Juliette Sellgren 

Hi, my name is Juliette Sellgren, and this is my podcast, the Great Antidote. This podcast has been brought to you by the Center for Growth and Opportunity at Utah State University. To learn more, visit www.thecgo.org.

Hi, welcome back. Today, I'm delighted to welcome Randy Barnett. He's a professor of constitutional law at Georgetown University where he teaches constitutional law and contract and is the director of the Georgetown Center for the Constitution. This is Randy's second time on this podcast and I'm excited to have him back. I really am excited today to be talking about the 14th Amendment of the Constitution. This amendment is such a big deal in matters, seeking to end discrimination against individuals based on race, religion, gender, sexual orientation, and other statuses. And I think it's probably one of my favorite amendments, yet so many people know little to nothing about it and Randy's coming out with a book in November about it, and so I'm excited to welcome you. So welcome to the podcast.

Randy Barnett 

Well, thanks for having me back.

Juliette Sellgren (1.29)

By the way to prepare for this interview. I have been listening to your lectures on these issues, but I also have been using your book, Introduction to Constitutional Law, 100 Supreme Court Cases that Everyone Should Know, and everyone, you should know them, go read that book. But before we jump into the 14th Amendment, what is the most important thing that people my age or in my generation should know that we don't?

Randy Barnett

About the Constitution or about the 14th Amendment?

Juliette Sellgren 

Just in general? Anything…

Randy Barnett (2.05)

Anything, anything. Well maybe that the Constitution is the law that governs those who govern us. The Constitution is not the law that governs us. The Constitution is the law that governs those who govern us, and those who govern us should no more be able to change the law that governs them than we can change the laws that they make to govern us without going through, in our case the legislative process and in their case through the amendment process. So essentially what that means is that the meaning of the Constitution should remain the same until it's properly changed by amendment.

Juliette Sellgren (2.41)

And that seems to be a lot of the issue that we see with the 14th Amendment with a lot of things is that in the courts, especially the Supreme Court is trying to figure out whether enumerated rights or enumerated rights are the ones that are protected by X Amendment, 14th amendment or anything. And we'll get into that, but that is super important to know and I've been learning that slowly but surely and I think it's very good point. Okay, so let's set the stage. We have to talk about essentially citizenship in America before 1868, which is the year that the 14th Amendment was ratified. So that means talking about Dred Scott in 1857, the 13th Amendment, and the Civil Rights Act of 1866. So can you explain how these three things and just conditions in general led to the need for the 14th Amendment?

Randy Barnett (3.49)

Sure. Well, the Dred Scott Case, which was a decision of the Supreme Court, a majority of the Supreme Court in a seven to two decision ruled a number of things, but one of the things it ruled was that even free African-Americans who had descended from slavery but who were now free could not, were not citizens of the United States and could never be citizens of the United States. And one of the arguments that was used by Chief Justice Tawney in his infamous opinion in that case to justify that conclusion was that if they were citizens of the United States, then they would be entitled to all the privileges and immunities that citizens of the United States enjoy among which are the right to go wherever they wish, whenever they wish to speak on public matters or to keep and carry arms wherever they want to go. These were all what just Chief Justice Tawney said, privileges of American citizenship, national citizenship.

And then he argued that there's no way that at the founding, the founders, especially the southern states would've agreed to a constitution in which free blacks had those rights. And that's one of the reasons why on semi-originalist grounds, he argued that the Constitution should not be interpreted as giving free African-Americans those rights. And he also argued that the Declaration of Independence, he said though if written today would apply to everyone, didn't apply to everyone at the founding because it didn't apply to Free Blacks for this reason, because to say that they were equal would've meant they had rights that southern states would never have agreed to when they were joining the union. So it was a very infamous opinion, but it actually gave rise to essentially two different, it didn't give rise to it, but it contributed to two different developments that had already been developing before this in the debate between anti-slavery, constitutionalists and pro-slavery forces.

And that is one, that there is such thing as national citizenship as distinguished from citizenship in your state. It's not clear that that was a concept that preexisted Dred Scott, that there's such a thing as national citizenship preexisted Dred Scott in the Supreme Court. At any rate that there's these two separate types of citizenship and number two, that national citizenship carries with it fundamental privileges and immunities what we would today call fundamental rights as opposed to merely a right, against being discriminated against when you travel through another state, which was the prevailing meaning of the privileges and immunities clause in Article four. So by creating this bifurcation between national citizenship and state citizenship and arguing that national citizenship have these fundamental rights, it set matters up for what happened later when the Republicans were then in control of Congress after the start of the Civil War and after its conclusion of the Civil War and they were getting about the business of protecting the freedmen both by enacting statutes, civil rights acts like the Civil Rights Act of 1866 and constitutional amendments like the 13th, 14th, and 15th amendments really fast.

