4 The Scope and Incorporation of the Bill of Rights from the Civil War to the 1960s

The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution dramatically altered the nation’s legal and political landscape, though many of these changes would take decades to fully emerge.

Perhaps most importantly, these amendments made clear that threats to civil liberties and civil rights could come just as easily from one’s state government as from the federal government. Similarly, the Civil War and its aftermath—including the founding of the Klu Klux Klan and acts of violence that sought both to delegitimize often biracial Reconstruction governments and maintain white supremacy—made clear that many states were neither capable of nor willing to protect the rights and liberties of black citizens. Of particular importance to the protection of rights and liberties was the Privileges and Immunities Clause of the Fourteenth Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

What were these “privileges or immunities” that states were now obliged to respect? Despite almost 150 years of debate and historical analysis, there is no definitive answer.

One view was that, at a minimum, the clause’s authors had intended to incorporate or nationalize the Bill of Rights against the states, making the federal government the guardian of civil liberties where states refused to do so. This view has increasing support among contemporary legal scholars and historians and was openly supported by Justice Thomas in his concurring opinion in McDonald v. Chicago (2010). As adopting this interpretation required overturning longstanding precedent, however, his viewpoint was not supported by any other justice.

Another view, more consonant with the doctrine of dual citizenship seen in Barron, rejected any significant shift in power towards the federal government and narrowly defined “privileges or immunities” as something well short of the protections provided by the Bill of Rights.

The Reconstruction-era Court would adopt the latter view in the Slaughter-House Cases, an 1873 case involving a dispute between a group of butchers and the city of New Orleans.

New Orleans faced a public health problem: butchers who operated upstream of the city would frequently dump animal intestines and other waste products into the water, leading to pollution and illness. As many of the butchers operated outside the city limits, New Orleans appealed to the state legislature to act. It did so, creating a single slaughterhouse corporation downstream of the city that would rent out space to area butchers, who would be forced to close up their individual shops and use the monopoly’s facilities. Multiple members of the butchers’ trade association sued that the state’s actions violated their “right to make a living,” which they argued fell under one of the newly created “privileges or immunities” in the Fourteenth Amendment that states were bound to respect.

Slaughter-House was an extremely important and complex case in terms of the competing legal values and political outcomes at stake and had several different dimensions in play:

1. An economic rights dimension. It’s ironic that the first case involving the interpretation of the post-Civil War amendments examined not the civil rights of black Americans, but the asserted economic rights of white tradesmen. Their claim, which would gain more support from economic conservatives over time, was that the Fourteenth Amendment guaranteed freedom from arbitrary or unreasonable government regulations, a liberty that could trump the traditional power of a state’s exercise of its police powers to regulate health, morality, safety, and welfare. Such theories were sometimes grouped together under the label “liberty of contract.”

2. A racial dimension. Louisiana’s Reconstruction legislature was biracial; the butchers suing were exclusively white, and represented by a former justice of the Supreme Court who had resigned to join the Confederacy following the start of the Civil War. Importantly, the New Orleans monopoly permitted black butchers to use the corporation’s facilities on equal terms with white butchers, a decision that angered the latter group.

3. A special-interests dimension. The New Orleans slaughterhouse monopoly was owned and run by a set of wealthy and politically connected individuals. This fed into public opposition to the ruling, many of whom saw it as corruption contrary to the public interest (which, at the time, was defined by the butchers as protecting blacks at the expense of whites).

The Court’s opinion navigated through these concerns. The Court rejected the butchers’ argument that the Fourteenth Amendment protected their economic interests, though their argument (supported by Justice Field’s dissenting opinion) would later gain strength and be adopted by the Court in the 1890s. The Court also upheld the police powers of Louisiana’s Reconstruction legislature while dramatically circumscribing the scope of the Privileges or Immunities clause and rejecting the nationalization of the Bill of Rights. The Court’s decision in the Slaughter-House Cases closed the door on incorporation for several decades and, along with the Civil Rights Cases, was a severe blow to Reconstruction and to the cause of civil rights.

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Slaughter-House Cases

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83 U.S. 36 (1873)

Facts: Concerned about sanitation and disease outbreaks caused by slaughterhouses upstream of city limits, New Orleans convinced the Reconstruction Louisiana legislature to grant a slaughterhouse monopoly to a downstream franchise corporation that would rent space and facilities in a space downstream from the city. All other slaughterhouses would be forced to close. Many affected butchers banded together to sue the state, arguing the monopoly violated their right to make a living under the Privileges and Immunities Clause of the Fourteenth Amendment as well as constituting “involuntary servitude” under the Thirteenth Amendment.

