The Original Meaning of the Fourteenth Amendment: Implications for Labor Law

[Music and Narration]

 

Jack Capizzi:  Welcome to today’s Federalist Society virtual event. This afternoon, September 6, 2022, we’re discussing “The Original meaning of the Fourteenth Amendment: Implications for Labor Law.” The topics included in this discussion are the Privileges or Immunities Clause and its associated citizenship declarations, as well as the implications for labor law if the Supreme Court were to view the original meaning of the Fourteenth Amendment in a new light. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we’re very fortunate to have an excellent discussion featuring Professor Evan Bernick, Assistant Professor of law at Northern Illinois University, and Professor Christopher Green, the Professor of Law and Jamie L. Whitten Chair in Law and Government at the University of Mississippi School of Law.

 

After our speakers give their opening remarks, we’ll turn to you, the audience, for questions. If you have a question, please just enter it into the Q&A feature at the bottom or your screen, and we will handle the questions as we can towards the end of the program. With that, thank you all for being here with us today. And Chris, the floor is yours.

 

Prof. Christopher R. Green:  Well, thanks. This is a great opportunity to talk about some important issues. Of course, four huge Fourteenth Amendment cases just from last spring, I think, are getting people a lot more interested in the Fourteenth Amendment having an impact on what the Supreme Court is up to. Originalism, in general, has been getting a lot more attention and just scholarship about original meaning. So just in the last year, there have been—I’m not sure I want to say three major—but one very, very major -- it’s a two-volume collection by Kurt Lash. I’ll do the show-and-tell. So this reconstruction documents -- the Reconstruction Amendments, the essential documents, really. I mean, it should be on the shelf of every judge, I think.

 

Evan and Randy Barnett published The Original Meaning of the Fourteenth Amendment. The subtitles -- you have to turn inside to find the subtitle. It’s Letter and Spirit. Yeah. I knew that. And as well, Wurman published a—maybe a pamphlet—but a shorter work—The Second Founding: An Introduction to the Fourteenth Amendment—and has the same cover art that you might remember if you’re fans of Eric Foner’s reconstruction book from 1988, same cover art. So anyway, what do these people think? What do we all think? I published a book. Of course, I’m writing another to be published who-knows-when. Several people are writing books now; lots of important articles getting written right now. But what do we all think about the original meaning? Is it just complete chaos that we can’t know anything about?

 

There’s a surprising degree of consensus on -- so I think the proposition that there’s a lot of consensus—a lot more consensus on these days—is that the Fourteenth Amendment guarantees free and equal citizenship with respect to the right to work. This was, I think, the core of the core of what Congress was doing in 1866. So Kurt Lash, longtime defender of a view that the privileges of citizens in the United States are just the ones enumerated in the Bill of Rights—the right to work is not enumerated in the Bill of Rights -- even Kurt Lash, his new work on the citizenship declaration—the state’s citizenship declaration—argues that citizens of each state have the right to equal labor rights with similarly [inaudible 04:23]. So that is the basis for the Civil Rights Act of 1866. You’ll find before a lot of this scholarship came on the scene, a lot of people would say, “Oh, the basis for the antidiscrimination provisions of the Civil Rights Act of 1866 is the Equal Protection Clause.” But really, there’s been a lot more people saying, “Nah, it’s not equal rights for all persons necessarily. It’s really an equal citizenship idea,” either in the citizenship declaration or Privileges or Immunities Clause.

 

So what do you get when you look at the original meaning? You find that the core of what it means to be a citizen—the core that they were concerned with in 1866 and then in the Fourteenth Amendment—was the ability to work without being subject to, especially racial restrictions, but other kinds of arbitrary restrictions that prevent you from entering professions. So the [inaudible 05:34] history of the Black Codes, the Thirteenth Amendment prohibits slavery. A lot of the southern states under Andrew Johnson say, “Well, we can’t do slavery. But how about this? We can tell all the freedmen that they have to work in agriculture.” A whole bunch of mechanisms were saying, “You’re not allowed to enter the kind of professions traditionally dominated by white folks. You got to stay in your place—stay in your place economically.” Lots of the freedmen’s conventions make very clear they want the right to work in any profession—all the professions that any citizen can work in. South Carolina freedmen’s convention, I think, is particularly clear on that score.

 

So, if we went back to the original meaning of the Fourteenth Amendment, you would have an argument against a lot of distinctions that appear in labor law. I’m not a labor law expert at all, but lots of times, you’ll look at a regulation, and you’ll say, “What’s going on here? This doesn’t seem like the kind of thing that somebody who treated all citizens as free and equal would allow. It seems like it’s—to put it crudely—this red-seeking legislation that’s trying to reduce the supply of labor, increase prices, which is in the interest of people who are currently insiders in that industry, but not in the interest of those who are outsiders.” So a lot of labor law seems to a lot of people like it’s helping the people a couple of steps up on the economic ladder, hurting the people at the very bottom, hurting consumers, because this reduces production and raises prices for everybody in the economy.

 

And so, you might wonder, “Is there a good Fourteenth Amendment argument against that when states do it?” And I think the original meaning does give you the material for at least making that argument. It doesn’t categorically say, “We have to have anarcho-capitalism,” or anything like that. But it does raise a question, “Hey, why are you allowing certain citizens to work certain numbers of hours or work in certain particular places, but not other citizens? Why are you privileging the people a couple of steps up on the economic ladder over those at the very bottom of the economic ladder?” If you’re going to enforce that, you can’t have a rule like Williamson v. Lee Optical. Williamson v. Lee Optical of 1955 says, “If you have any conceivable basis for running basically just a straight-up, open cartel, that’s enough of a rationale.” That’s not going to cut it if you’re applying the original meaning of the Fourteenth Amendment.