Juliette Sellgren 

What is the privileges and immunities clause again? What does it say?

Randy Barnett (7.18)

Well, there are two privileges and immunities clause. There's one that says privileges and immunities and that's in Article four. And then there is one that says privileges or immunities, which is in the 14th amendment. And so they're not identical. The privileges and immunities clause in Article four in the original constitution says that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Lemme say that again. The privileges of the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. You'll notice that that clause doesn't say anything about national citizenship or state citizenship itself. It doesn't say there's a separate category called national citizens. It just has citizens of each state shall be entitled all privileges and immunities of citizens of the several states. Now that provision was held from the founding up until through the Civil War that was held by court.

In fact, even today that provision has held as what you might call what's called a comity club- not comedy in haha, but comedy at C-O-M-I-T-Y clause- which basically said that each state gave comity or equal treatment to citizens from other states, so that if you're traveling, if you're a citizen of Virginia and you're traveling through Maryland, Maryland cannot discriminate against you on behalf of its own citizens with respect to let's say your fundamental rights. So it's an anti-discrimination against out-of-staters provision. That is probably what the original meaning of the clause was. It is certainly what the prevailing view of the courts were. But leading up to the Civil War, leading up to Dred Scott, both anti-slavery advocates and pro-slavery advocates started reading the clause as though it were a protection of fundamental rights clause that it basically said that the fundamental rights of citizens in parentheses of the United States shall not be denied by citizens by various states.

And so this was probably in conflict with the original meaning, but anti-slavery, people started to argue that. And then pro-slavery, people also started to argue that, and in fact they argued that because they had a fundamental right or their right to their property, which was in this case their claim of property over enslaved people because they had that right then they should not be deprived of their fundamental rights when they're traveling in another state regardless of whether that's a free state or not a free state, which is by the way, something else that Dred Scott talked about. The other part of the Dred Scott ruling was to hold that the fundamental right of property that's protected by the due process of law is denied. If a slave holder goes into a territory, a free territory and is deprived of his property and his slaves, that's a deprivation of the due process of law according to Chief Justice Tawney.

So in a sense, both sides started arguing that the privileges and immunities clause was not merely a non-discrimination clause against out-of-staters. It was what you would call a fundamental rights clause that said states shouldn't violate the fundamental rights of US citizens. Now that brings us to the 14th Amendment. After the Civil War, the 13th Amendment gets enacted to abolish slavery. Congress then gets empowered by section two of the 13th Amendment to put into effect or to enforce the provision of the 13th Amendment. And as part of its enforcement power, it passes the Civil Rights Act of 1866, which protects certain fundamental rights. First of all, it says that all persons born in the United States are citizens of the United States. It says it in the statute and then which is contrary to Dred Scott. So you see a statute is now trying to reverse Dred Scott.

You can see that might be a problem, the Supreme Court. And then it says that there are these certain fundamental rights which it lists including the right to make and enforce contracts and the right to sue and be sued and the right to the protection of the laws that there are these fundamental rights that no citizen of the United States can be deprived. That statute gets vetoed by President Andrew Johnson, who succeeded at Abraham Lincoln after Lincoln's assassination, and he vetoes it on the grounds that it's beyond the scope of Congress's enforcement powers of the 13th Amendment. He says, slavery has been abolished, it's not coming back. Congress can't basically police against this kind of discrimination. That's not slavery, therefore Congress is not in power to do that. Now Johnson's veto gets overridden by super majorities of Republicans in Congress because the Democrats have not yet come back to Congress and when they come back to Congress they say they're going to repeal the Civil Rights Act of 1866.

That's one of the things that they wanted to do, but Congress overrides the President's veto, but there are some Republicans who are concerned about whether in fact they do have power to pass this to Civil Rights Act under their 13th Amendment enforcement power. And the person that is most concerned about this is a man named John Bingham and it is John Bingham from Ohio, Congressman from Ohio who writes what becomes most of section one of the 14th amendment that we know today, and he's the one that pushes for it. He proposes it and they push for the 14th Amendment for two reasons. One is to protect the rights. Well first is to give Congress the explicit power to pass civil rights laws like the Civil Rights Act of 1866 and that would respond to Johnson's argument that they didn't have the power. But the second thing was to enshrine the rights in that act as well as other rights into the text of the Constitution itself, so that future congresses couldn't repeal that law the way Democrats had vowed to do once they came back to Washington and once they came back to Congress.

