October 11th is Coming Out Day; October is also the month chosen for IUPUI’s Harvey Milk Dinner–an event sponsored by the university’s GLBT faculty and staff to bring “friends and family” together, to remember where the struggle for gay rights has been, and to remind us all that the fat lady hasn’t sung and the fight isn’t over. This was the fourth year of the event; I’ve been honored to emcee last two. This year, 275 people attended, including a significant percentage of the campus administration, from the Chancellor on down.
As I looked over the crowd, I couldn’t help wondering what Harvey Milk would think if he were still alive to see what he and a few other brave pioneers had wrought.
Harvey Milk was the first openly gay person elected to public office in California (and probably, in the U.S.). Born in New York in 1930, Milk moved to San Francisco in 1972, a time when there was a significant migration of gay men to the city’s Castro District. Once there, he became politically active.
Milk ran losing campaigns for political office three times before being elected. But he was by all accounts charismatic, and he ran what have been called “highly theatrical” campaigns. He finally won a seat as a city supervisor (what most places call city councilors) in 1977. He had served barely 11 months in office when he and Mayor George Moscone were murdered by Dan White.
Eleven months is a pretty short career. But Milk had started something and that something has snowballed. Since his death, relatives have established a foundation in his name, he was posthumously awarded the Presidential Medal of Freedom, and the Post Office has just announced the issuance of a Harvey Milk postage stamp.
Why did Milk have such an impact? Why did a brief 11-month stint in a relatively low-level office leave such a legacy?
I can only speculate, but I think most Americans—at least, those not deeply invested in hate and homophobia—respond to obvious injustice when they can’t avoid confronting it. What Harvey Milk did—and what every single gay person who has had the courage to come out has done—is insist on visibility.
I first recognized the importance of visibility several years ago, when I was the Executive Director of Indiana’s ACLU. We wanted to give one of our annual awards to the West Lafayette City Council for adding sexual orientation to their Human Rights Ordinance’s list of protected categories. (They were the first in the state to do so.) Since awards from the ACLU can be a mixed blessing to elected officials, I called the clerk to see whether the councilors would accept the honor. She turned out to be a chatty soul, and confided that when the amendment was first offered, she thought it was silly. No one was discriminating against gay people—at least, not that she was aware.
Then there were public hearings on the proposed amendment, and the church buses rolled. People came out of the woodwork to oppose the measure, and their behavior was anything but Christian. She was appalled. As she said, “I’d had no idea! Those people showed me how wrong I had been and how important the amendment really was.”
When you become visible, it is no longer possible for the “good people” to ignore bigotry and injustice.
October is the month GLBT folks and those of us who count ourselves as allies remember that lesson.
Ever wonder why people don’t recognize when “news” reports are blatantly, obviously incorrect, improbable or impossible? Or wonder why anyone in his right mind would vote for Michelle Bachmann or Louis Gohmert or Ted Cruz?
My working thesis is that folks who don’t know anything–who are hazy about history, have no clue about how government functions and have only the most tenuous connection to the Constitution–simply have no context within which to judge the reasonableness of assertions that more knowledgable people simply laugh at.
Recently, Bill Maher cited a study showing that fewer than 17% of incoming college freshmen knew what the Emancipation Proclamation was (he described the incoming class as “Basically, golden retrievers with smartphones”). Unfortunately, we have a lot of studies that conclude we don’t know anything. And the hits keep coming.
