« Maureen Brady: Uses of Convention History in State Constitutional Law
Michael Ramsey
| Main | Kurt Lash: The State Citizenship Clause [Updated with a Comment from Andrew Hyman]
Michael Ramsey »


Lawrence Lessig on the Slaughterhouse Cases
Earl Maltz

[Ed.: For this guest post we welcome back Professor Earl Maltz, Distinguished Professor of Law at Rutgers Law School.]

In Privileges or Immunities:  A Judicially Restrained and Originalist Understanding [ed.: noted on this blog here], Lawrence Lessig both discusses the original meaning of the Fourteenth Amendment and challenges the traditional reading of the majority opinion in The Slaughterhouse Cases. Professor Lessig begins by asserting that, if given its original meaning, section one of the Fourteenth Amendment would be interpreted to provide Congress with a wide-ranging power to determine the scope of the protections established by the Privileges or Immunities Clause.  But in addition, he contends that the majority opinion in Slaughterhouse adopted a similar reading of that clause.  In particular, Lessig claims that the Slaughterhouse majority was motivated by a desire to limit the role of the judiciary in reviewing the constitutionality of state legislation while at the same time recognizing the power of Congress “fill out the contours of the ‘privileges or immunities of citizens of the United States.’”

In fact, however, nothing could be further from the truth.  In the majority opinion, Justice Samuel Miller did indeed complain that an expansive reading of the Privileges or Immunities Clause would, in his words, “constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights.”  However, Miller placed even greater emphasis on the impact that an expansive vision of the import of the clause would have on the scope of congressional authority, asserting that the broad interpretation advocated by the dissenting justices would  “bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States” and would also allow Congress “to pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions.”  Thus, Miller concluded by asserting that the Privileges or Immunities Clause should be interpreted narrowly in order to avoid “radically chang[ing] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”

These passages belie the claim that the majority opinion in Slaughterhouse was designed to give Congress broad authority to define the nature of the “privileges or immunities of citizens of the United States” for constitutional purposes.  Instead, Justice Miller clearly intended to greatly limit the scope of the powers granted to Congress by the Fourteenth Amendment and, by implication at least, to empower the Court to strike down statutes that exceeded those limitations.  Of course, one might still argue that the interpretation of the Privileges or Immunities Clause envisioned by Professor Lessig is consistent with the original meaning of the Fourteenth Amendment.  However, one thing is crystal clear.  The majority in Slaughterhouse did not embrace any such theory.