And that's why there's a privileges or immunities clause in the 14th Amendment and that clause says that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. You'll notice that that formulation is what anti-slavery proponents said. The privileges and immunities clause of Article four was even though they were probably wrong about that, they were probably wrong about Article four, they then put into the Constitution what they thought the privilege immunities clause should be, the privileged immunities protection should be, and that's how we got that protection in the 14th Amendment.

Juliette Sellgren (14.01)

Is there a difference between the privileges and immunities versus privileges or immunities? Does it both mean the same thing or is it they both mean the same thing?

Randy Barnett (14.11)

The only reason one says and one says or is because one is a positive affirmation and the other one is a negative denial. The first one is positively affirming. You have privileges and immunities. The second one is saying you may not be deprived of your privileges or immunities. There's no difference in substance. The grammatical difference, the wording difference just reflects that One was a positive affirmation and the other one was a negative prohibition, and so the language got changed accordingly.

Juliette Sellgren 

Alright, I've been wondering about that for the longest time. 

Randy Barnett 

Well, I'm here to clear up these wonderings that you may have.

Juliette Sellgren (14.55)

Thank you. So what other parts of the constitution does the 14th amendment echo? Because the two privileges or immunities privileges and immunities are related. What other parts of the Constitution can be seen as reflected in the 14th amendment?

Randy Barnett (15.17)

Well, the parts of the Constitution that restrict state power in Article one talk about no state shall do this and the First Amendment says Congress shall not make any law. There's a famous case, there was a famous case called Barron versus Baltimore decided by John Marshall in which it was argued that the Fifth Amendment right to the Fifth Amendment prohibition on takings without just compensation applied to the states basically applied to the city of Baltimore, is what the Baron versus Baltimore was about. And John Marshall denied that and he said that any of the rights in the first State amendments did not apply to the States. And had they applied to the states, Congress would've used the same language. They used to restrict the state's rights in Article one, which basically talked about no state shall do this and no state shall do that. So when John Bingham was well aware of that opinion, in fact he had to tell his colleagues about the opinion of Barron versus Baltimore because they didn't know about it. Not all of them knew about it themselves. When Bingham went to draft the amendment, he consciously mirrored, he consciously copied the language of Article one, section 10, here's article one, section 10, how it begins. No state shall enter into any treaty, alliance or confederation grant letters of mark and coin money.

No state shall without the consent of Congress lay an impose or district. So you notice this, no state shall language, third paragraph, no state shall without the Congress of the United States lay any duty of tonnage, et cetera, et cetera, et cetera. So Bingham took the no state shall language from Article one, section 10 that John Marshall said, the framers of the first State Amendments would have used if they had meant to limit state power. And he consciously took that language to say, we do mean to limit state power. We're going to use the language that John Marshall said we should use the language from Article one, section 10.

Juliette Sellgren (17.30)

That's fascinating. I had no idea. That's also good. I would say protections against state governments is important as well. So can we talk about the Slaughterhouse Cases? This is kind of in my eyes, the beginning of this period of time where the Supreme Court kind of guts the 14th Amendment. So what happened in that case and what did it do to the 14th Amendment?

Randy Barnett (17.59)

Right. Before I say that, let me just second what you just said about restricting state governments. In the original constitutional scheme, there were very few restrictions on state governments. I just read you the beginning of three paragraphs that had a bunch of restrictions, but they were very few, none of them generally protected the liberties or the fundamental rights of their citizens from their own state governments. Most of those protections, most of those limitations were you might call federalism protections. They're basically saying State government should not be doing what the federal government is doing. They should get hands off certain things that the federal government should be doing. That's what most of those are. And that turned out to have been sort of a fundamental defect in the original constitution. There were constraints on the federal government, but there were virtually no constraints on the states.

The reason for that was at the time of the founding, the states were thought of very fondly and the states were thought of as the best means of protecting the rights of the people. And the federal government was greatly feared as being a potential tyranny, a potential despotism that really needed to be guarded against, and the states were going to be the guardian of liberty against an overweening federal power. Well, the other thing that the federal constitution allowed, the federal Constitution allowed so much power to states that states could authorize some of their citizens to own other persons in their jurisdiction. That's how much power states had. They could sanction the owning of one individual by another individual of one human being by another human being. That's a heck of a lot of power, and that was part of the original defect of the Constitution to give states that much power and it was done for a variety of reasons, building up to the Civil War.

