From Guns to Butter

As David Hardy shows in a recent Whittier Law Review article, this view was widely reported in the press and therefore was understood by the general public and by the state legislators who ratified the 14th Amendment. They perceived the amendment as a remedy for the oppressive policies of Southern states that sought to deprive freedmen of their basic liberties.

The right to weapons was one of the liberties frequently cited by the 14th Amendment's backers, since disarmed blacks were defenseless against attacks by Klansmen and local officials. As reflected in post-Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one's choice -- all freedoms the Southern states tried to deny former slaves.

Despite this context, in 1872 the Supreme Court declared that the "privileges or immunities of citizens" included only those rights that were created by the Constitution (such as the right to petition the federal government), not the pre-existing rights the Constitution was designed to protect. The Court therefore upheld a slaughterhouse monopoly created by the state of Louisiana, an infringement of economic liberty that the three dissenting justices saw as a violation of the Privileges or Immunities Clause.

Those privileges or immunities, the dissenters said, include "the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons." That view reflects the original understanding of the 14th Amendment, which holds great promise as a bulwark against arbitrary interference with economic freedom. The Supreme Court should seize this opportunity to revive it.