean at the time under Article IV of the Constitution, and should that meaning be applied to the 14th Amendment as well in interpreting the Privileges or Immunities Clause?

So the court in Caufield v Coryell in 1821 offered an interpretation of the privileges or immunities and Immunities Clause. See, I told you I'd get that mixed up. So what they interpreted the clause to do was to protect those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free governments and which have at all times been enjoyed by the citizens of the several states, which compose this union from the time of their becoming free, independent, and sovereign.

That's a very expansive notion of rights when you think about it. It's not only the recognition of fundamental rights that might be embedded within the first eight amendments of the Constitution, the Bill of Rights, but they also perhaps encompass perhaps natural law rights, rights that belong to you before you enter into a society. A set of rights that the court would opine about when we get to the due process cases that we'll study starting tomorrow.

This was an expansive notion of rights. But what it held with respect to how it applied Article IV Privileges and Immunities Clause is that it restricted states from discriminating against citizens of other states in the provision of these fundamental rights. What it did not require is that the states protect these fundamental rights of the citizens of their states.

So if the state only provided limited protection for fundamental rights, all that a citizen of another state would be entitled to would be those same limited protections of fundamental rights. Now, the 14th Amendment potentially does something differently. It potentially holds that there are rights that citizens of the state hold that the state must protect or the state must respect at least.

And the question is, whether the Privileges and Immunities Clause would incorporate that idea. So Kirk turning back to you. What does the court, ultimately, say about what the Privileges and Immunities Clause means under the 14th Amendment?

AUDIENCE: They basically say that the state can't abridge federally protected rights, and they look to a very limited scope of rights like conduct on the high seas or the applicability of treaties and say that that's what the 14th and 15th Amendments are. That it's mainly limited or was targeted at protecting African-Americans from slavery and that sort of the extent of it.

ROSS: So the Privileges and Immunities Clause that they fought so hard to include in the Constitution protects individuals on the high seas.

AUDIENCE: Right, that's what they say.

ROSS: Wow, what happens on the high seas that they're so worried about that needs protection, do you think?

AUDIENCE: Well, you have piracy, I suppose.

ROSS: OK, that's true. OK, we're worried about pirates, and that was kind of like a focal point here. They also say, it gives you a right to go to your seat of government. So it protects you in your seaports. Essentially, it's-- I don't want to be disparaging towards rights, but it seems like a pretty crappy set of rights in terms of what you can possibly get as might be declared fundamental.

So when they define sort of what the rights that the state has to protect, it becomes a much more limited understanding of rights. Now, this is a very important move that the court is making. It's an important move because if we understand the Privilege and Immunities as only protecting these limited sets of rights, it returns or it re-transforms the relationship between the state and federal government that the radical Republicans sought to shift in the way of the federal government, at least, with respect to rights protection back to the States.

And it says, now you states are responsible for protecting other rights under your constitutions, and the federal Constitution will have limited things to say. Now you could potentially say that the Due Process Clause and Equal Protection Clause might have something to say about that. And Justices on the Slaughter-House cases do offer the idea that it could protect more. But ultimately, what they hold with respect to the Privileged Immunities Clause is a very limited set of rights.

So you see in terms of going through the Corfield v Coryell idea, the rights that are entitled to protection include protection by the government, the enjoyment of life, liberty, with the right to acquire and possess property of every kind, to pursue and obtain happiness and safety subject nevertheless to such restraints as government may justly prescribe for the general good of the whole.

Used to read those, you're like, I'm feeling good. I'm feeling protected. I could do anything. I'm a super man or woman or lawyer, whatever you're super. I know how to analogize and distinguish and I've got rights. Now, John Bingham when you look at of the history of this amendment, he understood, he thought that this Amendment would do a lot.

Now, John Bingham is an important figure. He's kind of the Madison of the 14th Amendment. We kind of think of Madison as being the principal player with respect to the construction of the original Constitution. But when we come to the 14th Amendment, it is John Bingham who is the principal actor. There's a whole book by Gerald Magliocca on John Bingham.

I didn't know you could write a whole book on John Bingham but you can. And I haven't read it yet, but I plan to at some point. The Privileges and Immunities Clause of citizens according to John Bingham are chiefly defined in the first eight amendments to the Constitution of the United States. These eight articles I have shown never were limitations upon the power of the states until made so by the 14th Amendment.

