Setting incorporationism straight: a reinterpretation of the Slaughter-House Cases.

• Author: Newsom, Kevin Christopher

In 1873, in the Slaughter-House Cases ... the Supreme Court said the phrase "privileges and immunities" had nothing to do with applying the Bill of Rights to the states. The vote was a narrow 5-4--one vote switch might have changed the course of history.(1)

1. INTRODUCTION

   The Supreme Court's decision last Term in Saenz v. Roe(2) was, at once, both run-of-the-mill and quite remarkable. There is nothing particularly earthshaking about the result the Court reached--specifically, that California could not constitutionally limit welfare payments to a new resident during his first year in California to the amount provided by the state from which he had moved.(3) What makes the decision in Saenz truly newsworthy--and potentially a watershed--is the way the Court arrived at the result that it did: For the first time in sixty-five years, and only the second time in history, the Court struck down a state statute on the ground that it violated the Fourteenth Amendment's Privileges or Immunities Clause.

   The Privileges or Immunities Clause provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States."(4) Prior to Saenz, the Supreme Court had relied on the Clause to invalidate a state statute only once, when, in the 1935 case of Colgate v. Harvey,(5) it invoked the Clause to set aside a state income tax charged against in-state residents on interest and dividend income earned outside the state. The Court's initial foray into the realm of federal "privileges [and] immunities" was short-lived. Colgate was overruled in 1940 by Madden v. Kentucky,(6) and the Privileges or Immunities Clause has remained dormant ever since--at least until Saenz, that is.

   So, does Saenz signal an out-and-out "Privileges or Immunities Revival"?(7) Only time will tell. At the very least, however, the decision seems to indicate a willingness on the part of the current Court to reconsider the role, if any, that the Privileges or Immunities Clause ought to play in modern constitutional law. Even Justice Thomas, dissenting in Saenz, acknowledged that he "would be open to reevaluating [the] meaning" of the Privileges or Immunities Clause "in an appropriate case."(8) But before any meaningful reconsideration of the Privileges or Immunities Clause's role can occur, the Court will have to grapple with several important issues, two of which Justice Thomas specifically identified. First, the Court should "endeavor to understand what the framers of the Fourteenth Amendment thought [the Clause] meant."(9) Second, the Court will need to "consider whether the Clause should displace, rather than augment, portions of [modern] equal protection and substantive due process jurisprudence."(10) There is, in addition, a third, and ultimately even more important, question the Court must address if it is serious about resuscitating the long-dormant Privileges or Immunities Clause: What about the Slaughter-House Cases?(11)

   In contemporary constitutional discourse, Slaughter-House stands for one simple truth: that the Privileges or Immunities Clause is utterly incapable of performing any real work in the protection of individual rights against state interference, and that any argument premised on the Clause is therefore a constitutional non-starter. Novice students of constitutional law, upon encountering the Privileges or Immunities Clause for the first time, are told by their professors (pausing ever so briefly in the headlong rush toward the real meat of the Fourteenth Amendment, the Due Process and Equal Protection Clauses): "Privileges or Immunities? Don't worry about it. Justice Miller and the Slaughter-House Court decimated that provision way back in 1873." Likewise, recent law-school graduates preparing for the bar examination are instructed that "Privileges or Immunities Clause" will never be a correct answer and can be eliminated out of hand. The fact is that no one reads the Privileges or Immunities Clause anymore. For that matter, no one reads the Slaughter-House Cases anymore. Today, "Slaughter-House" is really just shorthand--a codeword of sorts--for something much larger, namely, the complete evisceration of a significant part of Section 1 of the Fourteenth Amendment.

