There's a story about a white unionist in the south, who's support for newly freed blacks angers his neighbors.
They come over one night and basically tell him to shut up.
When he refuses they take him outside, tie him to a tree and horsewhip him and they tell him
That if they have to come back they're gonna hang him from that same tree.
But the man had nowhere to turn because the south at this time was a place of lawless tyranny.
The 14th amendment was designed to stamp out that tyranny
By requiring government officials to respect the basic civil rights of all Americans.
The period following the civil war was marked by shocking abuses of individual rights
And by a constitutional amendment, the 14th amendment, designed to halt those abuses.
The seeds of those events were contained in our founding documents, including the Declaration of Independence.
The declaration of independence was a promise of limited government
Based on individual rights and the ideals of the enlightenment.
And the story of the American Consitution and especially the 14th amendment
Is really the story of our trying to live up to that promise.
Of course, the lofty ideals in the Declaration of Independence and the Constitution cannot be reconciled
With the abomination of slavery. The tacit approval of which set us on a path to disaster from day one.
The constitution's failure to resolve the question of slavery gave rise to a furious national debate.
Some people, like senator John Calhoun, argued that the Constitution's references to slavery
amounted to a tacit endorsement.
Others, like the radical legal scholar, Lysander Spooner, argued exactly the opposite
That the Constitution presumed all men were free making slavery impossible.
So in public, there were two sides: The anti-slavery camp. arguing that the Constitution
Presupposed that people were free and that this was totally irreconcilable with the idea of slavery.
And you had the pro-slavery camp. arguing almost exactly the opposite
Unfortunately, in the courts, the pro-slavery side won an almost unbroken series of victories.
For example, anti-slavery activists had argued that the bill of rights automatically bound the states
But the supreme court rejected that position in a case called Baron v Baltimore.
Holding that the bill of rights only affected the federal government.
Later on in a case called Dred Scott v Sanford the court in an opinion by Chief Justice
Roger Taney, not only rejected the anti-slavery position that the privileges and immunities clause in
Article 4 protected individual rights but actually went so far as to hold that the black man
had no rights, that "The white man was bound to respect."
Over the course of the debates about slavery in America what you really see is a movement
That started out as an anti-slavery movement, really changed into a movement much more
Radical and much more broadly devoted to the protection of natural rights ranging from
Free speech to the right to control one's own labor. Part of that is due to the influence of
Intellectuals, like Lysander Spooner, or Joel Tiffany but part of that is just a reaction to the
Horrible abuses of natural rights that abolitionists saw in the pre-war south and
Immediately after the civil war. In the aftermath of the civil war newly freed blacks
Were systematically terrorized, disarmed and even lynched for asserting their right
to equality and individual liberty.
The stories of violence perpetrated against newly freed blacks are truly horrifying.
For example, Robert Church, a black entrepreneur in Memphis Tennessee
Actually one of the first major black entrepreneurs anywhere in the reconstruction south
Owned a saloon and several other businesses around Memphis. He was wildly successful
He was beloved by the community and in 1866 an angry mob of white people,
Largely led by members of the local police force, broke into his saloon,
Dragged him into the street, shot him and left him for dead, all because
He was in a business they thought a black man shouldn't be in.
By the time congress convened in 1866 anti-slavery republicans dominated both houses
Led by men, like John Bingham in the house, along with senators Charles Sumner and
and Jacob Howard radical republicans enjoyed complete control of congress
They have the power to amend the constitution and they are determined to use it.
They were faced with an unending series of abuses in the reconstruction south
State and local governments had responded to the new 13th amendment ban on slavery
By trying to deprive newly freed slaves and their white supporters of any needful freedom
Especially economic freedom.
Economic liberty, the right to pursue a livelihood of your own choosing and to keep the money you
Earn was the opposite of slavery and the real opportunity for freed slaves
To lead a free life. The pro slavery forces knew this, so in the south freed slaves weren't just banned
From pursuing particular occupations but in some places it was actually illegal for black people
To leave their employer's property without written permission.
In others, breaking a labor contract was punished by whipping. The 14th amendment was
Supposed to stop rights violations like these.
One of the rights most frequently mentioned in connection with the 14th amendment was
The right to keep and bear arms. Congress was well aware of the fact that newly freed
Blacks and White Union soldiers were being systematically disarmed throughout the south
In order to subjugate and terrorize them. For example, Congress heard testimony about a
Town in Kentucky where the town Marshal was "Very prompt to take arms away from all of the
returning black soldiers and to shoot them whenever the opportunity arose."
The 14th amendment was proposed in response to this wholesale violation
Of civil rights as embodied, for example, in the notorious black codes.
The architect of the 14th amendment, John Bingham, was a learned and well respected lawyer
from Ohio.
