99 Pages Posted: 21 Jan 2003
This Article wears two hats: on the one hand it responds to recent revisionist re-readings of Justice Miller's opinion in the Slaughter-House Cases, and on the other hand it seeks a historical connection between two areas of Fourteenth Amendment jurisprudence invigorated by recent Supreme Court decisions. On the latter point I argue that the historical background of the framing and early application of the Fourteenth Amendment reveals an intimate and essential connection between the proper interpretation of the Privileges or Immunities Clause (an issue hinted at by the Court in Saenz v. Roe) and congressional enforcement powers under Section Five (an issue actively addressed by the Court in City of Boerne and its progeny).
The Article's architecture is as follows: Part One critiques the Slaughter-House revisionists, arguing that they provide an overly charitable reading of Justice Miller's opinion on the question of the incorporation of the Bill of Rights. Part Two explores the historical evidence from congressional debates about the Amendment and simultaneous congressional legislation such as the Civil Rights Act of 1866 and the Freedman's Bureau Act and then critiques the revisionists' implicit adoption of Miller's anti-natural rights interpretation of federal citizenship privileges. Part Three develops the idea of the congressional power of interpretive enforcement of the Privileges and Immunities Clause, primarily through a close reading of some of the congressional actions throughout Reconstruction, including the Anti-Peonage Act, the Enforcement (Anti-Klan) Act of 1871 and the Civil Rights Act of 1875. This Part argues that Congress took a fairly broad view of the Privileges or Immunities Clause and its own powers prior to the Supreme Court's decision in Slaughter-House, and that Slaughter-House re-directed congressional discourse away from a more expansive, fundamental rights interpretation of the Clause and toward a more constrained equality-of-rights interpretation. Finally, Part Four discusses the final blow to congressional development of the Privileges or Immunities Clause, the Civil Rights Cases.
This Article suggests that if it is true that Congress should play an important role in developing the contours of the Privileges or Immunities Clause, then actions by Congress which are based on its understanding of the Clause should be accorded more deference than currently granted by Court. By re-uniting the historical understandings of the Privileges or Immunities Clause and the Enforcement Clause modern interpreters might find a plausible but overlooked constitutional basis for congressional actions to protect the rights of groups such as women, the disabled, and religious minorities.
Keywords: Slaughter-House, Privileges or Immunties, Enforcement Powers, Fourteenth Amendment
JEL Classification: K1, K3, N4
Suggested Citation: Suggested Citation
Fox, James W., Re-Readings and Misreadings: Slaughter-House, Privileges or Immunities and Section Five Enforcement Powers. Kentucky Law Journal, Vol. 91, 2002-2003. Available at SSRN: https://ssrn.com/abstract=354081 or http://dx.doi.org/10.2139/ssrn.354081