   Despite its practical irrelevance, the Privileges or Immunities Clause is today enjoying something of a renaissance among constitutional scholars. During the past decade, a number of commentators--most notably, Akhil Amar, Michael Kent Curtis, and Richard Aynes--have scoured the historical materials surrounding the framing of the Fourteenth Amendment and have demonstrated that there was substantial consensus among members of the Thirty-Ninth Congress who crafted the Fourteenth Amendment that the Privileges or Immunities Clause (and not the Due Process Clause, as is commonly assumed today) would serve as the primary vehicle for protecting individual rights against state infringement.(12) More specifically, and more importantly for our purposes, these scholars conclude that the Framers of Section 1 intended the Privileges or Immunities Clause to "incorporate" most, if not all, of the protections of the federal Bill of Rights against state governments.(13)

   Potent as it may be, however, this argument from original intent only half answers objections to an incorporationist interpretation of the Privileges or Immunities Clause. There remains the thorny issue of Slaughter-House. This Article therefore seeks to pick up where Professors Amar, Curtis, and Aynes have left off, and to advance the incorporationist understanding of the Privileges or Immunities Clause beyond its most formidable nemesis: Justice Samuel Miller's opinion for the Court in the infamous Slaughter-House Cases.

   A number of prominent incorporationist scholars, including Curtis and Aynes, as well as Laurence Tribe and David Richards, have expressly called on the Supreme Court to overrule Slaughter-House.(14) I must admit that the thought of the Supreme Court overruling Slaughter-House is enticing. But is it really necessary for the Court to take such a dramatic step? In my view, the Framers' purpose of incorporating Bill of Rights freedoms through the Privileges or Immunities Clause may be accomplished without disturbing the Slaughter-House precedent. In this Article, I argue, contrary to the almost crushing weight of conventional wisdom,(15) that Justice Miller's majority opinion in Slaughter-House did not foreclose the possibility of incorporating provisions of the Bill of Rights through the Privileges or Immunities Clause. Not once in the decision did the Court seriously suggest--much less hold--that the Privileges or Immunities Clause did not incorporate Bill of Rights freedoms, as the Fourteenth Amendment's Framers had clearly said the Clause would. In fact, to the extent that the Court's opinion in Slaughter-House says anything about incorporation--and I, for one, believe that it does--it suggests that core Bill of Rights freedoms are among the "privileges [and] immunities of citizens of the United States" protected by the Fourteenth Amendment.(16) And although a handful of commentators have hinted at a belief that Justice Miller's Slaughter-House opinion might be read to leave the door open to incorporation,(17) none has yet provided a sustained defense of an incorporationist interpretation. Articulating such a defense is precisely what this Article aims to do. My alternative, incorporationist reading of Miller's Slaughter-House opinion, I hope to show, is not only strongly suggested by both the text and the context of the decision itself, but is also firmly supported by core tenets of Miller's own jurisprudential philosophy.

   In Part II, I provide a brief sketch of the orthodox, anti-incorporationist interpretation of the Slaughter-House opinion. For obvious reasons, I expect to break no new ground in Part II. In fact, the unoriginality of my Part II illustrates precisely the point I am trying to make about the conventional reading: Part II chronicles an interpretation of Slaughter-House upon which, as one scholar has put it, "virtually every modern commentator is in agreement."(18) In Part III, I shift gears and delve deeply into the circumstances surrounding the Slaughter-House litigation and carefully dissect the opinions of Justice Miller and of the dissenting Justices. I hope to show that, contrary to conventional wisdom, there is nothing in Miller's opinion that negates a role for the Privileges or Immunities Clause in the incorporation of Bill of Rights freedoms against the states, and that, in fact, a more plausible reading of Miller's opinion specifically preserves such a role for the Clause. Miller's opinion suggests--both on its own terms and, even more clearly, in the context of the radical, freewheeling theories of the Fourteenth Amendment offered by counsel for the plaintiffs and endorsed by the dissenting Justices--a "compromise" interpretation of the Privileges or Immunities Clause. Under this compromise interpretation, the Clause serves as a vehicle for the protection, not of all personal rights, but of what I will call "uniquely federal" rights, a category that Miller seemed in Slaughter-House to suggest included many of the freedoms enumerated in the first eight amendments to the Constitution.

   In Part IV, I take a step back to survey the "bigger picture." I hope to show that my incorporationist interpretation of Miller's Slaughter-House opinion is not merely a wrenching of the opinion's text or a manipulation of ambiguous language, but is instead one that is confirmed by convincing evidence relating to Justice Miller's own general jurisprudential philosophy and that accords with Miller's voting patterns in other Reconstruction-era cases. Finally, Part V concludes by tracing the practical implications of my concededly unorthodox--though I believe ultimately correct--understanding of Slaughter-House. Most obviously...