So it's acknowledgment that the first eight amendments did not apply to the states prior to the 14th Amendment. They only apply to the actions of the federal government. But then it's also an assertion that now these amendments do apply to the states, and they apply to the states through the Privileges and Immunities Clause.

So when we get to the butchers in Louisiana who are making these claims, they're making a claim against a monopoly that's set up by the states which undermines their livelihood, undermines their property rights perhaps and seeking compensation or seeking an injunction against the law. And they bring claims under the Equal Protection, Due Process, and Privileges and Immunities Clause. And the court rejects each one of those claims but for different reasons.

When they address the 13th Amendment, which I think was a bit of a stretch, they point to the fact that the Amendment is about slavery and other analogous forms of slavery, of servitude. And that's just not applicable here. It may be that the state is setting up a monopoly. It may be harming your livelihood. But to say that you're being held in involuntary servitude through the monopoly that the state has created is a step too far that the court is not willing to take.

When it comes to the 14th Amendment due process claim, the court says that they have not been deprived of property within the meaning of this provision. Now, the court had as we just learned determined that slavery was a form of property that's protected under the Due Process Clause. But here they hold that the livelihood of these butchers is not a form of property protected by the Due Process Clause.

And then when you get to the 14th Amendment Equal Protection Clause, and here's an interesting point that the court makes that would have relevance to future decisions. That the Equal Protection Clause was designed exclusively to protect African-Americans from discrimination.

Now, this has a couple implications that one is troubling, and the other depends on your perspective. The first one is troubling is that the Protection Clause doesn't protect any other class of people. It doesn't protect women against discrimination, doesn't protect non-citizens from discrimination, doesn't protect persons who were born out of wedlock from discrimination.

The other categories and class of people that the court has determined are entitled to protection from discrimination through a closer scrutiny of laws. Doesn't protect LGBTQ individuals from discrimination either. But the second implication, which is an interesting one when we get to the affirmative action cases is that it's designed to protect African-Americans against discrimination.

Now, it mentions in terms of the concern about African-Americans it's this concern about protecting them against discrimination arising from racial classifications. So you could see embedded within there-- you don't have to remember these terms because we'll come back to them shortly enough, and we'll spend a lot of time there-- is this Amendment about protection against African-Americans against subordination or is it about protection against the use of race as a classification? The Slaughter-House case provides ammunition for both interpretations.

But when we get to the Immunities Clause, this also does not apply because despite the statements that the court made in Caufield v Coryell-- and we'll come back to those statements right here-- in terms of the enjoyment of life and liberty of every kind with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, despite all those things that Caufield v Coryell said the Privileges and Immunities Clause under Article IV protects, the court said no, it doesn't protect those things. It protects something much less.

It's designed to protect US citizens from state government, sure. But not to protect citizens of a state from their own state. And as a result, the Privileges or Immunities Clause can only be understood as protecting the rights of US citizens, not state citizens against their state. And what are the rights of US citizens? Well, the right to come to the seat of government, free access to seaports, protection from the high seas. But what they do not include are those fundamental rights found entitled to protection in Caufield v Coryell.

Now this is not always the clearest opinion. I know that when we go back to 19th century opinion making, sometimes the eyes get a little blurry. We have been dealing with modern cases that although very long are much clearer in their articulation of ideas and doctrine and principles.

So Slaughter-House case, what do we think? Are there questions that arise from the case that have raised confusion? Yeah.

AUDIENCE: I'd say it's interesting that the court held that the fundamental rights are not protected when the primary author, the framer of the 14th Amendment John Bingham himself stayed with the fact that he wanted this used to incorporate the Bill of Rights to the states.

ROSS: Right. And it's really interesting when you think about this is not an opinion that is written many years after. This is-- what was the year of the Slaughter-House cases? 1874. Right? 1874? Is that right? '72, thank you. And so yet it's coming literally four years after the ratification of the 14th Amendment.

These debates in Congress about the 14th Amendment are occurring over the course of a period of 1866 to '67. Six years. Five to six years. This is close proximity. I think John Bingham's alive. I haven't read the bio yet, so I don't for sure. But I think he's alive. And yet there is just neglect and ignoring of these statements that are in the record. Yes.

AUDIENCE: So I guess I'll just come out and say it that it shows the absurdity of originalism in general even in the even in modern day.