As if we needed even more evidence of Americans’ abysmal lack of knowledge, here are the results of yet another survey I stumbled across:
1. Only 45% of Americans were able to correctly identify what the initials in GOP stood for: Grand Old Party. Other popular guesses were Government of the People and God’s Own Party. Republicans obviously scored much better than Democrats did on this answer. [source]
2. 55% of Americans believe that Christianity was written into the Constitution and that the founding fathers wanted One Nation Under Jesus. This includes 75% of Republicans and Evangelicals. [source]
3. Although a “relatively” high 40% of people were able to name all three of the United States branches of government — executive, legislative and judicial — a far lower percentage knew the length of a Senator’s term. Just 25% responded that a Senator’s term stretches for six years. Even fewer, 20%, knew how many Senators there were. [source]
4. Americans are known to pick recent heads of state as among the best president in history, which is why Clinton and Reagan regularly rank higher than Lincoln, FDR and Washington. However, Hoover used to routinely top polls of the worst, but today, just 43% of Americans know who he was, according to statistics from the University of Pennsylvania. [source]
5. When asked on what year 9/11 took place, 30% of Americans were unable to answer the question correctly, even as few as five years after the attack. This was according to a Washington Post poll conducted in 2006. . [source]
6. It’s not shocking that 80% of Americans believe that there is life out there somewhere, because it’s hard to look at a vast universe and think we’re completely alone. But 1 in 5 allege that an alien life form has abducted a friend or family member of theirs. Based on population estimates of around 300 million, that means that a terrifying number of people believe they have been probed. [source]
7. When looking at a map of the world, young Americans had a difficult time correctly identifying Iraq (1 in 7) and Afghanistan (17%). This isn’t that surprising, but only a slim majority (51%) knew where New York was. According to Forbes and National Geographic, an alarming 29% couldn’t point to the Pacific Ocean. [source]
8. 25% of Americans were unable to identify the country from which America gained its independence. Although 19% stated that they were unsure, Gallup findings indicated that others offered answers varying from France to China. Older folks scored much better than young people on this question, as a third of those 18-29 were unable to come up with the correct answer. [source]
9. Despite being a constant fixture in school curricula, 30% of Americans didn’t know what the Holocaust was. [source]
10. Even though we are a predominantly Christian country, only half of Americans knew that Judaism came before Christianity, because the words “Old Testament” are apparently very confusing in that regard. [source]
11. A surprisingly high percentage of Americans, 20%, believe that the Sun revolves around the Earth, instead of the opposite, aka the correct answer. This is despite the fact that centuries of science have consistently proved otherwise. [source]
12. In 2011, Newsweek found that 29% of Americans were unable to correctly identify the current Vice President, Joe Biden, when asked to take a simple citizenship test. Although a relatively low 6% didn’t know when Independence Day was, a much, much higher percentage (73%) had no idea why we fought the Cold War. [source]
13. According to most polls, Americans didn’t know that Obamacare was scheduled to go into effect. Kaiser puts the number at 64%, whereas others say as few as 1 in 8. [source]
14. 2006 AP polls showed that a majority of Americans were unable to name more than one of the protections guaranteed in the first Amendment of the Constitution — which include speech, assembly, religion, press and “redress of grievance.” Just 1 in 1000 could name all of these five freedoms. However, 22% were able to come up with the name of every member of the Simpson family. [source]
And we wonder why we elect buffoons to high office.
I really shouldn’t read the Letters to the Editor.
A couple of days ago, I read one from a woman who applauded the government shutdown, because we don’t need all these ridiculous regulations of our foods, our businesses and our local governments.
It’s a familiar theme.
Later that day, we stopped for gas, and my husband noted that the gas pumps had a sticker denoting the date they were last inspected. “If the shutdown goes on much longer,” he said, “those pumps won’t get their next inspection. I wonder how long it will be before consumers get shorted–before the pump says one gallon but dispenses a bit less than that. It only takes turning a couple of screws.”
My more libertarian friends will undoubtedly respond that if that happened, eventually people would catch on and that station would go out of business. Maybe–after a lot of people paid for more gas than they received. Or maybe not, since people stopping at stations on highway interchanges or in unfamiliar neighborhoods are unlikely to be “in the loop” of local gossip.
Gas stations aside, I’d suggest that if the clueless author of that letter prefers not to die of botulism (I hear that’s pretty unpleasant), she should welcome those intrusive FDA food inspections. I might remind her that people working for government didn’t just wake up one day and decide–hey, wouldn’t it be fun to go inspect those pork chops!? A lot of people got sick and died, and a lot of other people demanded that government–the folks who work for us–do something about it.
Look–it is perfectly reasonable to keep an eye on government to ensure that it isn’t getting into areas it shouldn’t, or conducting itself in a less than businesslike fashion, or playing favorites. It isn’t reasonable–in fact, it’s a sign of terminal stupidity–to suggest that we really don’t need no stinkin’ government.
