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Slaughter-House, Privileges Or Immunities, and Section Five Enforcement Powers James W Masthead Logo Kentucky Law Journal Volume 91 | Issue 1 Article 4 2002 Re-readings and Misreadings: Slaughter-House, Privileges or Immunities, and Section Five Enforcement Powers James W. Fox Jr. Stetson University Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons, and the Fourteenth Amendment Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Fox, James W. Jr. (2002) "Re-readings and Misreadings: Slaughter-House, Privileges or Immunities, and Section Five Enforcement Powers," Kentucky Law Journal: Vol. 91 : Iss. 1 , Article 4. Available at: https://uknowledge.uky.edu/klj/vol91/iss1/4 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Re-readings and Misreadings: Slaughter-House, Privileges or Immunities, and Section Five Enforcement Powers BY JAMES W. Fox JR. INTRODUCTION T he Supreme Court has inspired mountains of commentary with recent decisions in two separate areas of Fourteenth Amendment jurisprudence. On the one hand, the Court has suggested in Saenz v. Roe' that the Privileges or Immunities Clause of the Fourteenth Amendment may be re-opened as a source of constitutional rights. On the other, the Court has repeatedly and forcefully sought to restrain congressional powers to interpret and enforce the Fourteenth Amendment under the Enforcement Clause of Section Five. While each of these areas of Fourteenth Amend- ment analysis has seen its share of commentary, little has been said by either the Court or the commentators about the connections between these Clauses of the Fourteenth Amendment. This Article contends that the historical background of the framing and the early application of the Fourteenth Amendment reveal an intimate and arguably essential connec- tion between the proper interpretation of the Privileges or Immunities Clause and congressional enforcement powers under Section Five of the United States Constitution. Assistant Professor of Law, Stetson University College of Law. J.D. 1990, University of Michigan Law School. Copyright © 2002 James W. Fox Jr. All rights reserved. I owe special thanks to my colleagues: Michael Allen, Robert Batey, Robert Bickel, Mark Brown, and Peter Lake, who commented on early drafts of this Article, Richard Aynes, Michael Kent Curtis, Michael McConnell, William Rich, and Bryan Wildenthal, whose work inspired my efforts and who provided excellent advice on short notice, and my colleagues at Stetson who allowed me to refine ideas in our Faculty Workshop Series. I also thank my research assistant Kelley Cramer, the Stetson faculty support staff, and staff of the Stetson Law Library. Finally, my work on this project was supported by the Stetson University College of Law Research Grant Program. ' Saenz v. Roe, 526 U.S. 489 (1999). KENTUCKY LAW JOURNAL [VOL. 91 A common focal point for discussions about the Privileges or Immuni- ties Clause is the Slaughter-HouseCases The long and widely held view of Slaughter-Houseis that Justice Miller's opinion for the Court eviscer- ated the Privilege or Immunities Clause and that the Clause has been a nullity ever since. Two scholars have recently attempted to explode this reading of Justice Miller's opinion. Kevin Newsom, through a close reading of Justice Miller's opinion and a detailed examination of Miller's jurisprudence, argues that Justice Miller in fact supported selective incorporation of the Bill of Rights through the Privileges or Immunities Clause.' Professor Bryan H. Wildenthal presents a similar reading of Miller's Slaughter-House opinion and argues that such a reading was the baseline ofcontemporaneous interpretations of the Clause in 1873 when the case was decided." This Article contends that these revisionist interpretations of Slaughter- House, even if partially correct as an interpretation of the Court's opinion on the issue of incorporation, wrongly perpetuate Justice Miller's misreading of the Privileges or Immunities Clause. Revisionists focus on the wrong misreading: while it may be that scholars have gotten Slaughter- House wrong, the more important problem is that Slaughter-Housegot the Privileges or Immunities Clause wrong. The revisionists' misreading of the Privileges or Immunities Clause stems, in part, from their failure to grapple with the ambiguities of the historical evidence surrounding the Clause. For example, revisionists contend that the Clause does not encompass natural rights.5 Yet there is 2The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). 