 

I should say, so there’s -- Evan will talk a little bit more about some Thirteenth Amendment original meaning issues. There are also, of course, huge issues about the original meaning of federal power around. So since 1935, of course, we’ve had labor law large -- the labor union—law of labor unions at least—labor law, but also just the regulation of labor has largely been taken over by the federal government. And if you look at the original meaning of the Constitution, pretty clear that there's no -- there are some people who dispute this, but it’s pretty clear the federal government doesn’t have power over labor conditions. They can’t prohibit slavery in the states. They can prohibit slavery in the territories. But Article I, Section 9, Clause 1, I think, would make no sense if Congress had the power to prohibit slavery in the states. And that’s why, for instance, there’s stuff in the Bill of Rights that protects equal labor rights because the federal government just doesn’t have power over that.

 

Under the Thirteenth Amendment Section 2, obviously Congress gets a huge grant of power to secure labor rights with respect to enforcing the prohibition on slavery. And then Fourteenth Amendment, Section 5, Congress gets a whole bunch more power. But a generic power under the Commerce power and Necessary and Proper Clause to have labor regulations seems to me that Carter v. Carter Coal in 1936 and Hammer v. Dagenhart, the part about directly regulating labor conditions by the federal government, those seem like they do fit with original meaning. There’s no factual development that can really justify departing from that rule today. Hammer, of course, had some more details about interstate commerce in the products of child labor and all that. So in kind of setting them aside, if you really went for the original meaning of the Constitution, you have a lot of arguments against federal labor regulation.

 

You also have a question about antidiscrimination arguments against the federal government. So in the United States v. Vaello-Madero from last spring, Chief -- Justice Thomas—I don’t want to promote him inadvertently there—but Justice Thomas’s concurrence really goes into a lot of the recent scholarship, cites both of us a bunch of times. You know it’s got to be -- it can’t be all wrong. But he cites a bunch of other people, too, on the idea that the citizenship declaration of the Fourteenth Amendment requires the federal government to treat all citizens as equal. So that would allow -- if you agree with Thomas’s reading of the clause and lots of other people’s reading of the clause, it would allow someone to make an antidiscrimination argument or an equal citizenship argument against federal labor regulation that is very, very similar to the kinds of arguments you’d make in challenging state labor regulations.

 

So with that as kind of background -- I haven’t really talked much about the differences between all these views, differences between Evan and me, and the difference between both of us and Kurt Lash, and both of us and Ilan Wurman. I mean, there’s a bunch of different nuances. But I think the core of the core is a ban on hostile and discriminating legislation, including labor regulations, is part of -- is, I think, the core of the core of the original meaning of the Fourteenth Amendment. So, Evan, you can take it away for a little bit.

 

Prof. Evan D. Bernick:  So I think this is probably the first time that Ilan Wurman’s Second Founding has been referred to as a pamphlet.

 

[Crosstalk]

 

Prof. Evan D. Bernick:  I don’t think that anybody is going to confuse mine and Randy’s book with a pamphlet unless one’s experience with pamphlets differs very radically from mine. I will say of Ilan’s book that, if it is accurately characterized as a pamphlet, it’s an excellent pamphlet, and everyone should read it. That being said, when it comes to Fourteenth Amendment scholarship more generally, it is easier to distinguish myself from Ilan and Kurt Lash’s views about the Fourteenth Amendment than it is to distinguish myself from Chris. In fact, it’s very difficult to distinguish myself from Chris. We both share a general—at a high level of abstraction—view about what rights the Fourteenth Amendment’s Privileges or Immunities Clause protects. It protects deeply rooted traditional rights on which there is a broad state consensus for an extended period of time, including rights against discrimination.

 

When it comes to the right to earn a living in the occupation of one’s choice—the right to work—Chris and I substantially agree. The right to earn a living is one of the privileges or immunities of US citizenship, deeply rooted in the nation’s history and traditions at the time the Fourteenth Amendment was ratified. Like other privileges of citizenship, it was understood to be subject to reasonable regulations in the interest of public health, safety, and welfare. But those regulations did need to be reasonable. They couldn’t be arbitrary. They couldn’t be designed to extract wealth from some and distribute it to others just because the latter had the political power to dictate that result. So the Fourteenth Amendment, in both of our views, protects economic liberty from state restrictions on it that are either designed to benefit some and burden others for no reason other than those burdened could reasonably be expected to accept. There needs to be a public-oriented justification.

 

However, I depart from Chris in the way of “yes, but” when it comes to the breadth of the economic liberty that the Thirteenth and the Fourteenth Amendments together work to protect—a form of economic liberty that I don’t think can be reduced to the right to work. In fact, I think it’s very plausible that the Fourteenth Amendment doesn’t add any protections for economic liberty to the Constitution, that it provides only a desperately needed under-the-circumstances clarification of what the Constitution properly understood already protected in the estimation of Republicans who framed and made the case for its ratification.

 

So we think of the Thirteenth Amendment as abolishing slavery and involuntary servitude, and so it did. But precisely what slavery and involuntary servitude are is somewhat complicated. It’s complicated because of the way the Supreme Court has understood it in ways that were quite different from both how abolitionists and the Republicans who took constitutional inspiration from them understood it. So for abolitionists and Republicans, slavery, involuntary servitude, they were at once peculiar, hyper-exploitive, racialized institutions that operated in the American South and, more generally, a mode of governance that was incompatible with Republican citizenship anywhere that it existed. Specifically, it was a mode of domination through which some were able to dictate the performance and expropriate the fruits of the labor of others.

