“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…
