The Slaughter-House Cases

Privileges or Immunities:  Academic Resources (NEW)

Speech of William H. Mellor

Delivered at the CATO Institute's Center for Constitutional Studies and Institute for Justice Policy Forum: Revisiting Slaughterhouse - To Put the 14th Amendment Back on Course, April 13, 1998

Every day in America, hundreds of thousands of people engage in the most massive expression of civil disobedience this country has ever seen. They face arrest, fines, and even imprisonment as result of their action. You won't find these people on picket lines or being hauled away in paddy wagons after raucous demonstrations. Instead, you will find that through countless activities and with tireless energy, they all seek the same goal - to earn an honest living for themselves and their families. Tragically, they do so under the laws and regulations of cities and states across the nation that make them outlaws.

That these hard working men and women should be treated as pariahs under the laws of this land is the legacy of The Slaughterhouse Cases and its total evisceration of constitutional protection for economic liberty.

What sort of people are these that persevere in the face of such legal adversity? They are people like Hector Ricketts who immigrated to America twenty years ago to start a new life as a hospital worker. When he lost his job, he could have gone on welfare or drawn unemployment. Instead, he decided to go into the commuter van business providing safe, efficient, low cost transportation throughout his community in Queens, New York.

Every day, Hector transports several thousand people to and from work and around his neighborhood. And he is not alone. Hundreds of other enterprising van operators transport nearly 40,000 people daily throughout Queens and Brooklyn. Hector has a loyal clientele and an unblemished safety record and as my colleague Nicole Garnett likes to say, "both puts people to work and takes people to work."

You'd think in a city where over 10% of the population is on public assistance and nearly 20% of the economy operates in the black market, such honest enterprise would be encouraged. You'd be wrong. For under the laws of New York, it is illegal for Hector Rickets and his colleagues to operate because they compete with bus monopolies created by the city. Their vans are regularly confiscated and they are forced to pay onerous fines. Meanwhile, on the same routes that vans serve for a dollar a ride, the bus monopolies provide dismal service subsidized up to $3.95 per rider in addition to a $1.50 fare. An iron triangle of the City Council, the Transit Workers Union, and the bus company, have rigged the system completely against Hector, foreclosing avenues of competition or legal redress.

Then there are people like Taalib-din Uqdah and his wife Pamela Ferrell who in the early 80's opened up the first African hairbraiding salon here in the District of Columbia. Taking the $500 that they had received for selling their car, they launched their enterprise with a lot of energy, unbridled hope, and a vision of hairbraiding as both a business and an art form. Before long, they were thriving, employing 10 people in their salon.

Then one day, came the knock on the door. Upon opening the door, Taalib-din was faced with the cosmetology police who demanded to see his license. Taalib-din informed the man that he had no license but that he would obtain one, assuming that this would be a modest inconvenience at most.

Imagine his surprise when he learned that in order to braid hair in the District of Columbia, you needed a cosmetology license which required in turn 1,500 hours of class work over period of some six to nine months at a cost $5,000. As if that weren't bad enough, virtually the entire 1,500 hours were spent on subjects absolutely irrelevant to natural hair care and hair braiding. If that weren't bad enough yet, at the end of such training he would have to demonstrate his proficiency in finger waves and pin curls, hairstyles popular on white women in 1938 when the law was passed. And if that weren't bad enough still, in order to run the salon he would need a manager's license requiring further training.

Taalib-din, like so many other entry-level entrepreneurs faced with similar unreasonable requirements, made the very rational decision to continue business and ignore the licensing requirements. This of course doomed any effort to grow the business, obtain financing through normal channels, or even to advertise. Nevertheless, the business continued to provide a good living for Taalib-din, Pamela and their employees.

Before long the knock came again. At that time, Taalib-din was informed that operating without a license exposed him to a fine up to a $1,000 per day plus time in jail. I'm pleased to say that today Taalib-din and Pamela have a thriving business in the District of Columbia in the aftermath of deregulation made possible through their courageous efforts and the work of the Institute for Justice. And in classic entrepreneurial fashion, they have gone on to be advocates for natural hair care and braiding across the country both professionalizing it and trying to remove barriers like the ones they confronted that still exist in virtually every state in the nation.

These are but two of the countless heroes who struggle daily against arbitrary and irrational laws used by state and local governments to condition entry into markets. While there has been no comprehensive documentation of all licensing laws that exist at the state and local level, knowledgeable experts think that at least 10% of the occupations in this country have licenses attached as a condition to entry.

The onus of these laws falls most heavily on people like Hector and Taalib-din who have little in the way of capital or formal education, and for whom these barriers mean not mere inconvenience or an incremental increase in cost of doing business, but rather make the difference between entering the formal economy and being doomed to live as economic outsiders or welfare recipients.