 

So, in this broad understanding of slavery and involuntary servitude, people who are dominated lack power over political life, civil life, in extreme cases, life simply—their continued existence. To be dominated is to be subject in some major area of one’s existence to the will of others over whom one lacks control. The peculiar institution, chattel slavery, had an inextricably racial character. The mode of governance did not—had not since the founding—which is why one of the most frequent complaints by American colonists on the eve of the Revolutionary War is that the British are in enslaving them through extractive economic policies like the Stamp Act.

 

So as Republican Henry Wilson put it, arguing for the Thirteenth Amendments, “We have advocated the rights of the black man because the black man was the most oppressed type of the toiling men of this country. The same influences that go to keep down and crush down the rights of the poor black man bear down and oppress the poor, white laboring man.” Now, the same influence is admirably flatly wrong, but the point is that Republicans, Reconstruction Republicans, were committed to a vision of citizenship that required the freedom of all workers from domination. And so, this is where things really get, I think, a bit controversial.

 

The Thirteenth and Fourteenth Amendment work together to secure economic liberty and prevent the exercise of arbitrary power, thereby preventing domination and promoting Republican citizenship. Republican citizenship is characterized by the enjoyment of national rights and civic equality. Slavery is characterized by domination. The Thirteenth and Fourteenth Amendments together provide the foundation for rights to labor in one’s chosen occupation and also rights to be free from certain forms of labor, whether or not one has contracted to perform them. Both kinds of freedom are necessary to prevent domination to establish what Republicans understood to be constitutive of citizenship to be free labor, not merely the right to work. Free labor ideally meant economic independence, which was thought to be necessary to political independence.

 

Among the best pieces of evidence that the Thirteenth Amendment was not understood solely to abolish chattel slavery and thus that the abolition of slavery and involuntary servitude swept more broadly than that peculiar institution is the text of the Civil Rights Act of 1866, which was passed by a super majority of Republicans over President Andrew Johnson’s veto. It defines citizenship inclusively, stating that all persons born in the United States are hereby declared to be citizens of the United States. It then prohibits race discrimination in property transactions—guarantees to all people the right to sue, be parties, and give evidence. And it guarantees to all people the free and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.

 

And most importantly, for present purposes, it protects the rights to enter and leave contracts to seek better wages and conditions. That’s what it meant for white citizens to have the right to contract, so the 1866 CRA guarantees that right to all citizens. And it does so because southern states had enacted a series of laws known as the Black Codes that, among other things, required formerly enslaved people to sign one-year contracts with their former enslavers, prohibiting leaving their employer, and making it a crime to be unemployed. So together, the Thirteenth Amendment and the 1866 CRA are able to provide a floor of labor rights below which no state or private actor could fall.

 

The very next year, the same Congress enacted the 1866 Anti-Peonage Act. The Act conveyed authority on the United States to reclaim from peonage women and children being held in that condition in territory adjacent to their homes and on the Navajo reservation. Now, this was a response to reports that the U.S. Army was directly aiding a system of peonage that exploited Mexicans and American Indians in the New Mexican territory. And it covered “the voluntary or involuntary service or labor of any persons as peons in liquidation of any debt or an obligation or otherwise.” So, in other words, it covered more than chattel slavery. Note “voluntary;” Congress wanted to protect workers from domination even if the worker contracted in to dominating conditions.

 

And finally, in 1868, the Reconstruction Congress enacted a statute limiting the hours of federal workers to eight hours a day. This was a long-standing demand of an emergent labor movement. Labor spokespeople had argued for decades that the eight-hour work restriction would help to prevent wage slavery, and Republicans echoed this language in calling for it. The notion of a liberty of contract that prevented legislators from recognizing and compensating for power and balances in the workplace and thereby preventing domination was a much later development. It wouldn’t become -- the accepted wisdom that the Fourteenth Amendment protected an unchanneled right to contract, after which point the Constitution didn’t meaningfully apply until much later. And even during the Lochner era, the Court upheld most workplace regulations, including regulations that were intended to specifically protect workers, not third parties.

 

Last point that I’m going to make about this is that Thirteenth Amendment arguments were actually central to major labor legislation that was proposed and ultimately enacted in the early twentieth century, including New Deal legislation like the Wagner Act—the National Labor Relations Act. However, in the course of litigating it, defending it in court, labor advocates decided to shift to the Commerce Clause. Why? For the same reason that civil rights advocates shifted to the Commerce Clause in defending the Civil Rights Act of 1964, which was that the Supreme Court had, in a series of cases unfortunately known as the Civil Rights Cases, held that the Fourteenth Amendment’s applied only to state action and the Thirteenth Amendment’s applied basically only to chattel slavery.

 

It is my view that legislation like the National Labor Relations Act can be understood as a means of enforcing the Thirteenth Amendment’s protections against workplace domination, just as the Civil Rights Act of 1964 can be understood as implementing the Fourteenth Amendment’s protections against racial discrimination. And I’ll leave it there.

 

Prof. Christopher R. Green:  Yeah. So as I was saying earlier, Evan, I don’t really have super strong views about the extent to which the Fourteenth Amendment might be just declaratory of the Thirteenth Amendment. So when Congress is passing the Civil Rights Act of 1866, of course, they don’t have a Fourteenth Amendment yet. So there’s lots of reason to think, if that is seen as a use of the Thirteenth Amendment Section 2 power, Thirteenth Amendment has to be at least a close enough question to be -- the right to work is protected by the Civil Rights Act of 1866, ought to be at least a close question on the Thirteenth Amendment.