I have news for all these anti-government ideologues. Most Americans no longer go out to the back yard and strangle a chicken for dinner. We no longer live miles from our nearest neighbor, so we can’t just throw our garbage out back for the animals to eat. The days of settling our disputes via duels is long past. And in case you hadn’t noticed, women and minorities are no longer willing to meekly abide by a bunch of rules made by white guys to privilege white guys.
The world has changed.
Today’s America is densely populated and interdependent, and individuals have neither the time nor–god knows–the expertise to test our food for contamination, review the business practices of our merchants’ and bankers and candlestickmakers, put out fires in our neighborhoods and saddle up with the posse when a bad guy robs the local liquor store. We have things called airplanes now, and they need to be inspected; we have cars and they need roads to drive on and rules to regulate their use.
For these and a zillion other reasons, we need government.
Section 1 of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As Constitutional scholar Erwin Chemerinsky has written (in The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise), “The simplest, and perhaps most elegant, way of understanding the Fourteenth Amendment is to view the Privileges or Immunities Clause as protecting rights from government interference, the Equal Protection Clause as assuring equal treatment, and the Due Process Clause as prescribing the procedures that government must follow when it takes away life, liberty or property.”(1151-52)
Although subsequent case law has relied far more substantially upon the Due Process and Equal Protection Clauses, the history of the Amendment suggests that the Privileges or Immunities Clause was originally intended to play a far more vital role than has subsequently been the case.
The Privileges or Immunities Clause should not be confused with the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution. That clause reads “The Citizens of each State shall be entitled to all Privileges and Immunities in the several states,” and has been applied to situations where residents of one state have been disadvantaged under the laws of another state; in other words, to situations involving the refusal of a state to treat U.S. citizens from other states equally under its laws.
History
Passage of the Privileges or Immunities Clause and the rest of the Fourteenth Amendment was a direct outgrowth of the national debate over slavery, and the subsequent emancipation of the slaves during the Civil War. In the aftermath of that war, Congress confronted a number of thorny issues: what would be done about the rebel leaders? Would the defeated states contribute to paying off the Union’s debts? Would slave owners be compensated for the loss of their property? What measures would be required of the defeated states as a condition of their full re-admittance to the Union?
While the Republican Congress wrestled with these and other issues, and engaged in arguments with Democratic President Andrew Johnson about their resolution, the governments of the former slave states were passing measures intended to prevent the freed slaves within their jurisdictions from enjoying the same rights accorded to white citizens. There was little or nothing Congress could do about these efforts. The Constitution offered no remedy to people treated unequally or unfairly by state and local governments, as the Supreme Court had made abundantly clear in 1833, in Barron v. Baltimore.
John Barron was one of the owners of a wharf in Baltimore’s harbor. The wharf had been quite profitable; however, as the city expanded and more and more development occurred, the city allowed large amounts of sand to be dumped in the harbor. The build-up of sand eventually deprived Barron and his partners of the deep waters they needed in order to continue their successful operation of the wharf. Barron sued the city to recover a portion of his financial losses, citing the Fifth Amendment’s prohibition on taking private property for public use without just compensation. The Supreme Court ruled that the Fifth Amendment, and the other provisions of the Bill of Rights, applied only to actions by the federal government.
The Barron decision thus prevented Congress from using provisions of the Bill of Rights to punish states that acted to oppress or disadvantage former slaves, no matter how official or egregious the act.
Several Senators and Representatives had come to believe that the Constitution should be amended so that the limitations of the Bill of Rights would restrain state level governments, but the first section of the Fourteenth Amendment owes both its form and substance to Ohio Representative Jonathan Bingham, who authored the language and worked tirelessly for the enactment of the Fourteenth Amendment. In an important speech that later was reprinted as a pamphlet (One Country, One Constitution, and One People: Speech of Hon. John A Bingham of Ohio in the House of Representatives, February 28, 1866, In Support of the Proposed Amendment to Enforce the Bill of Rights), Bingham argued that the proposed Amendment was not an intrusion on states’ rights, as some asserted, because no state had the right “to withhold from any citizens of the United States, on any pretext whatever, any of the privileges of a citizen of the United States.” He insisted the Amendment was necessary to correct both the racial inequities upheld by the Supreme Court in the infamous Dred Scott decision, and the economic injustices allowed by Barron v. Baltimore.
