Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How 'Attrition of Parliamentary Processes' Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House
27 Pages Posted: 26 Aug 2009 Last revised: 3 Dec 2009
Date Written: August 26, 2009
This essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Fourteenth Amendment Privileges or Immunities Clause, which has lain dormant since the Court's erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States. The essay makes the unique argument that the textual basis for the Slaughter House Court's holding regarding the clause - i.e., the lack of parallel textual construction in the Section One's first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call "attrition of parliamentary processes". This analysis is not new to the Supreme Court. Borrowed from an oral argument made before the U.S. Supreme Court in 1882 by Roscoe Conkling (a member in 1866 of the Joint Committee on Reconstruction), the analysis played a vital role in leading the Court to its 1898 conclusion that the word "person" in Section One's Due Process Clause should be read to include artificial persons, including corporations - an interpretation substantially broader than that given previously by the SlaughterHouse majority. Just as the Court in the last decades of the nineteenth century corrected the Court’s too-narrow interpretation of Section One "personhood", so it should now - finally - begin to correct its earlier misreading of the distinction in Section One between U.S. and state citizenship in order to restore the privileges or immunities clause to its full intended effect of applying the Bill of Rights (and more) to the States.
Keywords: privileges or immunities clause, fourteenth amendment, SlaughterHouse, incorporation, Second Amendment
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