3Kevin Christopher Newsom, SettinglncorporationismStraight: A Reinterpre- tation of the Slaughter-House Cases, 109 YALE L.J. 643, 649 (2000). "Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Under- standing in Court and Congress on Incorporationof the Bill of Rights in the FourteenthAmendment, 61 OHIO ST. L.J. 1051(2001) [hereinafter Wildenthal, The Lost Compromise]. See also Bryan H. Wildenthal, How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional- Historical Revisionism, 23 T. JEFFERSON L. REv. 241 (2001) [hereinafter Wildenthal, How I Learned to Stop Worrying]. For an earlier, less developed exploration of the revisionist view, see Robert C. Palmer, The Parameters of ConstitutionalReconstruction: Slaughter-House,'Cruikshank, and the Fourteenth Amendment, 1984 U.,ILL. L. REv, 739. ' Of the revisionists, Professor Wildenthal is the most willing to acknowledge that some of the framers of the Fourteenth Amendment believed it encompassed natural rights, but he still advocates a limited enumerated-rights interpretation. See infra notes 89-91 and accompanying text. 2002-2003] RE-READINGS AND MISREADINGS significant evidence to the contrary that the revisionists do not adequately address. More importantly, based on a reading of the historical materials surrounding the drafting of the Fourteenth Amendment and its implementa- tion by the Reconstruction Congresses, this Article contends that the Privileges or Immunities Clause and the enforcement powers of Section Five were thought to operate in unison, enabling Congress to determine some of the content of the privileges and immunities of national citizenship beyond a mechanical application of the Supreme Court's interpretation of the Bill of Rights. Ultimately, the revisionists fail to grasp that the historical record reveals a range of possible interpretations of the Clause and its enforcement, a range that modem interpreters need to confront in all its complexity and, ambiguity. Scholars investigating the Court's interpretation of Section Five, to the extent they explore its historical background, tend to focus on the contemporary connection of the Section to other portions of Section One--the Due Process and Equal Protection Clauses--and do not consider the possibility that the more appropriate, and perhaps intended, connection is with the Privileges or Immunities Clause.' Moreover, the Supreme Court, 6 See, e.g., Evan H. Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN. L. REv. 1127, 1158-65 (2001) (discussing historical support for interpreting Section Five consistently with the Necessary and Proper Clause); Ruth Colker, The Section Five Quagmire,47 UCLA L. REv. 653, 662-64 (2000); Ronald D. Rotunda, The Powers of Congress Under Section 5 of the FourteenthAmendment After City of Boeme v. Flores, 32 IND. L. REv. 163, 169 (1998). Important recent exceptions include William J. Rich, Privileges or Immunities: The Missing Link in Establishing CongressionalPower to Abrogate State Eleventh Amendment Immunity, 28 HASTINGS CONST. L.Q. 235 (2001) [hereinafter Rich, Privileges or Immunities: The Missing Link] and Rebecca E. Zietlow, Belonging, Protectionand Equality: The Neglected Citizenship Clause and the Limits of Federalism, 62 U. Prrr. L. REv. 281 (2000). Professor Rich focuses on the effect of the Enforcement Clause on the abrogation of Eleventh Amendment Immunities, which is central to some of the recent Supreme Court cases but is not an issue that I address here. Professor Zietlow focuses on the importance of the Citizenship Clause in supporting congressional actions, and emphasizes that the Citizenship Clause played a role in the Saenz decision. See also Akhil ReedAmar, Intratextualism, 112 HARv. L. REv. 747,824 (1999) [hereinafter Anmar, Intratextualism] (briefly suggesting the possibility that Congress was intended to have the power to define privileges of citizenship); Michael W. McConnell, Comment, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 174-81 (1997) [hereinafter McConnell, Institutions and Interpretation](criticizing the Boerne Court's historical analysis of Section Five and suggesting a congressional role in interpreting the Privileges KENTUCKY LAW JOURNAL [VOL. 91 in a series of recent decisions beginning in 1997 with City of Boerne v. 8 Flores7 and continuing through 2001 with Board of Trustees v. Garrett, has narrowly interpreted the scope of congressional powers to interpret and enforce the Fourteenth Amendment. In doing so, the Court initially relied on poor historical analysis in Boerne and has, for the most part, simply compounded its mistake by repeated cross-citations to Boerne.9 The historical investigation presented by this Article
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