The Fourteenth Amendment was ratified on July 28, 1868, but only after passage of the punitive Reconstruction Acts. Re-admittance of former Confederate states to the Union was conditioned upon that state’s vote to ratify, a coercive measure still cited by opponents of the Amendment who argue that ratification under duress should be considered ineffective.
A reading of the legislative history of the Fourteenth Amendment strongly suggests that its supporters saw the Privileges or Immunities Clause as the vehicle to incorporate the Bill of Rights, that is, to impose the limitations on federal action enumerated in the first eight Amendments on state and local government actors as well. The Supreme Court, however, declined to read the Clause in that way, and in The Slaughterhouse Cases, dramatically limited its scope.
The Slaughterhouse Cases
The State of Louisiana awarded a 25-year monopoly to Crescent City Livestock Landing and Slaughter-House Company. Other abattoirs were ordered closed, and the legislature authorized the fining of competing businesses. The Court majority dismissed claims that this favoritism violated the Fourteenth Amendment, and narrowed the Privileges or Immunities Clause into virtual irrelevance.
In a 5-4 decision, Justice Samuel Miller held that the first sentence of the Fourteenth Amendment, “All persons born and naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside,” distinguished between two citizenships, one of the United States and one of the state. He further held that the second sentence, forbidding abridgment of the Privileges and Immunities of citizenship, applied only to situations in which a state was abridging federal rights.
“The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and it is these which are placed under the protection of Congress…” The Court limited application of the Equal Protection Clause to protection “of the Negro Race,” and upheld the grant of the monopoly as a proper exercise of the state’s duty to protect public health.
Most legal scholars today agree with the four dissenters, who read the protections of the Amendment more broadly. The Slaughterhouse Cases ignored the plain effect of the language, and gutted the Privileges or Immunities Clause. In America’s Constitution: A Biography, Yale law professor Akhil Amar explains why credible legal scholars today do not consider the SlaughterhouseCases a plausible reading of the Amendment.
Current Status and Interpretation
Perhaps the best summary of the unfortunate and continuing consequences of the opinion in the Slaughterhouse Cases was written by Kimberly C. Shankman and Roger Pilon in a 1998 Cato Policy Brief, No. 326, Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government.
Although intense litigation under the [Fourteenth] amendment should not surprise, what is surprising is that most of it has taken place not under the Privileges or Immunities Clause, which was meant to be the principal font of individual rights, but under the Due Process and Equal Protection Clauses. Using the Due Process Clause, judges have “incorporated” most of the Bill of Rights under the Fourteenth Amendment, then applied those protections against state actions to find the actions unconstitutional. More recently, judges have used the Equal Protection Clause to the same effect and others, raising all manner of questions about the scope of their authority and the grounds of their reasoning. In all of this, however, neither liberals nor conservatives have given more than a moment’s attention to the cardinal clause of the Fourteenth Amendment, the Privileges or Immunities Clause, which remains uncited, unlitigated, uncommented upon–in a word, unnoticed. Whole chapters of modern constitutional law casebooks are devoted to due process and equal protection while privileges or immunities are dismissed in a few pages at most. Like the bark of the hound in the canon of Sherlock Holmes, what is most striking about the Privileges or Immunities Clause in the canon of Constitutional law is its absence.
Bibliography
Amar, Akhil Reed. 2005. America’s Constitution: A Biography. Random House.
Chemerinsky, Erwin. 1992. “The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise,” Loyola of Los Angeles Law Review. Vol. 25: 1143-1158. June.
Magliocca, Gerard N. 2013. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York University Press.
Shankman, Kimberly C. and Roger Pilon. 1998. Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government. Cato Policy Analysis, No. 326.
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Sheila Suess Kennedy
Professor of Law and Public Policy, School of Public and Environmental Affairs