Question: Did New Orleans’ state-granted slaughterhouse monopoly violate either the Thirteenth or Fourteenth Amendments?

Vote: No, 5-4

For the Court: Justice Miller

Dissenting opinion: Justice Fields

JUSTICE MILLER delivered the opinion of the court.

… The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States … This is called the police power … upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private social life, and the beneficial use of property…

The plaintiffs in error, accepting this issue, allege that the statute is a violation of the Constitution of the United States in these several particulars:

That it creates an involuntary servitude forbidden by the thirteenth article of amendment;

That it abridges the privileges and immunities of citizens of the United States;

That it denies to the plaintiffs the equal protection of the laws; and,

That it deprives them of their property without due process of law, contrary to the provisions of the first section of the fourteenth article of amendment.

This court is thus called upon for the first time to give construction to these articles…

… Hence, the thirteenth article of amendment of that instrument [the Constitution]. Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated:

1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government — a declaration designed to establish the freedom of four millions of slaves — and with a microscopic search endeavor to find in it a reference to servitudes which may have been attached to property in certain localities requires an effort, to say the least of it…

.. no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him…

We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican of Chinese race within our territory, this amendment may safely be trusted to make it void… But what we do say, and what we wish to be understood, is that, in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy…

The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States… it had been held by this court, in the celebrated Dred Scott case … that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States…

To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States…

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual…

We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.

The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and, with a purpose…

Its [the Privileges and Immunities Clause] sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction…

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

… such a construction … would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment… But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them…

But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its national character, its Constitution, or its laws: …

“to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.”

… Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government… The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State…

… “Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.”

In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this [Equal Protection] clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden…

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights, the rights of person and of property was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation…

JUSTICE FIELD, dissenting.

… It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State… But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment…

The question presented is, therefore, one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment, the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it…

The first clause of this amendment determines who are citizens of the United States, and how their citizenship is created. Before its enactment, there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number, the opinion prevailed that there was no such citizenship independent of the citizenship of the State…

The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry…

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage…

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

… The terms “privileges” and “immunities” are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell, Mr. Justice Washington said … that… that they might be:

all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.

This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments… It was cited by Senator Trumbull with … the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth “as appertaining to every freeman.”

.. What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If, under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment, the same equality is secured between citizens of the United States…

.. So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments in the pursuit of the ordinary avocations of life been regarded that few instances have arisen where the principle has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactment interfering with the privilege of the citizen has been pronounced illegal and void…

JUSTICE BRADLEY, also dissenting.

I concur in the opinion which has just been read by Mr. Justice Field, but desire to add a few observations for the purpose of more fully illustrating my views on the important question decided in these cases, and the special grounds on which they rest…

… The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country, and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen’s place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein…

If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States…

Every citizen, then, being primarily a citizen of the United States, and, secondarily, a citizen of the State where he resides, what, in general, are the privileges and immunities of a citizen of the United States? Is the right, liberty, or privilege of choosing any lawful employment one of them?

… This seems to me to be the essential question before us for consideration. And, in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of his most valuable rights, and one which the legislature of a State cannot invade, whether restrained by its own constitution or not…

Lastly: can the Federal courts administer relief to citizens of the United States whose privileges and immunities have been abridged by a State? Of this I entertain no doubt. Prior to the fourteenth amendment, this could not be done, except in a few instances, for the want of the requisite authority.

… except in a few specified cases, for any interference by the General Government between a State and its citizens, the protection of the citizen in the enjoyment of his fundamental privileges and immunities (except where a citizen of one State went into another State) was largely left to State laws and State courts, where they will still continue to be left unless actually invaded by the unconstitutional acts or delinquency of the State governments themselves…

In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section…

The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and our duty are plain and imperative…

It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.

The mischief to be remedied was not merely slavery and its incidents and consequences, but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestation…

But great fears are expressed that this construction of the amendment will lead to enactments by Congress interfering with the internal affairs of the States, and establishing therein civil and criminal codes of law for the government of the citizens, and thus abolishing the State governments in everything but name; or else, that it will lead the Federal courts to draw to their cognizance the supervision of State tribunals on every subject of judicial inquiry, on the plea of ascertaining whether the privileges and immunities of citizens have not been abridged.

In my judgment, no such practical inconveniences would arise… But even if the business of the National courts should be increased, Congress could easily supply the remedy by increasing their number and efficiency. The great question is what is the true construction of the amendment? When once we find that, we shall find the means of giving it effect. The argument from inconvenience ought not to have a very controlling influence in questions of this sort. The National will and National interest are of far greater importance.