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States' Liberty Party E-BookMorality & the ConstitutionChapter 3 – Privileges or Immunities, the Unresolved Riddle
Not long after ratification of the Civil War era Fourteenth Amendment that had brought an excitement to Americans of a new and renewed set of federal protections, a segregation minded and business oriented Supreme Court in a post Civil War decision called Slaughter-House Cases, took the centerpiece privileges or immunities clause and rendered it virtually meaningless. Today’s scholars generally believe the Court was wrong. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”, is how the clause reads, but what is a privilege or immunity of a U.S. citizen? The Slaughter-House Supreme Court acknowledged the Fourteenth Amendment’s recognition that we are citizens of both a State and the United States, in a concept known as federalism, a system giving separated equal powers to different branches of government. Slaughter-House was about the State government having created a monopoly for one particular slaughterhouse, writing out the others so that they could not operate, a seeming obvious equal protection problem. The Court correctly realized that US citizens have a right to a federal system where federal and State powers are separated, and so declared that the federal government cannot interfere with a power delegated to the State, not federal government. Legal scholars disagree with the Slaughter-House interpretation. Some claim that the Bill of Rights protections applying to Congress are privileges or immunities of U.S. citizens and should therefore have been applied to the States by the Slaughter-House judgment. This reading is wrong, for a law or protection only targeting Congress is not a privilege or immunity against the States. The reverse is true, as the earlier Court found: State citizens have a privilege or immunity from unwarranted federal interference in their collective right to regulate their communities through their representative State government. The controversy cannot end here, for if it were true that the Slaughter-House Court were right, then the privileges or immunities clause is merely a duplication of the Constitution’s Article IV supremacy clause mandating that federal law negate state law whenever valid laws clash, with only an insignificant difference, that of rights, not laws, but laws are founded upon rights, both individual and collective. The Slaughter-House Court, although correctly protecting the federal system, didn’t take it far enough, for United States citizens have a privilege or immunity to natural and fundamental rights that need not be enumerated by the government. These rights, none of which are (prior to ratification of the Fourteenth Amendment) enumerated in the Constitution as enforceable against the States, are applicable to the Privileges or Immunities clause, because they are privileges or immunities of a free people. The clause thus makes these rights federally enforceable against the States. The Privileges or Immunities clause, besides appearing in the then new Fourteenth Amendment, was not intended by Congress as a new federal power. The clause in nearly the same form is in Article IV, section 2 of the original Constitution and also in the earlier disposed of Articles of Confederation. The Court merely decided that the clause had been intended as self-enforced by the States in the Articles of Confederation and this intent was for unexplained reasons carried over to the Constitution and the new amendment, even though the amendment’s applicable clause plainly begins with “No State shall…”. The Supreme Court’s Everson rewrite of the First Amendment cannot stand with a correct interpreting of the Fourteenth Amendment. A free people have no recognized fundamental right to be free from religion, they have a right to freedom of religion. A religious establishment may or may not violate the rights of individuals. Such a law must first be written before it may be scrutinized for constitutionality. This is true, not regarding Congress, but for enforcement against the States. A blanket ban prohibits Congress from creating an establishment of religion. The States are under no such prohibition. The Supreme Court cannot do what Congress is prohibited from doing, on an authority that Congress is prohibited from doing it, but it is exactly what the Court has done.
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