Privileges or Immunities Clause challenged

The United States Constitution is a document that William Lloyd Garrison, the great abolitionist, described as “covenant with death and an agreement with hell” for the original sin of slavery, which the Constitution not only protected but nourished.[i]    Constitutional conservatives, and strict constructionists in particular, often cite the original constitution and its conception of federalism as a basis for denying justice or overturning progressive legislation, by striking down child labor laws, New Deal programs,  or more recently a ban on hand guns on school grounds.    Many of these jurists dismiss the notion that constitutional meaning could ever change for contemporary circumstances, that the constitution is a ‘living document.’[ii]  

Regardless of whether one agrees with originalists, there is at least one sense in which the constitution truly is a ‘living document’:  by Amendment, as provided by Article V.   Perhaps no Amendment is more important or sweeping than the Fourteenth Amendment.   It’s provisions are the most litigated in the Constitution.   It’s clear grant of national citizenship transformed the nation by reversing the infamous Dred Scot decision, which denied US citizenship to all persons of African descent, free or slave.   Along with its brothers, the 13^th and 15^th Amendments, it attempted to extirpate the original sin that Garrison and so many others righteously condemned.  

Yet, in the years that followed and in the aftermath of Reconstruction, much of that work was systematically unwound.    In the 1873 Slaughterhouse Cases decision, the Supreme Court stripped out the provision of the 14^th Amendment, the Privileges and Immunities clause, intended to be the principle source of rights for citizens, and newly freed slaves in particular, from state interference.   A decade later, in the Civil Rights Cases, the Supreme Court held that Congress lacked authority under the enforcement provisions of the 14^th Amendment to prohibit discrimination in private employment or in non-governmental settings.   Finally and most infamously, culminating two decades of jurisprudence, the Supreme Court ruled, with only one dissenting voice, that state statutes mandating separate carriages for whites and blacks did not violate the equal protection clause of the Fourteenth Amendment.    Bit by bit, the 14^th Amendment largely reversed.  

Today, all but one of those decisions still stands.  Plessy v. Ferguson, the apogee of decades of retrogression, was overturned in what few doubt to be one of the greatest cases in Supreme Court history, and one of it’s most courageous moments: Brown v. Board of Education.   Only the most flagrant of the post-Civil War decisions has been reversed, but not the most pernicious.   Because of its far reaching implications, some scholars have described Slaughterhouse as the worst decision in American history.[iii] 

Remarkably, 140 years later, the Supreme Court on March 2^nd will be asked to reconsider the decision that began the slow march to Plessy.    A decision to overturn Slaughterhouse could open the door to a new era in Supreme Court jurisprudence.   A revived Privileges and Immunities Clause bring into focus often neglected questions about the meaning and rights of citizenship.  It would be a natural textual home for the right announced in Roe v. Wade, a right vital to full citizenship and equal participation.    It would be the source of a fundamental right to education, which the Supreme Court in Brown described as “the foundation of good citizenship.”   State laws that disenfranchise millions of black, brown, and white felons, denying them full citizenship, would have to be reviewed. 

The Fourteenth Amendment was intended to redefine the relationship between the federal government and the states.   It was a rejection of the kind of federalism that is trumpeted today as a rejection of federal interference in local matters.   Fastened with the Fourteenth Amendment, the United States Constitution was intended to be a constitution of national primacy (not state primacy), with a greatly expanded role for the federal government.     The Radical Republicans that drafted it had a very different vision than those that drafted the Constitution of 1787.  Yet, because of Slaughterhouse, our gaze falls back too far, and we fail to appreciate the Constitution of 1870.   Originalists would do well to consider the difference.   Perhaps, with Slaughterhouse overturned, they may well do so.   

 McDonald v. City of Chicago is Case No. 08-1521.  Oral argument is scheduled for March 2^nd, 2010. 

[ii] Antonin Scalia and Amy Gutmann, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1998), 36-41.

[iii] Charles L. Black, Jr. A New Birth of Freedom 55 (1997).