 

There were some other bases for the Civil Rights Act. Lyman Trumbull, for instance, he repeatedly invoked the citizenship power, the naturalization power, of Article I, Section 8, Clause 4 and said, “Well, we can make citizens.” So the very first sentence of the Civil Rights Act say the freedmen are citizens. And, well, if we can make them citizens, if we can –” so the idea is, “Well, you’ve got enslaved people. You’ve got citizens from other [inaudible 24:33]. You have these people denizens, which are free people, not citizens of other countries, but not yet citizens, and then full citizens.” So a lot of people in 1866 said, “Congress has the power to get rid of this status of denizen.” And to be free, you’re just jumping straight up. You’re not becoming a citizen of every country. You’re just jumping straight up to citizen.

 

So Howard J. Graham has a bunch of really interesting essays -- our declaratory Fourteenth Amendment that makes citizenship -- just points back to a lot of that history where they say, “The Fourteenth Amendment, it's really just declaring what the Thirteenth Amendment itself was supposed to do.” Yeah, there’s no question -- if you look at the free labor ideology, domination is a huge aspect to it. So Lincoln, when he’s talking about free labor, it’s very clear. You start out working for somebody else, and then you save enough money, you can hire other people. And the goal is clearly where everybody has freedom to work as much as they want or not.

 

I’m not sure how -- I mean, it’s a somewhat fuzzy idea. It’s clearly there in the Republican view of life and reaping the fruits of your own labor, just all over the place. I mean, very kind of poetic of a lot of Lincoln and other folks like Wilson. And, of course, Lincoln doesn’t -- the ideas are progressing and getting more articulated after Lincoln’s death, of course. So there is something there. Not sure that it's clear enough that there’s a right not to be dominated when domination is really talking about freedom from want. I don’t think -- Evan wasn’t saying that. But FDR, when he gives these four freedoms and people should be just free from scarcity – getting that is something a lot of people who [inaudible 26:53]. But I think that’s squeezing a little too much out of the Thirteenth Amendment.

 

Prof. Evan D. Bernick:  Okay. So, I feel like I could --.

 

Prof. Christopher R Green:  Okay. I’ll let you elaborate a little bit.

 

Prof. Evan D. Bernick:  Yeah. So let me just clarify. You are not going to get the rights to collectively bargain, to be free from mandatory arbitration, to not be governed by uncertain time schedules or evaluated by algorithms out of, “There shall be no slavery or involuntary servitude.” However, Section 2 of the Thirteenth Amendment, just like Section 5 of the Fourteenth Amendments, allows Congress to take the lead in defining and protecting civil rights. And I think there is a plausible case that rights that wouldn’t themselves be guaranteed simply by the textual specification of, “Neither slavery nor involuntary servitude shall exist,” or, “No state shall abridge the privileges or immunities of citizens of the United States.”

 

The fact that you don’t have, in the text, particular rights doesn’t mean that Congress couldn’t take a prophylactic approach, a way to specify through statutes ancillary rights—rights that are adjacent in order to protect underlying rights that really are protected by the Thirteenth or Fourteenth Amendment. And that’s the possibility that I want to leave open, not that -- not that you can make --

 

Prof. Christopher R. Green:  That seems right to me.

 

Prof. Evan D. Bernick:  -- because you can’t make -- you can’t make the case that there was a widely accepted right to collectively bargain in 1863 or 1868. You can’t. What you can do is take the view that just as -- if you look at the Civil Rights Act of 1866 and you look at a bunch of rights that don’t seem to be identical to the condition of being an enslaved person, Congress may have space to go above and beyond the text of the Thirteenth or Fourteenth Amendments by way of protecting underlying rights that are guaranteed by it.

 

Prof. Christopher R. Green:  Yeah. So I basically agree with Evan and Randy on the Section 5 power. The way I would put it would be a little different from, I think, how they would do it. The way I see it, you have to look at the enforcement power against the background of a clarity requirement for judicial review. So at least a few years ago, Evan was a vehement opponent of that. Are you still? I don't know. But one way to think of it is [inaudible 29:23] the stuff that the courts can say is a violation of either the Thirteenth Amendment or Fourteenth Amendment. And that has to be clearly contrary to the underlying prohibition itself. Then you got stuff that’s clearly, “This doesn’t have anything to do with it—” clearly beyond even Congress’s power to clarify. But then, within the -- between those clearly-yes/clearly-no zones, Congress has a power of clarification. So the power of clarification of the rights of free and equal citizenship is a very, very, very [inaudible 29:58] power. We agree that the 1883 court got that completely wrong. I think we agree that the Court got it wrong in 1997 in Boerne.

 

Prof. Evan D. Bernick:  Yep.

 

Prof. Christopher R. Green:  I mean, almost all your major cases are wrong. So they get the Slaughterhouse Cases wrong in 1873. They’re using the wrong clause in Munn in 1877. They misinterpret the Equal Protection Clause in Yick Wo in 1886. The misinterpret Section 5 in the Civil Rights Cases. So we’ve been on this -- we’ve been using the wrong clauses ever since the 1870s. So everything the Supreme Court has said, you got to take with a grain of salt.

 

Prof. Evan D. Bernick:  Yep. Just to use another analogy here that might be helpful -- nobody thinks that Congress was required to charter a bank of the United States by the Constitution. Yet, in McCulloch v. Maryland, the Court upholds the creation of a national bank on the ground that it’s reasonably adapted to the legitimate purpose of taxing and spending for the general welfare. By way of analogy, one could argue that the NLRA or the Civil Rights Act of 1866 isn’t itself dictated by the text of the Thirteenth Amendment, but it might be an appropriate means by which Congress could exercise its powers, which were defined in ways that deliberately track the language of McCulloch in order to fulfill what it understands to be its constitutional obligation.