That power came to be contested by anti-slavery, constitutionalists and other anti-slavery activists culminating in the Civil War where states turned out to be the engines of oppression as opposed to the champions of liberty. And so our constitutional order was then fundamentally changed with the 13th, 14th, and 15th Amendments, but especially with the 14th Amendment to provide now for the first time robust protections, robust federal constitutional protections of people's fundamental rights against their own state governments. But then what happened in the slaughterhouse cases and other cases like United States versus Cruikshank and eventually Plessy versus Ferguson, what happened in these cases was a repudiation by the court using living constitutionalist forms of argumentation and with a touch of framers, intentions, formulations to gut this change. In part, I think because many of the judges didn't like it, they didn't like this fundamental change to our federalism. They liked the federalism they had before and thought, look, the Civil War has been fought, slavery has been abolished.

We can go back to the federalism we had before and cooler minds will prevail, and they didn't care for this fundamental structural change in the Constitution. As a result, the Supreme Court, again using Living Constitutionalist reasoning basically just eliminated this provision from the Constitution and it didn't start coming back for quite some time after that. Should we talk about the slaughterhouse cases in particular now? Yes, yes. Alright. Well, this is a case that was decided by the Supreme Court in 18 73, 5 years after the 14th Amendment was enacted. It did not involve African-Americans, at least not directly. It involved white butchers in Louisiana who were challenging a law that required them to do business, to do their butchering, their slaughtering in a centralized slaughterhouse that would be franchised or chartered by the state of Louisiana. And given a monopoly over all slaughtering within the general jurisdiction of New Orleans, within New Orleans Parish, they protested and argued that being forced to do business with this monopoly and to perform their slaughtering under these monopoly conditions violated the privilege, their privileges or immunities of citizens of the United States.

And that brings in the privileges or immunities clause, which says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. They said, among those privileges or immunities is the fundamental right to pursue a living, to pursue an honest living or pursue a trade. This was, I think, one of the privileges of citizenship, but you notice it's not mentioned in the text of the Constitution, and so it's not an enumerated, right? It was not a right in the first aid amendments or what we call the Bill of Rights, but they asserted this right was fundamental and what a majority of the Supreme Court said in a five to four decision, they said that the right to pursue a lawful occupation was not among the privileges or immunities of national citizenship. They essentially flipped Dred Scott, their reasoning flipped Dred Scott, because you remember under Dred Scott what Chief Justice Tawney said, Hey, look, all these important fundamental rights belong to national citizens and that's why African-Americans could never have been considered even free African-Americans could never have been considered citizen of the United States, or they'd get all these fundamental rights in slaughterhouse.

Now the Supreme Court turns it around and says, no, this fundamental right to pursue a lawful occupation and all these other fundamental rights, these are rights that are protected by states. So in other words, you get those protections of citizens of your states and national rights or privileges that the 14th Amendment protects are a whole list of rights that really are not rights that we care very much about or even was cared very much about. Then I don't have the whole list memorized, but my favorite, right, that Chief Justice Miller said was the privilege immunity was the right to protection of your life, liberty, or property while traveling on the high seas when African as though we fought the Civil War over the deprivation of African American rights when they were in ships off the coast, beyond the territories of the United States. This is ridiculous, and most of all the other rights that he mentioned were trivial rights in that respect.

Juliette Sellgren (24.29)

When I first heard that, I laughed so hard because I was like, when is that going to apply? Especially now.

Randy Barnett (24.38)

Well, not only doesn't it apply, but because of the ruling in the Slaughterhouse Cases, there's only been one time that a majority of the Supreme Court from 1873 until today, there's only been one time that the majority of the Supreme Court has even invoked the privilege of immunities clause, and that is in support of a right to travel from one state to another. They did this in a case called Sends Vro. That's the only time the privileged immunities clause have been used. So if you came down from earth to earth from another planet and you read in that planet's laws that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, you'd think that was pretty darn important, and I think you would be shocked to find out then from 1873 until today, 150 years basically that right has never been protected. The only time that right played any important role was in a case called City of Chicago versus McDonald, which protected an individual right to keep and bear arms against states. Four justices, conservative justices used the due process clause to do that. And one, justice, the swing Justice, Justice Thomas, he relied solely on the privileges or immunities clause as he should have, and that's the most prominent appearance that has has played that piece of text has played in our constitutional law. It's a shock, it's a scandal,

Juliette Sellgren (25.58)

And tell me if I'm wrong, but also if it's a Second Amendment protection then because it's an enumerated, right? There still hasn't been any protection of un-enumerated rights under the privileges or immunities clause.

