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“Privileges or Immunities”: The genius in the Slaughterhouse Cases
The one thing I love about the law is the interpretive puzzles it sometimes presents. Especially in the context of constitutional law, there are questions that just don’t make sense — at least until something new is added or discovered, and then everything makes sense.
The Reconstruction Amendments are an example of this for me. Like most students of constitutional law, I’ve long tried to understand just what the Supreme Court was doing in its early cases interpreting those amendments. The standard read is that it was just butchering them. The alleged motive was that the Justices didn’t like equality much, and didn’t care for the substance of this second American revolution.
But this has always struck me as just weird. Most of the Justices had been appointed either by Lincoln or Grant. They were committed Unionists. Chief Justice Chase had been an avid abolitionist. Etc. It just didn’t make sense that they would intentionally derail the most important constitutional action since the Founding.
Pamela Brandwein’s work started me down a path that gave me hope that there was sense in these early cases. Her book — Rethinking the Judicial Settlement of Reconstruction (2014) — convinced me that it was more likely we were misreading them than that they were misreading the Reconstruction Amendments. Her work, and an incredible array of great historical scholarship referenced in my book, Fidelity & Constraint (2019) (see chapters 16 & 17), have convinced me that there’s an enormous amount to be learned by taking this history much more seriously. That conviction led me to teach a seminar last term, Reconstruction Originalism, which showed the students (and through their contributions, me) the great potential that these amendments provide to American law still.
Yet the puzzle of the Privileges or Immunities Clause of the 14th Amendment remained — and especially the interpretation of that Clause by the Supreme Court in The Slaughterhouse Cases. In my book, I try to explain and justify that decision through a focus on fidelity to the Court’s role. That seemed right and an advance, but it still left me uneasy.
Until I discovered a student note in the Harvard Law Review, which changed everything for me. This note, published in…