 

Prof. Christopher R. Green:  That’s right. Appropriate is the term. It’s moved -- Section 2 of the Thirteenth Amendment to Section 5. They put [inaudible 31:42] for places and sentences, but the power to enforce this article by appropriate legislation, enforcement by appropriate legislation provisions of this article—obviously etymologically very, very close to proper, which is what gets so much attention in McCulloch in 1819.

 

Well, let’s answer a question. “You’re discussing the Privileges or Immunities – Privileges and Immunities Clause” -- whoa. Whoa. Privileges or Immunities Clause is the Fourteenth Amendment. So the Comity Clause—Comity with a T—from Article IV, Section 2 [inaudible 32:18], that’s the Privileges and Immunities Clause. But anyway, that’s just a -- that’s not a nice thing for me to complain about. But we’re discussing the Privileges or Immunities Clause, but I thought the Supreme Court had largely ignored this clause. Well, not quite so much. So I think the last time before this last spring that the Court had seriously discussed the Privileges or Immunities Clause was Saenz v. Roe in 1999.

 

Dobbs, actually, in footnote 22 -- I was very unhappy that footnote 22 was not quite a lot longer. But for the first time, the Court, four times since 1999, said, “Hey, we want to take seriously a Privileges or Immunities Clause argument under the Fourteenth Amendment.” What they said in footnote 22 was, “Well, it’d be this same basic thing we were doing under the tradition analysis on the due process case law because in Corfield v. Coryell 1825, which Akhil Amar thinks is the Privileges or Immunities Clause is about.” Like, “Well, I mean there’s a bunch of steps here.”

 

I was really -- when I saw the draft -- when I saw that, it was basically the same language as is in the draft opinion. When I saw that in the draft opinion, I thought -- I mean, I think on Twitter, I said, “Hey, this is clearly going to get a lot more elaborate because the dissent is going to make an argument.” Look, we’re talking Privileges or Immunities. The dissent has got to make an argument about equality and equal citizenship based on the Privileges or Immunities Clause. But then, the dissent didn’t elaborate it, and Alito was like, “Well, if you aren’t going to make a” -- I don't know if this is how the conversation goes, but he doesn’t elaborate beyond footnote 22.

 

Independent of that, the chain of citation actually goes back to the Slaughterhouse dissent. So the Slaughterhouse dissent in 1873 gets recapitulated in 1884 when the slaughtering monopoly comes back. Louisiana wants to cut off the slaughtering monopoly before the end of the 25-year term. And Field and Bradley, in 1884, say, “We were right in 1873. We’re still right,” and then writes these big, long explanations of the rights [inaudible 34:38] of the United States. That concurrence, Bradley’s concurrence in 1884, is the main precedent that Allgeyer v. Louisiana relies on in 1897, which is the main precedent for Lochner in 1905, which is the main precedent for Meyer in 1923, which is the main precedent for Griswold of 1965, which is the main precedent for stuff like Roe and Obergefell, and that’s what they’re fussing over in Dobbs.

 

So the way I sort of think of it, we’re building, and we got Privileges or Immunities stuff stuffed under the floorboards. So we’ve been building stuff -- what would [inaudible 35:13] to have a Privileges-or-Immunities-Clause-based Fourteenth Amendment jurisprudence? Well, it’s like in Finding Nemo when they get -- “Where’s the East Australian current?” “You’re riding it.” We have. Our current Fourteenth Amendment jurisprudence is based on the Slaughterhouse dissents from 1873. It’s not done very well—don’t get me wrong, it’s a terrible doubt—but it is, in fact, stuffed under the floorboards. So, Evan, is that story right?

 

Prof. Evan D. Bernick:  Yeah. I think that story is generally right. The only thing that I would add here is that when we’re talking about labor rights, if we’re talking about the Thirteenth Amendment, we’re not talking about the Privileges and Immunities Clause. And it so happens that there is still a precedent on the books that is considered good law that takes a much broader view of the rights that Congress can permissibly define as, or is permitted to define the absence of, constitutive of a badge or incident of slavery that gives Congress a tremendous amount of power that, under City of Boerne and enforcements of the Fourteenth Amendment, it doesn’t have. And this is 1968, Jones v. Alfred H. Mayer Co., in which the Court held that the Thirteenth Amendment’s Section 2 empowered Congress to define racial discrimination in the sale and rental of housing as a badge or incident of slavery.

 

That’s very broad. There’s some question about whether it survives Boerne, which Boerne seems to say that, unless the Court would feel justified as recognizing something as a right protected by the Reconstruction Amendments, Congress has a very limited amount of space to go above that floor. But they are different amendments. And so, in theory, the arguments for labor rights, as defined by Congress in ways that are designed to prevent domination, are more promising under the Thirteenth Amendment than under the Fourteenth Amendment.

 

Quickly, everything is more promising under the Commerce Clause, as a matter of current doctrine, but not as a matter of original meaning. I think that Chris and I basically share the view that the Commerce Clause is doing a lot of work that enforcements of the Reconstruction Amendments ought to be doing but hasn’t been allowed to do because the Supreme Court has construed the Commerce Clause so broadly. So does labor and antitrust slot better under Amendment Thirteen than under the Commerce Clause? I think absolutely, yes, it does. And certainly, progressive justices like Brandeis understood the Sherman Antitrust Act as being designed in part to protect people against domination. But as the Court’s doctrine ended up working out, it’s now all slotted under the Commerce Clause.