Randy Barnett (26.14)

Well, nothing has been protected. The right to travel is an un-enumerated right. That was protected that one time partly relying on the privileges or immunities clause. So I would say that, alright, but by and large, if you want to be accurate, I gave you the one big time and it made an appearance in a concurring opinion that was the fifth vote. But other than that, it's just gone. It's redacted as we lawyers say it is though it's not there. It is an unex. It's an unright.

Juliette Sellgren (26.44)

The thing that surprised me the most was that the monopoly power that the government granted to one privately owned slaughterhouse was basically the product of, I guess cronyism, corruption, whatever you want to call it, but the judges didn't even care to address the question of whether the monopoly power was a justified thing, which made the ruling even more damaging. I'm correct, right?

Randy Barnett (27.09)

Right. I should actually have sent you my article on the slaughterhouse cases. I wrote a piece about the history that behind the slaughterhouse cases, which is very complicated and very interesting, it's more interesting than I thought. I gave a lecture on this to the Supreme Court Historical Society at the Supreme Court a couple years ago. Yeah, it was a product of corruption. The evidence was produced later on in court in a proceeding over a stock that had been issued in the company. That stock had been given to the governor of the state and the legislators to pass the law in return for passing the monopoly, they would get stock in the monopoly and they were able to personally profit from it. That was one of three, at least three sorted things that this case raised. The other thing that was sorted about it was the fact that the legislature that enacted this law was a reconstructed legislature that had a very strong representation of African-Americans and the lawyers that represented the butcher was somebody who used to be on the Supreme Court and he retired, resigned from the Supreme Court to fight for the Confederacy, and he was using this case to gut the 14th Amendment because he didn't like reconstruction and he didn't like these Reconstruction legislators.

So in this tale, in this narrative, the legislature is kind of the heroes here, and the challengers are kind of the bad guys who are being motivated by bad ideas and bad intent. So the slaughterhouse cases are, the actual cases themselves are really interesting. The final thing is to keep in mind, and this is the final narrative of the case, there was an unbelievably terrible public health situation in New Orleans that this law was aimed at addressing, and that is that carcasses and remains and the after effects of slaughtering were all over New Orleans and dumped in the worst places and definitely polluting this drinking water in New Orleans. And most of this bill, besides the monopoly were regulations regulating the time and place of when you could slaughter animals to try to address the egregious health conditions that were existing in New Orleans. Those conditions had been cleaned up by the Union Army when they occupied New Orleans, but once the occupation ended, they reverted to the old form, and this was actually a public health measure, probably a real public health measure that was meant to address terrible, atrocious, awful noxious conditions in New Orleans caused the slaughtering business.

One more thing about that. The irony here is that given the corruption of most state governments at that time, not just New Orleans, not just Louisiana, which of course was and remains in many respects a corrupt government, but given the widespread corruption of state legislatures, it may have been the case that to get a genuinely public interest law passed, you had to pay off the legislators to do it. The corruption story might actually go hand in glove with the public health story.

Juliette Sellgren (30.14)

That's fascinating first, but after, almost immediately after the slaughterhouse cases comes Bradwell v Illinois and that did a lot too, right? Yes. Can you talk about that a bit?

Randy Barnett (30.25)

Yeah. Bradwell is a case that was announced the day after they announced Slaughterhouse. It was decided sometime earlier in private when they make their decisions, but it was announced the day after the slaughterhouse case was announced. Bradwell, which is not as well known, it's well known to law professors, but it's not that well known to the public. Bradwell concerned the right of a woman to practice law in the state of Illinois. She had been Myra Bradwell, who was a very accomplished editor of a legal newspaper in Illinois, married to a lawyer, was denied the right to practice law by the Supreme Court of Illinois by a regulation of the Supreme Court of Illinois. She challenged that under the 14th Amendment under the privileges or amenities clause on the grounds that this was an unreasonable restriction on her fundamental right to pursue a trade, which is the same, right?

