Wednesday, August 26, 2009

Article in William & Mary Bill of Rights Journal: Rescuing the Fourteenth Amendment Privileges or Immunities Clause

I'm pleased to report that my article entitled "Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How "Attrition of Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" will be published in the upcoming volume of the William & Mary Bill of Rights Journal.

The article is available at SSRN and BePress Selected Works.

Here is the abstract:

"This Essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Fourteenth Amendment Privileges or Immunities Clause, which has lain dormant since the Court's erroneous 1873
SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The Essay makes the unique argument that the textual basis for the
SlaughterHouse Court's holding regarding the clause - i.e., the lack of parallel textual construction in the Section One's first two sentences 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 in 1866 of the Joint Committee on Reconstruction), the analysis played a vital role in leading the Court ot its 1898 conclusion that the word "person" in Section One's Due Process Clause should be read to include artificial persons, including corporations - an interpretation substantially broader than that given previously by the SlaughterHouse majority.

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

(I have previously posted here on related topics.)