 

Also, in response to Jack’s question about the Taft-Hartley Amendments -- so if there’s an originalist case for the NLRA because it’s tailored to the end of preventing domination, is it possible that the Taft-Hartley Act, which amended the NLRA in ways that labor advocates have always hated—including by prohibiting secondary boycotts, solidarity strikes—violates the Thirteenth Amendment? I would say yes, but in a very precise way. A Congress that takes the view that the Taft-Hartley Amendments expose workers to a risk of domination that approximates a badge or incident of slavery and involuntary servitude could permissibly act on that conviction even though the Court wouldn’t be justified in, say, striking down provisions of the Taft-Hartley Act because it promotes domination.

 

Prof. Christopher R. Green:  Yeah. When you’re talking about congressional action being unconstitutional, really, that’s a real, real uphill climb. First Amendment arguments, you can put -- a lot of First Amendment arguments you can put in terms of equal citizenship. It’s the right of people of all political and religious creeds to have the same civil rights. So a lot of the incorporation discussion, I think, is somewhat obviated once you see that a lot of First Amendment stuff is really an antidiscrimination argument kind of repackaged. I mean, it’s got antidiscrimination stuff put into the First Amendment, and then question about incorporation, you’ve got coming back down. But you can just directly say, “Hey, you got an equal citizenship right to be treated as the same -- have the same civil rights as all similarly situated fellow citizens.”

 

Prof. Evan D. Bernick:  Just putting my legal realist hat on for a moment -- there is no way that this Court is going to hold that the Taft-Hartley Amendments violate the First Amendment. It is considerably more plausible that two houses of Congress that take the view that the Taft-Hartley Amendments promote domination could enact a statute—something like the ProAct that is designed to get rid of those amendments. And the ProAct would eliminate the ban on secondary boycotts. Constitutional arguments are not just for the courts.

 

Prof. Christopher R. Green:  Yeah. Yeah. So in terms of what the odds would be that the current Court would strike down the Taft-Hartley Act, I would say you’ve got a much, much better chance of convincing people at a constitutional convention to have that amendment than that would happen with the Court.

 

Some people want us to have a fight about due process because we do disagree kind of sharply about due process of law—of law. It’s got to be -- so we --.

 

Prof. Evan D. Bernick:  That being said, when it comes to the idea that the Fourteenth Amendment prohibits arbitrary legislation somehow defined, we largely are in the same place. We would just get to that conclusion in different ways.

 

Prof. Christopher R. Green:  Yeah. So you’ve got belts and suspenders and then more suspenders with the Fourteenth Amendment, the Thirteenth Amendment, and due process of law. I’m like, “My belt is pretty good.” I don't know. The belt and suspenders, they’re like -- in terms of the Fourteenth and Thirteenth Amendment, I’m like, “Well, this belt is really pretty dang good. The suspenders? Ah, I don't know. They might be just as good.” Don’t take off your belt. I mean, don’t repeal the Privileges or Immunities Clause because you think, “Aw, it’s all fine, and Graham said it was declaratory. It’s all Thirteenth Amendment.” No. I mean, it does a huge amount of very important work.

 

But why the Court is using the wrong -- why you think the Court is using the wrong clause, you can interpret that as, “Why do we think it is the wrong clause, and why do we think the Court is doing it?” In 2010, McDonald, they basically were afraid of Pandora’s box. They’re like, “We don’t know what the original meaning of the Privileges or Immunities Clause is. Just sort of let it be.” I think there’s a lot more consensus today than there even was 12 years ago. I think that’s part of why footnote 22 in Dobbs reads the way it does. They feel like, “Well, we could be a little tentative, offer some -- it’s tradition somehow. It’s Corfield-ish stuff.” Yeah, they could switch clauses. You don’t think they’re going to switch clauses.

 

Prof. Evan D. Bernick:  Which would not be all that difficult. You could keep the same test that they’re using, deeply rooted in history and tradition from substantive due process, move it over to Privileges or Immunities, and Chris and I, at least for two counts originalist scholars, would be generally okay with that. The idea that this is just an insurmountable difficulty because who knows what could happen -- you got supposedly originalist justices acquiescing in what they think is a totally non-originalist understanding of the Due Process Clause because they’re scared that if they focus on the right clause, that will open Pandora’s Box. I mean, it doesn’t really pass the laugh test. And Justice Scalia’s ridicule of Alan Gura arguing the case for McDonald, suggesting that he was bucking for a professorship because he dared to raise an important question about original meaning that was thoroughly briefed and argued, was not one of his finer moments.

 

Prof. Christopher R. Green:  Yeah. Yeah. So we disagree, Evan and I, about, I guess, a couple things -- so deeply rooted in American history and tradition. So one area we disagree is about exactly what’s going on with 1868. So do the rights prevalent in 1868 get some sort of preferred position? And Dobbs is very clear. Alito is like, “The most important fact about history was how many states prohibited it in 1868.” I kind of don’t think -- I mean, I think it’s a relevant fact insofar as it tells you a little about the meaning. It is part of American traditional rights. I don’t think the 1868 stuff is really either a floor or a ceiling. But Justice Alito sort of views it -- he says some things that suggest that it might be a ceiling. Evan’s very clear it’s not a ceiling, but he wants it to be a floor. I would say it’s kind of neither a floor nor a ceiling.