The white butchers had been asserting in Louisiana and so on the day after they had announced the slaughterhouse decision, a majority of the Supreme Court, now it's a eight to one majority of the Supreme Court, but well, I should say five justices, the same five justices that were in the majority in slaughterhouse. They said the following Chief Justice Miller said, well, if what we said yesterday is true and the right to pursue a lawful occupation or trade is not a privilege or immunity of national citizenship, then this case is an easy one because there is no right that she could assert that we are going to be able to deal with because there is no right, there is no such privilege or immunity under the 14th Amendment. So for those five justices, the case was easy, but in the slaughterhouse cases there were four dissenters and those dissenters said at least three of them, all four voted, but three wrote opinions saying the right to pursue a trade was a fundamental privilege of citizenship of national citizenship.

So they joined three of those four dissenters, joined the majority and said, Myra Bradwell does not have a claim here. Well, how could they justify what they did given the fact that they thought there really was such a right. Well, what they said was this was a essentially, I'm paraphrasing here, a reasonable regulation of that right, which takes into account the differences between men and women, both their physical differences, their different roles, as well as their different legal statuses, and this was something that was within the reasonable discretion of states to regulate. So there is such a right, but this right is not being infringed. This right is not being unreasonably restricted. There was one descender in Bradwell, the chief Justice of the United States, Salmon Chase, who was a anti-slavery lawyer whose nickname when he was an anti-slavery lawyer, was the attorney general for runaway slaves and who ultimately ended up writing the political platforms, the constitutional platforms of the liberty and the free soil.

And then the Republican parties before he was named to be Chief Justice of the United States succeeding Roger Taney. After Roger Taney died, chief Justice Chase dissented in the slaughterhouse cases with the other three, and he dissented alone in Bradwell. Now, he never, the reason why that is not known widely known is because he didn't write an opinion. He didn't write an opinion. He was mortally ill at the time, and in fact, he died three weeks after the decisions were announced. But in the Supreme Court reporter, there's a notation there that I don't believe has ever appeared before or since, and that it says in it, it says the chief justice dissents from the decision and all opinions in the case. In other words, he not only dissented from the majority's opinion, he dissented from the concurring Justice's opinion that said there was a right, but this was a reasonable regulation. He descended from both the majority's opinion and the concurring justice's opinion. So Chief Justice Chase is a hero of mine, and this is an example of where I think he was right and the eight justices in the majority were wrong.

Juliette Sellgren (34.24)

Yeah. You sent me something you wrote about him and I read most of it. It was very interesting. His life is fascinating. Everyone go read about him because you will learn a lot. You'll be fascinated. I mean, especially in this time. It's amazing.

Randy Barnett 

Well, it's amazing that we've never heard of him. It's amazing that nobody knows about him.

Juliette Sellgren 

And everyone should.

Randy Barnett (34.46)

Should. He was only helped founded the Liberty, which was an anti-slavery party, the Free Soilers, which was also an anti-slavery party, and the Republican Party, another anti-slavery party. He not only did that, he was the first elected Republican governor in any state in the state of Ohio. He ultimately, he then resigned from the governorship. He tried to get the presidency of the United States and kind of people who know that about him know that he was a rival for Lincoln for the nomination for Republican president. When he didn't get it, he was then selected to be a senator. He was a senator, I'm sorry, he'd previously been a senator, sorry. Then he became governor, then he became a senator again, but he resigned after three days. The second time he was appointed senator by the state legislature to become Lincoln's Secretary of Treasury. And Lincoln then names him to be Chief Justice of the United States. In fact, just one little fun fact there, the title of the office was Chief Justice of the Supreme Court when he was named to it, and it was while he was holding that office that Congress changed the title to Chief Justice of the United States. When I met John Roberts one time, and I told him I was doing work on his predecessor Salmon Chase, he told me that that was the only thing he really knew about Salmon Chase is that he owes his title to the fact that the office was renamed for Chase.

Juliette Sellgren (36.12)

I'm just so impressed with his entire story and all these facts. We could do an entire podcast episode about this at some time because that would get the word out. Okay. In United States v Crookshank, which is different from the slaughterhouse cases and Bradwell because it's actually about enumerated rights, can you explain what happened and kind of the effects of what happened there? Because it seemed pretty bad,

Randy Barnett (36.48)

Right? Well, I think Slaughterhouse was about enumerated and enumerated rights, but based on what Chief Justice Miller said, but you're right, and most people know that it only actually concerned an un enumerated, right, the right to pursue a lawful occupation. Cruikshank made it clear that the privileges or immunities of citizens did not include even enumerated rights. Rights that were in the Constitution itself expressly it involved a horrible, horrible massacre of African-Americans. It was known as the Colfax Massacre, and this again came out of Louisiana where there was a contest for a local election, and the African-Americans and both sides claiming winning the African-Americans were the Republicans and the Democrats were the others, the former Confederates. And there ended up being a conflict between these two groups. The African-Americans took refuge in the courthouse in Colfax County Parish Courthouse and with their families, and they were surrounded by former Confederate militia men.

