Document Type

Article

Publication Date

2023

Abstract

This Essay offers a revisionist account of the Slaughter-House Cases. It argues that the opinion’s primary significance lies not in its gutting of the Privileges or Immunities Clause but in its omission of a people’s archive of slavery.

Decades before the decision, Black abolitionists began compiling the testimonies of refugees who had fled slavery. By 1872, this archival practice had produced a published record of Black struggle and become a platform for the celebration of Black resistance and a new era of Black leadership. Although the lead compiler of this record sent a copy to the Chief Justice, the Court ignored it. Instead, the Court began the clock of constitutional time with the death of slavery, portraying Black people as helpless victims of a temporary wave of postwar rogue violence. In doing so, the Court eschewed an interpretation of the Reconstruction Constitution as one born from a Black struggle against collective wrongs in favor of one of individual rights vindication by a guiltless federal judiciary.

By placing this archive alongside the opinion, this Essay illuminates the profound gap between America’s constitutional discourse of political universality and its practice of exclusion. To narrow this gap, this Essay recovers an emancipatory reading of Slaughter-House. Developed by one of America’s first Black lawmakers in 1874, this interpretation pairs the opinion’s omitted histories with its plain text to reread Slaughter-House not as courts know it today but as an affirmation of Congress’s powers to remedy past wrongs and ensure the equal protection of America’s citizens.

Disciplines

Constitutional Law | Fourteenth Amendment | Law

Comments

This article originally appeared in 123 Colum. L. Rev. 1135 (2023). Reprinted by permission.

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