How a Post–Civil War Supreme Court Decision Dismantles Sanctuary Cities


Shortly after the Civil War and the passage of the 14th Amendment, the US Supreme Court decided the Slaughter-House cases.  Historically, many people have looked at these decisions as severely limiting the ability of the federal government and federal courts from interfering with state government functions by using the Privileges and Immunities clause of the 14th Amendment.  Regardless of your position on that debate, this article looks at how the decision by Justice Miller in 1873 actually provides a strong precedent for using the Privileges and Immunities clause of the 14th Amendment against all sanctuary states, counties, and cities.

Privileges and Immunities of all United States citizens

In the Slaughter-House decision, Justice Miller writes :

Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.

In layman’s terms, Justice Miller was saying that states and cities have a wide latitude to regulate their internal affairs such as where to allow Slaughter-Houses to be setup around New Orleans.  He leaves open the issue as to what Privileges and Immunities all citizens of the United States have that can’t be infringed upon by the State.  Using the analogy of a Members Only Recreation Club, this paper lays out a strong case for privileges that the Founders and writers of the 14th Amendment would have presumed to be obvious.

Members Only Recreation Club

This club has been in existence for over 200 years.  It started as a phenomenal Golf Course, and has grown to include a Swimming Complex, Rock-Climbing, and Tennis Courts.   The members have made major sacrifices to constantly improve the club and make it world class.  Due to its reputation, there is a waiting list of 10 years for new members to join the club.  All new members, who are not related to existing members, must pay a $20,000 one-time fee.  Members are allowed to bring guests for a $50/day fee, and must pay $2,000/year to maintain their membership.

As the Recreation Club grew over time, the specialties and complexities of managing the club became extensive.  To divide management responsibilities, members select their favorite sport: golf, swimming, rock-climbing or tennis.  Members become voting members for the operation of their favorite sport.  For instance, all of the golf voting members vote to hire the staff to manage the golf course, and set the rules specific to the golf course.  When a Recreation Club member’s interests change, they are free to change their voting membership to any one of the other sports.

There are a number of common needs for all areas of the Recreation Club that are handled by a Club Management that is voted on by all members.  First and foremost is the need to provide protection against the use of the club by non-members, and to protect against outside threats such as bears, wildcats and snakes.  The water, lighting, locker-rooms, rest-rooms, parking, walkways and internet access are all shared between the various sports areas.  To protect the members of the club, the Central Management is responsible for checking in all members at the front desk upon arrival.  In addition, the Central Management walks through all areas at noon and 4PM to verify membership each day.

Problems at the Swimming Complex

The people who run the Swimming Complex feel sorry for their many poor friends who live in the nearby city and could never afford membership.  They don’t think it would hurt the club to sneak them in by having them cross through the brush behind the club and climb over the protective fence.  When the Club Management comes through at Noon and 4PM for membership checks, the Swimming Complex staff plays a giant game of Marco-Polo in the pool.  This way, anyone who isn’t supposed to be at the club can swim underwater and pretend they don’t hear people speaking to them.   If a particularly aggressive Club Management person is persistent in their membership check, the Swimming Complex staff will impede them and vouch for their friend.

Negative effects on all members from the Swimming Complex’s rule breaking

What the people who run the Swimming Complex think is a virtuous act, is actually having the following negative consequences on the entire Recreation Club membership:

  1. The utility and maintenance costs for the entire club increase significantly.
  2. The common locker rooms are overcrowded.  Thievery increases and there aren’t enough lockers for everyone.  There are lines for the restrooms, and they seem to be out of soap and toilet paper half the time. 
  3. Many club members do not feel safe in the swimming pool because they don’t recognize the people hanging around the area.  The people who swim laps for exercise are interfered with at noon and 4PM when everyone who is not supposed to be at the club comes and jumps in the pool to avoid the membership check.
  4. People keep getting injured sneaking into the club from climbing over the rear wall and through the bushes.  They get serious cuts and expose other swimmers to disease when they jump in the pool to avoid detection.

Questions regarding Privileges raised by this analogy

Reflecting on the analogy of the Members Only Recreation Club, the following questions should be raised regarding the fundamental privileges of all citizens of the United States.

  1. Do all US citizens have the right to expect that the Federal and all State governments will do their best to protect their life, liberty and property from people who they know are not legally in their country?
  2. Do all US citizens have the right to expect that the Federal and all State governments will make their best efforts to identify and remove those who are not legally in their country?
  3. Do all US citizens have the right to expect that the Federal and all State governments will not tax them to support people who are not legally in their country?

Examples of Privileges and Immunities directly from the Slaughter-House decision

Justice Miller indicated in 1873 that the Supreme Court would not define all of the Privileges and Immunities for United States citizens, but he provided a few obvious examples of Privileges from the United States Constitution:

  1. to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices to engage in administering its functions.
  2. right of free access to its seaports
  3. to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government
  4. right to peaceably assemble and petition for redress of grievances
  5. the privilege of the writ of habeas corpus
  6. The right to use the navigable waters of the United States, however they may penetrate the territory of the several states
  7. a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State

Standing for Court Cases

As a non-lawyer who loves to study American history and constitutional law, the author speculates that states that diligently cooperate with the Department of Homeland Security, and are trying to use E-Verify to make sure that employees are here legally, could have standing to sue sanctuary states on behalf of their citizens.  A myriad of federal government programs unfairly funnel money away from the diligent states and toward the sanctuary states.  This financial loss could be quantified, and if diligent states sued sanctuary states, the case would go directly to the U.S. Supreme Court as the court of original jurisdiction.

Helping more people by helping them in their own countries

It may seem counter-intuitive, but letting a few people come into our country wrongly may be impeding our ability to help many more in their home countries.  The problem is that the United States incurs significant costs to have them here (medical, schools, benefits, wear and tear on facilities, housing, traffic, environmental, etc.) The United States is arguably the most charitable country in the world.If our citizens weren’t burdened with the high costs of illegal immigration, they would have much more energy and money to help those in other countries.In this way, many more people could live happier lives in their home countries rather than under the approach being taken today.

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