[LAUGHTER]

Right here we have these were their contemporaries, and I would say it's universally viewed as a terrible decision that cannot be a plausible reading of any of, at least, the 14th Amendment. And they couldn't even agree it was a 5-4 vote of contemporary people who probably were in contact through these people could have asked John Bingham, could have asked anyone. So it's absurd on that level.

And then it's also absurd to assume that the framers of these amendments all had some kind of a universal view and were united and the reasons why they voted for or ratified it for these reasons. And if they couldn't even figure it out in 1872 within four or five years of the amendment, then how can Justice Thomas or Justice Scalia just divine now what a universal meaning that didn't even exist for the contemporaries of people framing an amendment.

ROSS: I guess I take that point, but I'm just curious, could they not divine it, or did they choose not to divine it? And if they chose not to divine it, why did they choose that? Yes. You don't have to answer that question. You can answer.

[LAUGHTER]

AUDIENCE: Respectfully push back against Mr. Wolfe.

[LAUGHTER]

ROSS: Now we're going by mister now. OK, I love it.

AUDIENCE: But I do think that the court in this case did not choose-- like that they purposely chose to ignore what was the original intent of the 14th Amendment. And that the court following this case was following this erroneous interpretation. But eventually, I think it may have come back to [INAUDIBLE] of what the framers [INAUDIBLE] stated when writing it themselves.

ROSS: What's interesting about this debate that's being had right now is that Justice Thomas, who is probably the most consistent originalist on the court, the most consistent person who is willing to derive from history meaning that it should be applied today, and he disagrees with the Slaughter-House cases. He has a different view of the Slaughter-House cases than those who proposed it.

He sees, when we get to the substantive due process, the first eight amendments have been-- almost every one of them has been incorporated into the 14th Amendment, which means that they have been applied to the states through the 14th Amendment. But they haven't been applied and incorporated through the Privileges and Immunities Clause.

Instead, they've been incorporated and applied through the liberty provision of the Due Process Clause. And what has been determined, as we'll see going forward, is that liberty includes most of the rights contained in the first eight amendments. And those liberties cannot be subject to deprivation without Due Process.

Now, that sort of without Due Process point has kind of fallen away because really what the court is saying is that these rights are entitled to substantive rights protection, and the state cannot deny those deprive individuals of those protections without good reason.

But that has raised all kinds of sorts of controversy because then you have the historian saying the Due Process Clause was not meant to do that. But then the response is OK but the Privileges or Immunities Clause was meant to do that.

But then the response says that Slaughter-House case says it wasn't. And so now we're kind of stuck in this conundrum of, well, what do we do? And that's been the source of debate that we'll enter into over the course of the next several classes. Yes, please.

AUDIENCE: I think actually one of the most important paragraphs in this thought that helps explain what is going on, well, what Justice Miller is trying to do is on page 9, where he actually makes a kind of consequentialist argument.

Like he said, I don't think he's really try to get at the meaning of the Privileges or Immunities Clause because he's focusing-- I think he's really worried about the potential consequences of the original meaning. That it's going to restructure the federal and the old school Federalist structure of the original pre-14th Amendment. He was like you can't do that.

And so we're getting a clear statement before he accepts that privileges are mainly to protect the [INAUDIBLE].

ROSS: Right. And so you think about this, it's interesting. I like how you brought in the clear statement rule. I don't think-- are you taking legislation statutory interpretation right now? You're not even taking statutory interpretation yet, and you already got clear statement rules being discussed. Man after my own heart.

But what we see here is remember, the major questions doctrine? Your like, nah. When did we do that? The major questions doctrine was like, all these matters of huge economic, political significance, we are going to demand that Congress clearly express their intent to delegate that responsibility to the agency. In some ways you could see this case operating in that way.

To say that the Privileges and Immunities Clause encompasses all of these fundamental rights, fundamental rights that Corfield v Coryell identifies that are contained in the first eight amendments, that would be a radical change to our structure of the Constitution. It would fundamentally transform the relationship between the state and federal governments.

Radical Republicans are like, mm-hmm, that's what we're trying to do. But you didn't say so clearly enough. But I don't how you say it clearer. If we understand privileges and immunities in the Article IV to mean those privileges and immunities that Caufield v Coryell define, then shouldn't be that a clear statement about what privileges and immunities was meant to mean in the 14th Amendment? Is there something about or and an that changed the meaning?

