Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How "Attrition of Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House

Article excerpt

This Essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Privileges or Immunities Clause, which has lain dormant since the Court's ill-conceived 1873 Slaughter-House Cases decision, should be resurrected in order to apply the Second Amendment to the states.

The Essay makes the novel 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 first two sentences of Section 1 of the Fourteenth Amendment 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 of the 1866 Joint Committee on Reconstruction), the analysis played a vital role in leading the Court to its 1898 conclusion that the word "person" in Section 1 of the Fourteenth Amendment should be read to include not only freedmen but also white people and artificial persons, including corporations - an interpretation substantially broader than that given previously by the Slaughter-House majority.

Just as the Court in the last decades of the nineteenth century corrected the Court's too-narrow interpretation of Section 1 "personhood," so it should now - finally -begin to correct its earlier misreading of the distinction in Section 1 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.

During its 2009-2010 Term, the United States Supreme Court has its best opportunity in generations to rescue the Fourteenth Amendment Privileges or Immunities Clause from its wrongful 1 873 banishment from the Constitution.1 In McDonald v. City of Chicago,2 in which petitioner is asking the Court to apply the Second Amendment to the states,3 the Court may examine - for the first time in its history, really4 - the compelling evidence that the framers and ratifiers of the Fourteenth Amendment intended that the Privileges or Immunities Clause would apply the Bill of Rights, and more, to the states.5 Once examined, the Court may then correct the Slaughter-House Cases ' mistakenly narrow initial reading of the provision,6 and welcome the Privileges or Immunities Clause back, after its 136 year purgatory, into the constitutional fold.7

This Essay is intended to supplement the impressive body of scholarship arguing for a reconsideration of Slaughter-House that, when considered in toto, makes a powerful case for a resurrected Privileges or Immunities Clause.8 Part I briefly discusses the Slaughter-House opinion and its aftermath, summarizing both contemporaneous and modern day criticisms of the case. Part II then engages the Essay's main task of discussing a mostly unexplored discrete aspect of Section 1 of the Fourteenth Amendment: specifically, why the first sentence (the Citizenship Clause) speaks of United States and state citizenship, while the second sentence (the Privileges or Immunities Clause) speaks only of United States citizenship.

The Essay suggests, based on the history of the congressional debates, that the lack of a precisely parallel textual construction between Section l's first two sentences may well have been the inadvertent product of a legislative process involving numerous "different proposals, independent of each other, originating in different minds, and at different times, not in the order in which they now stand . . . [but which] came to be collected in one formulated proposal of [the] amendment."9 We might describe this somewhat haphazard accretion as the product of "the attrition of parliamentary processes."10 This analysis (including the phrase itself) is borrowed from an oral argument made before the U.S. Supreme Court in 1882 by Roscoe Conkling11 (himself a member of the 1866 Joint Committee on Reconstruction), which played a vital role in leading the Court to its 1898 conclusion that the word "person" in Section 1 of the Fourteenth Amendment should be read to include not only freedmen but also white people and artificial persons, including corporations12 - an interpretation substantially broader than that given previously by the Slaughter-House majority. …