Horace Cooper

In a remarkable recounting of the rationale behind the adoption of the 14th Amendment Thomas quotes founding father Luther Martin (the principal advocate of the Constitution’s ban on slave trade at the Constitutional Convention) and President Abraham Lincoln as provides accounts from contemporary press coverage at the time along with a comprehensive analysis of Congressional records. Justice Thomas persuasively argues in his concurrence that the 14th amendment was adopted as a means of “repairing the damage to the nation that slavery had caused” and he reminds us that it resulted in fundamental changes in the status of all citizens. Thomas points out that the 14th Amendment “unambiguously overruled” Dred Scott and declared clearly that blacks like other Americans were citizens of the United States and citizens of the states where they resided. However, he places a special emphasis on the 14th Amendment’s pronouncement that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The “Privileges and Immunities” clause Thomas says, “On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities— attributable to that status.“

So why isn’t this recognized today by the Courts or even taught in law schools? In Thomas’ view, it was not a failure of will or action by the Republican Congress or the people of the United States when they ratified the 14th Amendment. Instead, it was the Supreme Court that failed to follow through. Within three years after the adoption of the 14th Amendment, the Supreme Court retreated from its duty to protect the liberties of all Americans. In a “closely divided decision (in the so called Slaughterhouse cases) ….. the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship” holding that that the Privileges or Immunities Clause protects only federal citizenship rights and not rights that do not owe their existence to “the Federal government, its National character, its Constitution, or its laws.”

Even this narrow view would have allowed the broad panoply of fundamental rights such as property ownership, free assembly and a protection against cruel and unusual punishment to be granted to all Americans. Unfortunately, when the Court was given a chance to follow this argument to its logical conclusion in a subsequent case just eight years after the adoption of the 14th Amendment the Supreme Court inexplicably reversed course.

In a case called United States v. Cruikshank involving 65 blacks that had been brutally murdered by a white militia because they were participating in a peaceful assembly in front of a Louisiana Courthouse, the Court determined that neither their 2nd amendment rights nor their rights to public assembly were protected by the 14th Amendment. Denying the obvious, the Court ruled that these murdered men and women were wrong to assume that the “Privileges and Immunities” clause would offer them any protection. Tragically, the privileges and immunities clause remains in this “marginalized” state today.

Nevertheless, Justice Thomas argues that this provision should be given a fresh new look. In spirited fashion, Thomas calls upon the Court to reject the “Due Process” doctrine that allows the Courts to use its own discretion to determine which rights will be protected and which will not. We embrace Justice Thomas’ efforts and agree that the Court should instead recognize as Thomas asserts that “the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.”

Colin Hanna is the President of Let Freedom Ring.

Horace Cooper

Horace Cooper is a legal commentator and a Senior Fellow with the Institute for Liberty.