Bingham actually appears to have been one of the few members of Congress who understood
That by virtue of the supreme court's decision in Barron v Baltimore,
The bill of rights did not apply directly against the states. In fact,
Bingham had to bring a copy of Baron onto the floor of the house to prove that the bill of rights
Had no affect against the states. John Bingham believed there was a hole in the
Original constitution, which was that it didn't give the federal government the power to protect
individual rights from interference by the states.
The fourteenth amendment was Bingham's effort to fix that.
The 14th amendment protects three distinct interests: due process, equal protection, and
the privileges or immunities,
Meaning rights, of United States Citizens. Of those three, privileges or immunities
Are, by far, the most important because that clause protects individual rights from
Government Infringement.
In 1872, the Supreme Court had its first opportunity to interpret the privileges or immunities clause.
In a case called Slaughterhouse. Handed down in 1873, the Slaughterhouse cases
Essentially read the privileges or immunities clause right out of the 14th amendment
In the Slaughterhouse cases justice Samuel Miller, writing for a bear majority of the court
Held that the privileges or immunities clause protected only a limited and relatively trivial set
Of, so called, rights of national citizenship, such as the right to access navigable waterways
And federal sub treasuries and to invoke the protection of the federal government when on the high seas.
This was an utterly absurd reading of the privileges or immunities clause.
No one thinks we fought a civil war and amended the constitution
Because someone, somewhere had difficulty accessing a sub treasury
And no one thinks that today. There is virtually unanimous agreement
Among constitutional scholars that the Slaughterhouse majority's interpretation
Of the privileges or immunities clause is completely indefensible.
Taking their cue from the supreme court's refusal to enforce the 14th amendment consistent
With its text, purpose and history the states responded by expanding the existing black
Codes into the formal caste system of Jim Crowe. Blacks and Whites alike were subject to a
Host of regulations designed to prevent newly freed blacks, or Freedmen as they were
Called, from becoming economically self sufficient members of society. This unrelenting
Assault on liberty finally forced the supreme court to reconsider its understanding of the
14th amendment. Having effectively eliminated the privileges or immunities clause as a
Meaningful part of the constitution the court eventually began protecting individual rights
Through a doctrine called substantive due process. That has a historical pedigree that dates
Back to the Magna Carta, that the supreme court's use of substantive due process to do a job
For which the privileges or immunities clause was designed has resulted in a patchwork
And incomplete juries-prudence of liberty. Some rights the 14th amendment was supposed
To protect, like freedom of speech, ended up protected anyway, but others like economic
Liberty, or the right to own a gun just got ignored and waived away.
On any fair reading there is not the slightest doubt that the 14th amendment protects an
Individual right to own a gun for self defense. So why did it take the supreme court nearly
150 years to recognize that right and then by a margin of only one vote? The second
Amendment says, "The right of the people to keep and bare arms shall not be infringed."
Despite that clear language, it took a carefully planned public interest lawsuit, which I
Helped design and litigate, District of Columbia v Heller, to finally persuade the Supreme Court
To interpret the second amendment as protecting an individual right to own a gun.
But because the District of Columbia is a federal jurisdiction, to which the bill of rights
Applies directly, Heller left open the question of whether the 14th amendment protects the
Right to own a gun from interference by state and local officials and if so, how?
That was the question the supreme court took up two years later in McDonald v City of Chicago.
Faced with this question in McDonald the supreme court split into three caps.
Four of the justices wanted to use the traditional substantive due process method
To find that the right to keep and bare arms was fundamental and should therefore
Be applied against the states. Another group of four justices wanted to use substantive due process
To say that the right to keep and bear arms was not fundamental and therefore shouldn't apply.
The deciding fifth vote fell to justice, Clarence Thomas.
Justice Thomas makes such a powerful case for the privileges or immunities clause in his
McDonald concurrence that none of the other justices in the plurality or the descent
challenge his reading of the relevant history or his conclusion that the right to own a gun
is a privilege or immunity of American citizenship.
The 14th amendment, and especially the privileges or immunities clause was a really
Radical change to the constitution. It was supposed to give the federal government and
Especially the federal courts, the power to protect rights that had been historically
Trampled by state and local governments. One of these fundamental rights was the right to
Earn an honest living, but for its entire existence the privileges or immunities clause has
Been a dead letter. McDonald starts to change that.
In the wake of McDonald, the privileges or immunities clause is relevant, is alive in ways
It simply hasn't been since it was adopted. And in coming years as law students sit down
To read the different opinions of McDonald, it's going to become clear that only one of
Those opinions really tries to grapple with the constitutional history, really tries to
grapple with the role the 14th amendment plays in our constitutional structure and that's
going to make an enormous difference.
The 14th amendment was a promise. It was a promise to the people of this country of
Limited government and respect for individual rights. But that promise was broken almost
Immediately by the supreme court's redaction of the privileges or immunities clause from
The fourteenth amendment. The institute for Justice has been working for twenty years to
Restore the privileges or immunities clause, to restore the concept of individual liberty to
Its proper place in the constitution and its proper place in our society.