Jeremiah Black And The Wrecking of The Fourteenth Amendment

The first Supreme Court case to interpret the Fourteenth Amendment was the 1873 Slaughter-House Cases, in which a group of Louisiana butchers challenged the constitutionality of a state law requiring that all slaughtering be done at a single, privately-owned abattoir. They argued that this law deprived them of the right to earn a living without the interference of government-created monopolies—a right recognized by English and American courts since the early seventeenth century, and that was among the “privileges or immunities” the new Amendment secured against state infringement. Unfortunately, the Court ruled against them, and essentially erased the Privileges or Immunities Clause from the Constitution.

Much has been written on the various things Slaughter-House got wrong. But my focus in chapter 2 of The Conscience of The Constitution is on how that decision ignored the central purpose of the Fourteenth Amendment. The Amendment was designed to implement the anti-slavery constitutional vision of paramount national citizenship. That conception, derived from the principles of the Declaration of Independence, held that national citizenship took priority over state citizenship; that natural and common-law rights of all Americans were secured to them by virtue of their national, not their state, citizenship; that all deserved federal protection against interference by state governments. The Amendment would deal the death-blow—so its authors hoped—to the antebellum States Rights ideology which held that state governments were sovereign; that their sovereignty was not bound by the principles of the Declaration; that states possessed, in William Blackstone’s words, “supreme, irresistible, absolute” power to do “anything that is not naturally impossible.” The anti-slavery constitutionalists believed this States Rights model had always been an incorrect reading of the Constitution; their new Amendment would settle the question once and for all.

One of the leading spokesmen for the States Rights model was a prominent “doughface” Democrat named Jeremiah Sullivan Black. Black had served as Chief Justice of the Pennsylvania Supreme Court, and while there he had issued a fascinating decision called Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853), which endorsed the Blackstonian vision of sovereignty. When the United States declared independence, Black wrote, Parliament’s “transcendant [sic] powers” were transferred to the states, who now enjoyed “supreme and unlimited” authority. This meant that “[i]f the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat.” Although he conceded that the states had given up some of this limitless power to the federal government, Black held that they retained “a vast field of power…full and uncontrolled,” and their use of that power “can be limited only by their own discretion.” States could do whatever was not expressly prohibited in their own constitutions, without regard to principles of justice or the purposes for which the people establish government and entrust it with power.

Justice Ellis Lewis disagreed:* the idea that states possess “all the powers of sovereignty not expressly withheld from them” was a legacy of the “absolute despotisms of the old world,” and could not apply in a free state where government exercised delegated, limited powers. Only despots believed that government was limited only by “the arbitrary will of usurping tyrants.” A constitution, by contrast, imposes laws on rulers, in order to protect individual rights. Those rights took precedence over the majority’s authority to rule; the legislature could not claim unlimited power to redistribute property or restrict other individual rights, because this would contravene the very reasons for establishing government in the first place. Black’s analogy to the Russian Czar was singularly wrongheaded. The state, Lewis wrote, “has no more right to abandon the liberty and prosperity of any portion of her citizens to the will of others than she would have to transfer them to a Russian or an Austrian Despot.”

Chief Justice Black left the Pennsylvania Supreme Court when he was appointed to serve in the cabinet of his fellow Pennsylvanian, James Buchanan. There, he continued to argue the States Rights position and to oppose the anti-slavery constitutional theory of paramount national citizenship. “Sovereignty,” he wrote in a magazine article (attacking Stephen Douglas for being soft on States Rights!), “is in its nature irresponsible and absolute…. Mere moral abstractions or theoretic principles of natural justice do not limit the legal authority of a sovereign. No government ought to violate justice; but any supreme government, whose hands are entirely free, can violate it with impunity.” After the war, Black continued to argue that the states “were sovereign before they united,” and that they retained “all the sovereign rights not granted in the [Constitution to the federal government].” The notion that national citizenship was paramount, and that it guaranteed natural or common-law rights to all Americans, was “inserted in the creed of the abolitionists because they supposed it would give a sort of plausibility to their violent intervention with the internal affairs of the states.”

Black did not stop after the Civil War ended and the Fourteenth Amendment officially repudiated his States Rights ideology. After he helped draft President Johnson’s veto of the Civil Rights Bill and served as counsel for Johnson during his impeachment, Black took up the cause of litigating against Reconstruction. His great opportunity came when he was asked to represent the state of Louisiana in The Slaughter-House Cases.

Slaughter-House was the Court’s first opportunity to enforce the principles of paramount national citizenship. The Court was asked to protect the right to earn a living—long recognized as among the natural and common law rights—against interference by the state. But the Court refused, and the reason was that Justice Samuel Miller and his colleagues were unprepared to give effect to what they saw as a radical change in the Constitution’s federalist structure. “[U]p to the adoption of the recent amendments,” wrote Miller,

no claim or pretence was set up that [constitutional] rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States…. [Instead,] the entire domain of the privileges and immunities of citizens of the States…lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment…to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government…[and] to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

The answer to this question was an emphatic yes. It was true, of course, that “up to the adoption of the recent amendments,” the system had been different—that’s just why the Amendment had been written: to make clear that this was no longer the case. Yet Miller—who nowhere cited or referred to the debates surrounding the Amendment, or to the pre-war legal arguments about sovereignty, citizenship, and the role of natural rights—could simply not imagine that the Amendment meant what it said. And that was the end of it for Miller.

Jeremiah Black’s niece was proud of this victory for States Rights ideology. In her 1887 memoir of her uncle, she boasted that “the modification and at length the practical abandonment” of Reconstruction “was in no small measure due to the merciless assaults of Judge Black.” Slaughter-House’s withdrawal of the federal protections promised by the Fourteenth Amendment was a calamity for civil rights, and, along with similar rulings, it prepared the way for the practical re-establishment of slavery. And the Court’s refusal to enforce the privileges or immunities of American citizens—which persists to this day—means that states are still allowed to deprive citizens of many crucial constitutional rights, including the right to economic liberty at issue in Slaughter-House itself.

*-In the 1850s, the Pennsylvania Reports did not publish dissenting opinions. The dissents in Sharpless can be found in volume 2 of the American Law Register for 1854.