AUDIENCE: Yeah, as we were talking about what Bingham was being said about the first eight amendments and whatnot, it was confusing me because without all of those amendments were incorporated against the states. So does that require Supreme Court cases for Justices actually say that?

ROSS: Yeah.

AUDIENCE: Just go to the Justice Thomas route and say the Privileges and Immunities Clause is--

ROSS: Right. So what we've had is a case-by-case approach. So there's a case called Barron that was in the 1830s, I believe, in which the argument was that these first amendments applied to the states. And they said, no. Then we have the Reconstruction Amendments that come about. And then this case they essentially say, no, the first amendments don't apply to states even though we have the 14th Amendment.

And then what follows is starting in the 1900s is a case-by-case, clause-by-clause determination as to whether these rights are so fundamental to order liberty that they should apply to the states as well. And it's their discretionary determinations. How do you know when something is so critical to order liberty? What does order liberty even mean? what does that connote? How do we know which rights are related to it?

And so you have the court engaged in this process, nonetheless, of clause-by-clause determinations of whether rights should be considered fundamental in that respect. And we are at the point right now where-- oh, gosh, if I had to put a percentage on it, 80% to 90% of the clauses under the first eight amendments are now applicable to the states.

But it's through due process, it's through conceptions of liberty, and it's through determinations of which rights are fundamental. And we'll ultimately see the court make this move in terms of which rights are fundamental to not only include those rights that are contained in the first eight amendments because rights of fundamental ordered liberty aren't necessarily textually derived, but they can also be rights that are not enumerated.

Rights that are not enumerated that the court has said are fundamental and entitled to protection. But then it said in the recent case of Dobbs that one of those rights is no longer fundamental. And so we have kind of through these discretionary exercises determination of what's fundamental and what's no longer fundamental going forward.

AUDIENCE: And [INAUDIBLE] can choose, like, what does it mean to be interpreted the Constitution or the law. Because as the case said here they look at the intent of Congress. But what Congress would accomplish that? Like get Congress that passed that amendment or the current Congress? Because it is a current Congress, why don't we ask Congress?

ROSS: Yeah, yeah, yeah, yeah.

AUDIENCE: Interpret it. And the author of the amendment was there. So why don't we ask that person for their impact?

ROSS: John, come on in, right? So the first question it really turns on interpretive methodology. And if you are an originalist or more historically inclined with your interpretive methodology, then the argument would be that you look to those who adopted the clause.

Because that Congress that adopted the clause, their meaning of those clauses should have the most relevance. They are the authors of that provision, for lack of better word, better term. And as authors of the provision what we're trying to derive is what did they want.

Now, there's been a pushback against that idea because when you're looking to what particular Congress members want, you don't necessarily that a majority of the Congress agreed with that assertion. So you could have John Bingham make these assertions about what he thought the Privileges and Immunities Clause did, and you may even recognize him as being the most important figure in the creation and the adoption of these Reconstruction Amendments.

But we still don't know that a majority or assumed majority of Congress agreed with that assertion. They may have been nodding their head in the chambers like this, yeah, but they haven't recorded their vote saying, I agree with what Bingham says about the meaning of this provision.

So what has taken the place of that type of interpretive methodology is one that focuses on what did the people at the time understand those terms to mean? What did privileges and immunities mean to the people at the time?

Now Slaughter-House cases they didn't do any of that work. They just came up with their own logic as to what privileges and immunities meanings that was not really derived from the text or intent or even original meaning approach.

The second point with respect to why bring John Bingham in, it shows the procedural limits of courts, especially a Supreme Court. A Supreme Court typically doesn't have hearings with those who constructed the law, even though those hearings might be helpful. There may be briefs that Congress members could submit on behalf of one of the parties as amicus that could be helpful. But ultimately, the Supreme Court is not positioned to hold hearings in that way. They hear arguments that are presented in briefs and that's their limit.

AUDIENCE: I have a question about [INAUDIBLE] but they say [INAUDIBLE] such instruction would constitute the sport of perpetual censor on all legislation in the States right here in [INAUDIBLE]. Is that not entirely [INAUDIBLE]? And is the primary issue a separation of powers argument, or is it [INAUDIBLE] using powers to expand it?

ROSS: Yeah, going back to was that the point? That was the point. That's what made the 14th Amendment radical. It wasn't just the articulation of a set of rights and abolishing slavery. That was certainly radical, but it had even a more radical import.