So there were two militias squared off and eventually they set the courthouse, the Confederate, the former Confederates set the courthouse on fire. When it came time to surrender, they let the women and children out and they proceeded to massacre at least well over a hundred of the African-American militia men after they had surrendered to the whites. And so this was known as the Colfax massacre. It was prosecuted. The offenders were prosecuted by a very courageous US attorney named Beckwith who was in Louisiana. He'd been stuck with his wife there after the Civil War was declared and eventually became named US attorney by the Republican president. I think at this point, it's Grant who named him US Attorney after his predecessor had been found in his office with his throat slit and Beckwith went after these perpetrators. They managed to get a few of them, a handful of them tried.

There was a hung jury the first time, and then later they went and tried 'em again and they got a conviction under a Civil Rights Act that the Republicans in Congress had enacted. This case goes to the Supreme Court, and among the charges were that they were infringing on the fundamental rights of these African-Americans to peaceably assemble that would be protected by the First Amendment and goes to the Supreme Court and basically the Supreme Court holds. And a decision that was, I think deserves to be pretty infamous along with Dred Scott, that the Civil Rights Act that had been enacted by Congress was unconstitutional because the Privilege Immunities Clause did not protect these enumerated rights from being violated by other people, by other private parties. If the government isn't violating your rights, if it's not the state of Louisiana that was doing it, then the 14th Amendment doesn't protect it at all. And so for that reason, the Civil Rights Act, which did protect this was unconstitutional, and then they let go all the people that had been convicted.

Juliette Sellgren 

That frustrates me to no end. But anyways…

Randy Barnett (40.16)

Well, reading about the Supreme Court is highly frustrating. Juliette, let me just warn you. When I was a law student, I liked the Constitution like Americans tend to, and I took constitutional law, and by the time I was done with constitutional law, I was done with the Constitution because I read all of this constitutional history in my con law casebook, the one I was not mine, but the one that we were assigned. And every time I got to one of the good parts of the Constitution, like the privileges or immunities clause, I would turn the page and there'd be a case like Slaughterhouse or Cruikshank telling me that that doesn't mean anything, and that those cases are still good law today. So by the time I was done with my class as a student, I said, if the Supreme Court doesn't take the Constitution seriously, why should I then went into practice? I was a criminal prosecutor when I became a law professor. I was a contracts professor because I just didn't think much of constitutional law. So that was how turned off I was. By reading the history of how the Supreme Court has neglected to enforce all the good parts of the Constitution,

Juliette Sellgren (41.17)

It is so frustrating to see all of the parts that protect our individual rights so strongly just being completely gutted. So, okay, it took the 14th Amendment and took slaughterhouse to reverse the Dred Scott decision, but is there any way for us or for the Supreme Court to allow the 14th Amendment to live up to its potential or because it's an amendment? There's no way it is what it is now?

Randy Barnett (41.51)

Well, it is what it is because the Supreme Court says that it is, and so you have to get the Supreme Court to admit it was mistaken, which it has done in many times before. Despite what it says about what's called stare decisis or precedent, the Supreme Court has reversed itself many times before you had to get 'em to do it again. One of our best opportunities to get him to do this was the McDonald case I mentioned earlier, which involved a right to keep and bear arms that was being asserted against the city of Chicago, which is a creature of the state of Illinois. And that was a fantastic opportunity to revive the privileges or immunities clause because A, it only involved a enumerated, right, the right to keep and bear arms, and B, there was clear evidence that that was one of the principle rights that the framers and ratifiers of the 14th Amendment were trying to preserve the rights of free blacks to protect themselves from violence by whites largely from white militiamen like I talked about in the crook shank.

And so the conservatives on the Supreme Court, actually, the progressives and the conservatives both had a great opportunity to revive the privilege immunities clause, if only to protect the enumerated right, that they're going to protect anyway that they end up protecting, but they prefer to use the due process clause to do it. They were afraid of reviving the privileges immunities clause, the four progressive justices. They didn't want to protect the right at all, so they voted against any protection. Four conservative judges justices used the due process clause to do it, and only one, Clarence Thomas was prepared to use the original meaning of the privileged immunities clause to do it. That was a terrible, terrible loss. We won the case, we got the right protected, but we lost the Constitution again because they used the wrong clause to do it, and then we failed to revive the 14th Amendment, the privilege immunity clause the way it should be.

