Interesting case in the US Supreme Court today! Not cigar related.

[PigFish]

Article taken from the CATO Institute. All legalese included (hopefully)

Revive "Privileges or Immunities" | Timothy Sandefur | Cato Institute: Commentary 3/2/10 9:48 AM

http://www.cato.org/pub_display.php?pub_id=11377 Page 1 of 3

Revive "Privileges or Immunities"

by Timothy Sandefur

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation. His book, The Right to Earn

A Living, will be published in September by the Cato Institute.

Added to cato.org on March 1, 2010

This article appeared in the National Law Journal on March 1, 2010.

One of the biggest cases the U.S. Supreme Court will decide this year involves the right to bear arms.

But in the long run, its decision in McDonald v. Chicago may be far more important to America's

entrepreneurs. It all depends on whether the justices decide to revive a constitutional provision it has

neglected for more than a century.

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the

Constitution, barring states from violating the "privileges or immunities" of citizens, or taking

anyone's life, liberty or property without "due process of law," or depriving people of the "equal

protection of the laws." But the first time it heard a case under that amendment — in the 1873

Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause,

dramatically limiting the way the federal government would protect people against wrongful acts by

state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere

in New Orleans except a single, privately owned facility. The beef industry was big business in New

Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued,

arguing that the law violated their right to earn a living without unreasonable government

interference. Judges had recognized that right as far back as 1602, when England's highest court

declared government-created monopolies illegal under the Magna Carta. The right to earn an honest

living came to be recognized as one of the fundamental rights — or "privileges and immunities" — in

the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new

amendment's language, federal courts would not guarantee traditional rights against interference by

states. With only minor exceptions, the Court declared, those rights were "left to the State

governments for security and protection."

The decision's ramifications were profound. In the years after the Civil War, Americans —

particularly in the South — needed protection against abusive state legislatures. That was the

protection the privileges or immunities clause promised, and that the Slaughterhouse decision

Revive "Privileges or Immunities" | Timothy Sandefur | Cato Institute: Commentary 3/2/10 9:48 AM

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eliminated. During the next decade, federal authorities abandoned Reconstruction efforts to protect

former slaves, and black Americans were condemned to another century of segregation and

oppression.

The "Rational Basis" Doctrine

The Court later backed away from the extreme states' rights position it took in Slaughterhouse.

Relying on the 14th Amendment's due process and equal protection clauses instead, it built the

"incorporation" doctrine that requires states to respect the Bill of Rights. But although these clauses

bar states from violating some freedoms or discriminating against –citizens in certain ways, states

remain free to intrude on the rights of entrepreneurs and property owners thanks to the "rational basis"

doctrine that the Court devised in the 1930s. That doctrine holds that certain rights — like freedom of

speech or religion — are accorded strong judicial protection, but other rights, including the right to

earn a living, receive almost none. Thus bureaucrats have nearly free rein to impose restrictions at

will on a person's economic freedom, even when those restrictions have no realistic connection to

protecting public safety.

That's where the gun cases come in. Last year, in Heller v. District of Columbia, the Court declared

for the first time that the Second Amendment guarantees an individual's right to possess firearms.

That case only applied to the federal government, because it involved a Washington ordinance, but it

was quickly followed by the McDonald case, which asks the justices to decide whether the 14th

Amendment requires states to respect that right also. The justices have also agreed to consider

whether that right should be protected by the privileges or immunities clause. A decision reviving that

dormant clause would signal a return to the amendment's original purpose. Better still, it would give

entrepreneurs a chance to defend themselves from the often burdensome and abusive regulations that

states now enforce with impunity.

That would be good news for people like Portland, Ore., businessman Adam Sweet, who started a

small moving business, only to discover that Oregon law required him to get a license first — and that

getting a license would require him to get approval from the existing moving companies.

Unsurprisingly, established businesses routinely blocked new competition, meaning that the state had

not issued a new license in two years. Such a law does nothing to protect the public — it only creates

a cartel that violates freedom, hinders fair competition and raises costs to consumers. Although Sweet

challenged the constitutionality of the restriction, the Slaughterhouse precedent meant he could only

ask for "rational basis" protection — that is, virtually no protection at all. Fortunately, the legislature

repealed the law before the court ruled. But similar laws remain in most of America's major cities.

In his dissenting opinion in Slaughter–house, Justice Stephen Field wrote that economic freedom "is

the fundamental idea upon which our institutions rest." But thanks to the elimination of the privileges

or immunities clause, hardworking entrepreneurs like Sweet have almost no constitutional protection

against state and local bureaucrats. At a time when America needs a resurgence of its entrepreneurial

spirit, a decision to restore the 14th Amendment's protections for economic liberty would be a

Revive "Privileges or Immunities" | Timothy Sandefur | Cato Institute: Commentary 3/2/10 9:48 AM

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welcome change.

[anacostiakat]

Yes this should be an interesting one for sure.

[Wiley]

Very interesting, thanks!

[Jesuscookies]

Cliff notes?

[tyler4178]

If the Court were to revive the Privileges or Immunities Clause, it would certainly be a fundamental shift--one I fully support.

Justice Thomas has been "screaming" for years the Court should overrule The Slaughterhouse Cases. So it is firmly settled where he stands on the subject. Justice Scalia is not far behind. I am unsure about J. Robert's view. The other Justices will probably not go that far.

Of course, the Court would have to reconcile its "Substantive Due Process" analysis as well. Substantive due process was the legal fiction the Court created to protect rights such as procreation, abortion, and other "fundamental privacy rights" once they realized that by deleting privileges or immunities clause, there was no constitutional way to extend protection to those activities. Thus, they invented the penumbras argument under substantive due process.

I can't wait for this opinion!

[Ken Gargett]

interesting indeed but a confession. i got half way through it and suddenly it felt like i was at law school again and all i could think about was grabbing some mates and heading to the pub for an arvo of poker.

[Nocoins]

Based on the transcript of the oral argument, it looks like the case will be decided under a 14th amendment substantive due process analysis, the ordinance will be invalidated, and the privileges and immunities clause will not factor into the decision. Justice Scalia was not very receptive to the idea of overruling the Slaughterhouse cases, nor was any other member of the Court who spoke.