It said that the federal Constitution now is a police over state activities. It is a limit on state behavior. And it's constrained because the 14th Amendment not only includes rights that the state must respect, which no one contradicted, but it also contains rights that the state didn't have to respect before that are now embedded in it.

So that was the very point of the whole-- and I think that what you see with respect to this court, the court that exists in 1872 is not that different from the court that existed in 1857 at Dred Scott. It's still a Southern dominated court. And if there's any sort of set of folks in this country who were most protective of state rights it was the Southerners because they were threatened by federal power.

They, ultimately, through Union Army forces were subjugated or dominated or lost a war to the federal government. And so those Southern Justices still had loyalties to not only the South but also to principles that preexisted the war. Yes.

AUDIENCE: Going back to Dred Scott, where did Taney come up with [INAUDIBLE]?

ROSS: Yeah, so there is a Fifth Amendment Due Process Clause. And the Fifth Amendment Due Process Clause basically mimics what the 14th Amendment Due Process Clause says. And so the question has always with the Due Process Clause is whether it protects procedural rights, whether it says that you cannot be deprived of these things without fair notice, without proper process, without adjudication by a neutral body, whatever it might be.

And if you look to the history, that probably comports more with how the framers of the original Constitution understood this due process clause to do. But what he does as transformative is not to say that the Emersons cannot be deprived of their property without proper process. It's that they cannot be deprived of their property without-- he says due process, but, ultimately, it'll be interpreted without good reasons.

And those good reasons and how good they have to be shift on the basis of determination by the court of how important these rights are. And we'll see the court come up with doctrine that develops over time to say that good reasons have to be compelling reasons. And you have to show ultimately that this deprivation of this is necessary to achieve these compelling reasons, for example.

But at the time, the doctrine was underdeveloped. But he comes up with this idea that protects property without due process from the language in the Fifth Amendment, but he puts a different spin on it.

AUDIENCE: Then, I guess, I'm just a little confused with how [INAUDIBLE] the Missouri [INAUDIBLE] functions. Because it seems like with Dred Scott, obviously, like [INAUDIBLE] laws that affected Dred Scott's rights. And that seems more like a state defining things where that's like upheld here in Slaughter-House but that's also been denied [INAUDIBLE]. So I'm getting confused like how the federal government decided to grant some liberties.

ROSS: Yeah, so they're talking about in Dred Scott the territories. And so the big thing of the Missouri Compromise is what would the territories protect? Remember, in 1832 and 1850s, we had a wide swath of the west that was territory, not states yet. And the question would they be slave or would they be free?

When they are territories they're under the federal government's jurisdiction. Federal government could define the rules of the game, define what rights and protection. The Northwest Ordinance was one such provision that set forth the rules of the game and the rights that are entitled to protection in the territories.

And so the question that the 1832 compromise sought to resolve is like, OK, in the territories from here on out, these states would be free, these states would be slave. OK, we're good. 1850, and so what Dredd Scott does it says, you can't do that. You can't determine what territory is going to be free, federal government. It's the right of the people, and they could take their property to these territories as they wish.

Now, the concern was will that also apply to the states as well? Now, there wasn't any notion that the federal government could define the rights of people in the states, but there was a fear that the federal government under the wrong hands could move in that direction. And so that concern about slavery moving into the states and Northern states was also palpably felt. Probably unlikely that it would occur. But if the territories became slave states in the future, we would have a country that would be dominated by slave states leaving the free states quite vulnerable politically.

AUDIENCE: I guess, my question would be that with Judge [INAUDIBLE] going [INAUDIBLE] like can they alter the property rights? [INAUDIBLE]?

ROSS: Yeah, and that's what-- absolutely, that was the argument. That once he entered into Maine-- Maine does not have slavery or Minnesota. Minnesota doesn't have slavery. It was a territory at the time. If he had gone to a state, if they declared-- if all African-Americans were free, slavery is prohibited, he should be a free person.

And so what his claim was like when he entered into Upper Louisiana, Illinois, he was free. Therefore, he cannot be held in bondage anymore. And the court didn't--

AUDIENCE: And then someone else brought the claim, so it could actually exist.

ROSS: Yeah, so then the question of standing and how that would apply and such. Yeah. Maybe. I think Taney would have-- it was very results driven. And trying to reason through the logic, you could imagine perhaps ways in which some friend of the party that has standing could have brought the claim. I don't if Taney's going to countenance it either way. Yeah.

