Ilan Wurman Responds to Commentary on his Slaughter-House EssayMichael Ramsey

At Law & Liberty, Ilan Wurman responds to commentary on his essay on overruling the Slaughter-House Cases: Long Live Formalism.  From the introduction: 

In their thoughtful responses to my lead essay, Evan Bernick, James Rogers, and Allen Mendenhall do not challenge my reading or historical account of the Privileges or Immunities Clause, according to which the clause would be an equality provision that cannot provide support for the incorporation of the Bill of Rights. Instead, they make a number of orthogonal, albeit important and interesting, points—whether conservatives should want to revive the clause, whether my methodology is consistent with modern originalism, whether the Slaughter-House Cases would have come out the same way anyway, and whether the reconstruction amendments are even validly ratified. 

Let me start with Bernick, who does raise issues that might cast doubt on my interpretation of the Privileges or Immunities Clause. In response to my claim that the clause was intended to constitutionalize the Civil Rights Act of 1866, Bernick correctly points out that many (if not most) Republicans believed that the Act was already constitutional under the Thirteenth Amendment. But that does not answer the problem raised by James Garfield and others: that even if the Act were authorized by the Thirteenth Amendment, nothing would prevent future Congresses from repealing it.

More to the point, however, this claim about the Thirteenth Amendment provides further support for my reading of the Privileges or Immunities Clause. That is because no one thought the Thirteenth Amendment incorporated the Bill of Rights against the states. No one thought the abolition of slavery meant that federalism was also abolished and that Congress could define contract and property rights in all the states. All it meant, even under the Republican view, was that the formerly enslaved were now citizens and that Congress could compel the states to treat those citizens equally with their white citizens. Of course, that broad reading of the Thirteenth Amendment that authorized the Civil Rights Act (which insisted on this equality) did not have universal support, did not obviously follow from the text, and did not solve the problem of future Congresses repealing any enforcement legislation. Hence the Fourteenth Amendment was necessary, and in this sense did much more than merely “confirm” the constitutionality of the Civil Rights Act. It secured it against all counterarguments and against future repeal.

And here are the commentaries on the initial essay:

James R. Rogers: What Would It Mean to Reverse Slaughter-House?

Evan Bernick, The Constitutional Political Economy of Carcass Disposal

Allen Mendenhall, Should We Kick the Sleeping Dog?