Juliette Sellgren 

It's frustrating, but there's hope for the future, I guess then.

Randy Barnett 

You're the future. You got to go up there and make these guys do it.

Juliette Sellgren (43.51)

Yeah. Maybe I'll go and do some lawyering in front of the Supreme Court. I don't know. We'll see. So to wrap up, what is one thing you believed at one time in your life that you later changed your position on and why?

Randy Barnett (44.07)

Oh, I know you asked me to think about that beforehand, and I should have thought about it and had a really good answer for you for this. I've changed my mind on a lot of things. Well, I've changed my mind about originalism. That's a pretty big thing. It sort of defines me. Now, I was not an originalist when I finally started moving into constitutional law from contract law, because I thought that originalism had been refuted by actually a couple of very well-known articles at the time that had been published. And I was persuaded by those articles that originalism was wrong, and therefore I was not an originalist. And then I was teaching a seminar at Boston University as a professor there, and there was a citation in one of the things I was teaching to a book by Lysander Spooner called The Unconstitutionality of Slavery.

Now, I had heard of Lysander Spooner when I was a college student. He was a radical libertarian in the 19th century, and I knew about one of the essays he wrote, but I had no idea he had written anything about slavery, much less why he could argue in 1845, which is when his book was published, that slavery was unconstitutional. So I asked the library to get it for me. I got it. It turns out it was a 280 page book that he had written, and what he ended up using in that book was a form of original meaning originalism, the kind of originalist I am today, but which I didn't know about. And I thought to myself, Hey, wait a second. I could get behind this. This is a form of originalism I could get behind. Spooner was one of these anti-slavery guys. I was talking about before one of these guys responsible for changing how people viewed the Constitution.

That led to the 13th, 14th, and 15th Amendment. But it also changed me, and it was because I read Spooner. I'm probably the only person in the history of the United States who became an originalist because I read Lysander Spooner's, the Unconstitutionality of Slavery, and eventually after thinking about it and working on it and developing the theory even further than Spooner had taken it, I decided I was an originalist. I came out in a piece I published in 1999, so that means for over 20 years I have been committed to the idea of originalism as the way of interpreting the Constitution, something I had rejected prior to that. So I think that's a pretty big change of mine.

Juliette Sellgren (46.24)

So if the Constitution of the United States was an anti-slavery document, can you make the case for that?

Randy Barnett (46.32)

Well, I wouldn't go that far. I don't think the original Constitution was anti-slavery that I think would be too far. I think it wasn't as pro-slavery as it's been made out to be. It was more of a compromise, and I would recommend a book that draws the appropriate balance here by a historian named Sean Wilentz from Princeton, who had a book published last year or the year before called No Property in Man: Slavery and Anti-Slavery at the Founding. It's a very, very good book, and it talks about the degree to which slavery was accommodated by the Constitution. On the other hand, it also talks about the efforts that pro-slavery delegates had to try to put an expressed endorsement of slavery into the text of the Constitution and how that was fought at every turn by those who oppose slavery at the convention and they prevailed. That is no affirmative positive endorsement of was included in the text that later on proved to be very important to craft arguments that slavery was ultimately incompatible with what the Constitution did say and the arguments that Spooner and many, many others made.

Their arguments were made possible by the pushback that delegates at the Philadelphia Convention had to stop the Constitution from being a pro-slavery document, which is what some southern states wanted it to be. The other thing to keep in mind as what was happening in Philadelphia is that in 1776 when the declaration is adopted unanimously by all the states, and it says that all persons, all men are created equal. In 1776, all 13 states were slave holding states. Slavery was legal in all 13 states. By the time the Constitution gets enacted, 11 years later, half the states had abolished slavery or had already enacted gradual abolition and laws. So slavery was being outlawed in half of those states. That's a lot of progress to have been made in 11 years, and it's because of that progress. The Constitution was kept deliberately neutral with respect to whether it was pro-slavery or anti-slavery.

Juliette Sellgren (48.40)

That's beautiful. Thank you so much, and thank you for being on this podcast and for taking the time to talk to us today. I learned a ton, so thank you.

My pleasure, Juliette.

Juliette Sellgren 

Well, that's all we have time for today. I'd like to thank my guest once again for their time and insight. I would also like to thank everyone who listens, subscribes, and shares the Great Antidote podcast. If you would like to be on the podcast or if you have a guest in mind, please feel free to reach out to me at the greatantidote@liberyfund.org Bye.