AUDIENCE: [INAUDIBLE]. So thinking more about the Slaughter-House cases, given the facts, it seems like [INAUDIBLE] the court decided. Like what if the butchers [INAUDIBLE] their Equal Protection Clause claim, doesn't that just open the door for white people to make claims-- the Equal Protection claims?

ROSS: Yeah, yeah. So the Equal Protection claim is interesting here. It wouldn't be a claim that we are being discriminated on account of our race. It would be a claim that we are being discriminated as butchers by this policy.

If the court were to accept that, it would be a pretty expansive notion of equal protection. That even occupational status is a status that's entitled to protection of the Equal Protection Clause. And what we right now is that occupational status is subject to minimal protection under the Equal Protection Clause.

If the court had held otherwise and we have a more expansive notion, and that would open the door to protecting other classes and groups under the Equal Protection Clause. Now, what would it have said about the protection of white individuals against discrimination ostensibly in favor of African-Americans? That would have been an interesting one.

The court opened the door to the possibility that we should see both forms of discrimination equally through noting that one of the problems is race as a classification. And the court alludes to that. But it also describes that this is primarily defined in this clause as a primary purpose of protecting African-Americans from discrimination.

So it's kind of pointing in both directions. It's not clear which way it would cut if the court had held otherwise with respect to Equal Protection. But the door remains open with respect to how the court would resolve it in the future even after this case. Yeah. Oh, yeah. [INAUDIBLE].

AUDIENCE: [INAUDIBLE] contents, but that feels like [INAUDIBLE] protection, or if I should feel like, wait, what? A lot of like [INAUDIBLE] recorders, things like that. Is that [INAUDIBLE]?

ROSS: Well, absolutely. It would have been extraordinary. It would have been transformative for sure. If you held that these butchers had equal protection right against infringement on their livelihood through their occupation by a state law, labor rights protection, wow, we'd be all union. You'd all be unionized in this room approaching the podium trying to take me out saying, I got rights. You can't talk to me like that. Yeah. So yeah, it'd be transformative, but it just didn't happen. Yeah.

AUDIENCE: Something that kind of struck me based on what you had said earlier about the one-by-one approach to incorporation was this case that, I guess, it's a big case for reading it, but I've never heard of it before now. It kind of led to, if I'm interpreting it right, a little bit of an anti-democratic approach to incorporating these rights against the states because if they interpreted the Privileges or Immunities Clause the way the writer intended, then the Amendment itself seems like it would have very intentionally given up these rights. But instead now [INAUDIBLE].

ROSS: That's exactly-- oh, you hit it on the nail. Because that would be the debate that emerges. Debate in cases like Dobbs. Dobbs is a recent abortion decision in which the court held that we are going to take a neutral position with respect to the protection of reproductive rights, and we're going to leave it to the people of the states to make these decisions.

And that part of that determination is that it's anti-democratic for the court to protect these rights as fundamental. Now, these are unenumerated rights, but you could potentially make the claim with respect to enumerated rights as well as apply to the states. Because it was a determination by these nine Justices that these rights are entitled to protection against state infringement.

When, in fact, it wasn't really those nine Justices, it was an entire Congress potentially if you read Bingham's interpretation of it and take it seriously. But yeah, you're right, and that's a debate that we'll discuss over the course of the rest of the semester.

So let me just kind of close out. Now E.S. Corwin, historian, kind of limited on what happened to the Privileges or Immunities Clause in this case. The court has not revisited this case. Slaughter-House case is still good law. Privileges and Immunities Clause still means what the court said it meant in that case.

And what he said was that, "Unique among constitutional provisions, the Privileges and Immunities Clause of the 14th Amendment enjoys the distinction of having been rendered a practical nullity by a single decision of the Supreme Court rendered within five years after its ratification."

It kind of goes back to the point that was made at the beginning in terms of this debate that was being had about originalism. They had a good sense of what the radical Republicans wanted, but they just chose to ignore it. So tomorrow, we'll turn to our Due Process Clause discussion as we see the court wrestling with the interpretation of that clause.

But before we engage that clause, we'll go over the practice exam with respect to the federalism hypo. Sorry about all the confusion with that. Oh, man, yeah, talking about rushing the floor. But I think we got it sorted, and we'll go over that tomorrow. I'll see you all then.