 

We also just [inaudible 45:07] about just how deeply rooted it has to be. So Evan and Randy, they say, “Well, if it’s lasted for 30 years, then it’s pretty deeply rooted.” I would say I’m not sure how deeply rooted it has to be. If it emerges overnight, every single state -- something happens. Okay? Some big, huge event in the world happens, and every single state gives somebody some privilege—except for one state—on really poor grounds. It can’t explain why. They’re just like, “We just hate these people,” or whatever -- gives some sort of explanation that just doesn’t make sense. It seems like, even if the tradition is only a week old, if every state but one is doing it, that would be enough in the consensus for me.

 

Prof. Evan D. Bernick:  Yeah.

 

Prof. Christopher R. Green:  But those are really fairly -- it’s fairly small details that aren’t going to matter too much. Any other questions here? One for Chris, okay. “Do I have occupational licensing in my [inaudible 46:18] that could be -- it seems to me like rent-seeking malarky.” That might have been the term I used. Yeah. I mean, occupational licensing -- I mean, I have pretty strong intuitions that those seem pretty -- it seemed like they couldn’t be justified. You wouldn’t have to ask very much more than Williamson. I mean, Williamson is a conceivably rational -- “I guess, but he’s really not much more than that.” So it [inaudible 46:53] any kind of standard pushing back against a lot of these occupational licensing.

 

The ex-con ones are especially like these are just absurd policy telling people after they’ve been out of prison, “Oh, you’re the people we don’t want to compete against,” so you’re excluded from all these professions that they have willing -- people willing to buy their services. This is like absolutely critical to treating people humanely after they come out of prison -- is allowing them to have a job. I just think it’s -- stuff like that, I think, is just a disaster on almost every conceivable level. Thinking about it, occupational licensing or some core NLRA, FLSA labor. Eh, the core stuff, there’s an argument. There’s an argument that it doesn’t really make any sense. Yeah, there’s rent-seeking in a lot of places. How obvious it could be, how obviously you could show it to be just rent-seeking and not in the interest of all citizens, that’s closer to the line.

 

Prof. Evan D. Bernick:  Right. So this is where things get super dicey because there is an emergent over the course of the last [audio cut out 48:10-48:23] or of work of the public more generally. And I think that the concern about [inaudible 48:34] in seeking privileges for themselves at the expense of others, this really is kind of a poor democratic problem that you’re going to encounter in any government’s arrangements in which you have concerns about majority rule being used to extract benefits for the majority rather than serving any broader public purpose. The question from the perspective of policy and also from the question of domination is, “Are unions a government’s arrangement that can counterbalance the risk of domination without becoming themselves instruments of domination?”

 

And it’s very clear that, at least as Republicans and advocates of labor unions in the late nineteenth century understood it, they were effective countervailing forces. And I am of the larger belief that they can still be so, that workplace democracy is important even if it can misfire and just as any form of democracy can. But you do need to be careful when you’re thinking about the possibility of arbitrary actions that constrain the rights of others to not just focus on particular bad guys, like legislatures or particular pressure groups that you’re suspicious of, but take a more general approach.

 

Prof. Christopher R. Green:  Yeah. There’s no question. Yeah, I did want to underline my agreement with Evan about the kind of criminalistic aspect of things. Just because you make a contract doesn’t mean you’re acting as a free and equal citizen, just because you can point to something on the dotted line. There is a lot of paternalism both in terms of legislature being allowed to be paternalistic—subject to regulation and the general good of the citizenry, that’s no question of very, very strong element of the tradition—but then, also, saying, “Look, you sold yourself into quasi-slavery. You’re not allowed to do that.” You, at point one, does have that right, and you, at point two, has the right as a free and equal citizen that you not be subject to that kind of contract. Yeah, the history of labor unions is an anti -- kind of a device for preventing domination. I’m probably a good bit more skeptical than Evan is. Historically, 1870s, 1880s, you find a -- maybe the progenitors of the arguments. I mean, I don’t think Adair and Coppage are quite as new on the scene in the early twentieth century as Evan, I think, probably thinks. But, yeah, there’s development. There’s development.

 

But, yeah, I mean, even today, you think of movies like On the Waterfront. The bad guy that Marlon Brando is fighting back against is the union. And it’s the guys -- a couple of steps up the bottom of a ladder. You’re like, “What? I want to be able to get into this business even though I’m on the low end, like the very bottom ladder rung.” And all the fat cats wearing -- the Wall Street fat cats say, “Oh, oh. We love poor people. We want to be able to hire them for tiny wages in slightly more dangerous conditions.” The worry is that that’s not a good way to keep people from being able to run their own lives. But there’s an argument that the unions are -- at least aspects of having bad guy status themselves.

 

Prof. Evan D. Bernick:  I would just say that we live in a world of imperfect alternatives, number one. Number two, On the Waterfront was a very thinly veiled effort on the part of the director to justify appearing before HUAC—the House Committee on Un-American Activities—and denouncing socialists. So the message of that movie is one that doesn’t -- it probably shouldn’t be taken at face value portrayal of a general union tenor of the time.

 

Prof. Christopher R. Green:  It’s not a documentary. I certainly agree. But it sort of -- I don't know. Ideologically, it sort of scratches me a little bit where I itch. And it [Inaudible 53:07] --.

 

[Crosstalk]

 

Prof. Evan D. Bernick:  It’s a great movie. Everybody should see the movie. Brando is terrific—“I coulda been a contender.”

 

Prof. Christopher R. Green:  In terms of a picture of the anticommunist way of thinking in the ‘50s, I think it’s a pretty good picture of that ideologically.