In order to analyze the pervasiveness of the barriers to entry-level entrepreneurship, the Institute for Justice recently commissioned studies of seven major cities: Boston, Baltimore, Charlotte, Detroit, New York, San Antonio, and San Diego. We found that government-created barriers to entry into legitimate markets are extensive and ubiquitous. For instance in Detroit, there is an urgent need for child care to help mothers transition off welfare. And there are many women eager to provide safe, loving care. However, child center directors must take 60 semester hours of course work from an accredited college, and regulatory requirements imposed on physical facilities for child care virtually prohibit any child care in apartments. As a result, in Michigan it is estimated there are well over 15,000 child care providers who operate without a license. Next look at Charlotte where you find a virtual ban on home-based businesses. Occupations ideally suited to stay-at-home moms, elderly people, and telecommuters are effectively foreclosed for no apparent reason. And in New York, in addition to the commuter van-licensing regime that plagues Hector Ricketts, you find that a cosmetologist must complete over 1,600 hours of coursework to practice their craft. Any public safety and health pretense for this training is put in start relief when compared to the 116 hours New York requires to qualify as a emergency medical technician with advanced training in the use of heart defibrillation or the 47 hours of training one needs to be a security guard authorized in the use of deadly force.

The problem is that, in the aftermath of The Slaughterhouse Cases, courts routinely defer to all such monopolies and licensing regimes. The standard for judicial review is so lenient that for all practical purposes there doesn't even need to be a fit between asserted public health and safety goals and the means chosen by government to reach these goals. Indeed, any reasonably conceivable facts that might justify a law can be the basis for upholding the law even if such facts were never contemplated by the legislature when it passed the law. This means that today even in the aftermath of welfare reform, the right to earn an honest living receives less legal protection than the "right" to a welfare check.

In the absence of the privileges or immunities clause, courts have drawn on other constitutional provisions and developed a variety legal theories to constrain economic regulation, the most controversial of course being substantive due process. Ultimately, these alternative constitutional provisions have proved inadequate for a task they were never clearly intended to perform. As a result, as long as Slaughterhouse stands unchallenged, economic liberty will remain in constitutional exile.

Bleak though the current state of affairs may be and long the intervening years, three trends offer hope for the prospect of eventually overturning Slaughterhouse and restoring constitutional vitality to the privileges or immunities clause.

First there is the growing body of scholarship that challenges the moral and legal underpinnings of Slaughterhouse. Indeed, every serious scholar who has examined the case, believes that it was wrongly decided. This scholarship and its attendant intellectual ferment, offer crucial impetus to reverse this pernicious precedent.

Coinciding with this ferment is the Supreme Court's apparent willingness of late in cases like Lucas and Lopez to recognize some boundaries on heretofore unchecked government authority. Perhaps most enticing, Justice Rehnquist in the Dolan case seemed to open the door to eliminating the dichotomy between preferred constitutional rights, and those like economic liberty and property rights accorded inferior treatment. He stated, "we see no reason why the takings clause of the Fifth Amendment, as much a part of the Bill of Rights as the First or Fourth Amendment, should be relegated to the status of a poor relation . . . "

Meanwhile, overwhelming evidence and a mounting consensus recognize the failure of the welfare state, particularly in the inner-city. This provides a socio-political climate ripe for arguments in favor for opening up entry-level opportunities and removing unnecessary governmental constraints on inner-city enterprise.

To decide what should replace The Slaughterhouse Cases, there is no better place to start than the dissents of Justices Bradley, Field and Swayne. There you will find a foundation for economic liberty that recognizes as Justice Bradley said the right "of every American citizen to adopt and follow lawful industrial pursuit ­ not injurious to the community ­ as he may see fit without unreasonable regulation or molestation." The police power could still be exercised to protect public health and safety, but not to create monopolies or to impose irrational conditions upon market entry.

The rankest form of judicial activism is that which reads out of the Constitution rights that clearly are protected. The Slaughterhouse Cases stand as a grim testament to the real world consequences of such irresponsible judicial activism.

For all of these reasons and more, we must overturn The Slaughterhouse Cases. The sanctity of our constitution compels it; the accountability of our governing institutions demands it. Admittedly, it's a tough challenge, but in the coming years, if you think it's a futile endeavor, then I invite you -- Come with me.

I will introduce you to Taalib-din Uqdah and Hecktor Ricketts and to so many others like them and -- after you have a chance to look into their eyes ­ I will ask you two questions.

How can we not try?

And if we try, how can we fail?

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