 

Prof. Evan D. Bernick:  Yes. It absolutely is. It’s an important cultural document and a great movie.

 

Prof. Christopher R. Green:  Yeah, yeah. “Does it matter if we switch clauses?” Non-citizens ‘rights are the big ones that you worry about. So I’ve actually got a paper—which still needs a law review home, by the way—about non-citizens’ rights under the Commerce power. So we talked about how to make the Commerce power has been interpreted to be way too big. But the tribal and foreign commerce powers, I actually have a revisionist argument that that is actually -- gives Congress the power to give rights to non-citizens—either tribal members or citizens of other countries—that allows that to give -- require states to be free and equal -- to treat them as free and equal members of the community. And Congress has, in fact, done that in the 1870 expansion of the Civil Rights Act of 1866 and 1986. They prohibit discrimination against non-citizens in employment. I think those are quite solid constitutionally as exercises of the foreign commerce power. Yeah. We could talk about tribal stuff, but we probably shouldn’t.

 

So I wouldn’t say it would make a huge difference. It would put things into Congress’s -- Congress would be the one to make those decisions. But they have already. So given the statutes they’ve already passed, I don’t think it would have to make a difference—just make clear Congress is the one running the show.

 

Prof. Evan D. Bernick:  [Inaudible 54:58].

 

Prof. Christopher R. Green:  Forced labor implications of -- forced labor is in quotes.

 

Prof. Evan D. Bernick: Many things have forced labor implications.

 

Prof. Christopher R. Green:  Yeah. The quotes suggest that he’s maybe harkening back to Andy Koppelman’s Thirteenth Amendment defense of abortion. Are there Thirteenth Amendment implications for abortion? It gets you in the game. Okay? I think the Privileges or Immunities Clause is a lot easier way to get in the game. But what do you think? Do you know Andy’s Thirteenth Amendment abortion stuff?

 

Prof. Evan D. Bernick:  Yeah, I do. And what I’m trying to pin down about his position is whether he thinks that, yes, the Supreme Court could tomorrow recognize that Roe v. Wade is actually correctly decided on Thirteenth Amendment grounds on the one hand. Or Congress could take that view, that forced pregnancy is one of the badges and incidents of slavery given that enslaved people were forced to reproduce and give birth in order to prop up that economic institution, and a future Congress could rely upon that history and codify Roe or something. I think the latter argument is much more plausible than the former. I don’t think that either the Thirteenth Amendment or the Fourteenth Amendment gets you to the Court’s decision in Roe. So, to that extent, I don’t think that it’s convincing. I am more open on the badges and incidents question because I do think that forced reproduction was an important aspect of what it meant to be enslaved and that, under the Thirteenth Amendment, Congress has some space to do that which the Court did not do on its own initiative.

 

Prof. Christopher R. Green:  Yeah. I mean, I’ve talked with him. He gets you in the game of saying, “Okay, there’s a question here.” It doesn’t really answer the key question of abortion, which is, “What about the rights of the fetus, and why don’t they override whatever bodily integrity rights the mother has?” So stuff like -- I think you have to adopt or at least give Congress the ability to adopt either Michael Tooley’s arguments or Mary Anne Warren’s arguments against fetal personhood—saying that it’s okay for Congress to come in here because there’s nothing at stake in the fetal rights—or Judith Thomson’s arguments about bodily [inaudible 57:38] override. I think you have to engage the substance of those. And that’s either if you’re passing a law or just defending. I mean, I think the stuff about that the Court gives in Dobbs really needs some more development there.

 

Prof. Evan D. Bernick:  It’s really bad. I think it’s really bad.

 

Prof. Christopher R. Green:  Yeah. But the dissent doesn’t push on it. So, yeah, I’m unhappy with the majority for not really getting into the guts of the substantive issues at stake in abortion prohibition. But I’m also upset with the dissent for not them to dig into it. But the Thirteenth Amendment is very, very similar in that respect. It gets you in the game, but it doesn’t finish the job.

 

Prof. Evan D. Bernick:  Just really quickly -- I slightly disagree because I think that the bounds of the views of personhood that it would be permissible for Congress to adopt need to be historically situated rather than contingent upon the best opinion of contemporary philosophers, whether they be Michael Tooley or Judith Jarvis Thomson. It may be very clear circa 1868 that there was a prevalent conception of personhood, or at least the concept had boundaries such that there are certain arguments that contemporary philosophers might make that are clearly out of bounds, like Peter Singer’s view that -- well, you can google Peter Singer and infanticide and come to conclusions about his views. So there may be something that history can do to speak to the bounds of the substantial discussion that we need to have about personhood rights, even acknowledging that we need to have those substantial discussions.

 

Prof. Christopher R. Green:  Yeah, yeah. The history matters a lot. Another thing with the history is our knowledge of biology is developing a lot. Once you get microscopes, you can actually observe -- I think we observed mammalian fertilization for the first time in 1871 or something. You got to have room for developments of science. But, now, we’ve been talking about abortion for ten minutes. What are we doing? We’re supposed to be talking about labor law.

 

Prof. Evan D. Bernick:  We packed ten minutes of discussion in two minutes of actual time.

 

Prof. Christopher R. Green:  Yeah, our host is coming back to cut us off.

 

Jack Capizzi:  Yes. No, it seemed like a good time to wrap this up. And so, yeah. On behalf of The Federalist Society, I want to thank Chris and Evan for their valuable time and expertise today and also to our audience for engaging with us. As always, we welcome listener feedback by email at [email protected]. And as always, keep an eye on our website for announcements about upcoming webinars. Thank you all for joining us. We are adjourned.

 

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