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Mark Pulliam’s Defense of Slaughterhouse: A Response

Mark Pulliam has graciously responded to my post on the Slaughterhouse Cases. As readers will remember, Pulliam argued that the Slaughterhouse Cases should continue to be followed out of fear of the mischief that would be produced by overruling it. I argued that the originalism requires us to follow the original meaning even if we are concerned about the consequences of following it for certain provisions.

I want to pursue this debate a bit longer. The point of debates is to clarify disagreement and move the parties closer. Hopefully, we can achieve one or both of these objectives.

Pulliam defends the Slaughterhouse Cases on a number of grounds. But I find it hard to sympathize. To me, the strongest argument for his position is the following. If one is seeking to overturn a precedent as inconsistent with the original meaning, then one ought to have some good notion of the original meaning of the relevant provision. If we do not, then we should not overturn the case.

While the strongest argument for his position, this argument is not inevitable. After all, there are various alternatives to Slaughterhouse: Kurt Lash’s view that the Privileges or Immunities Clause mainly incorporates the Bill of Rights, John Harrison’s view that the Clause prohibits arbitrary discrimination, Randy Barnett’s view that the Clause protects natural and other individual rights, and Chris Green’s view that the Clause protects individual common law rights that largely prevail throughout the country (with which I agree). I believe each of these views is superior to Slaughterhouse. So it is a bit strange to keep Slaughterhouse on the ground that no one of the competitors is accepted by everyone, even though all of these competitors are superior to Slaughterhouse. In other words, it would be odd to keep Slaughterhouse even though it is the worst interpretation of all of the theories.

The interesting thing here is that not all of these contending views would be uncongenial to Pulliam. Harrison’s view would allow him to avoid both incorporation of the Bill of Rights and protection of unenumerated common law rights. Lash’s view would allow him to mainly avoid unenumerated rights, although it would require him to accept incorporation. If I were Pulliam, I would adopt one of these views (if I became sincerely convinced it was correct).

But doing so would require that Pulliam read the recent literature on these issues and make an informed decision. That may not be how he wants to spend his time, although I would note that this literature is quite interesting. But if Pulliam does not read the literature, I think it becomes much more difficult for him to reject these positions as hopelessly conflicted. If he read it, he might conclude that one of the approaches—perhaps Harrison’s, which might be most congenial to him—is correct.

In the end, his position would be more convincing if he adopted one of these theories. He could defend the courts not protecting unenumerated rights based on a supported interpretation of the Constitution rather than based on a case regarded as wrong by virtually everyone. It is true that Robert Bork argued that the Amendment could not be understood, but we have come a long way since Bork looked at these matters. Pulliam could benefit from this scholarship.

Reader Discussion

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on March 27, 2019 at 09:39:42 am

The "new" originalist argument against Bork's position on the Slaughter-House Cases seems to be : No one can agree what the clause means, but it is definitely not an ink blot.

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mark Pulliam
on March 27, 2019 at 09:59:57 am

Scholars of necessity range themselves on all sides of any issue, so that there will never be a "consensus." In this way employment is maximized. Pulliam can read the law journals until he collapses from exhaustion and will find he has merely run in a circle. Looking to scholars for resolution of this matter is pointless, as they have no power to resolve it. What is needed is a bloc of originalist-inclined Supreme Court Justices who agree on what the "original meaning" is and then put that agreement into effect regardless of precedent. Scholars will continue to scribble away both pro and con, as today. The scholars ye shall always have with you, it seems. Pulliam should continue to advocate for his view as forcefully as he can (and as he is not required to hedge and mute and qualify and moderate his view solely to appease academics who gatekeep his publishing, he may achieve what scholars typically cannot), and perhaps that force will prevail some day with a Supreme Court Justice or three.

Like Minowitz on Mac Donald, Rappaport is condescendingly chastising Pulliam for not being a team player, inviting him (trying to drag him, really) back into the enclosed pasture with the rest of the fold. I don't know if Pulliam's view is the superior one or not, but he ought to decline the invitation.

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QET
on March 27, 2019 at 11:56:25 am

"The “new” originalist argument against Bork’s position on the Slaughter-House Cases seems to be : No one can agree what the clause means, but it is definitely not an ink blot."

So why not join in with the rest of us "inkblots" appears to be the advice on offer.

I am disappointed. Frankly, I expected more from Rappaport in his response - some discussion of why Pulliam's position is actually incorrect and / or why Lash, Rappaport, Justice Field is correct (I believe Field was closer to truth, BTW).

Instead, this response had a faint hint of condescension. I hope I am wrong in that assessment but the "encouragement" to accept one of the more popular positions via an *invitation* to read the literature could lead one to conclude that Mark's scholarship in not quite as rigorous as is that of the favored tribe.
Hopefully, I am wrong.

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gabe
on March 27, 2019 at 13:26:46 pm

Gabe: I did not mean to express any condescension. I believe we are making good progress on the meaning of the Privileges or Immunities Clause of the 14th Amendment. I am planning to write more about the meaning of the Clause in the future, but there is simply not space in a single post to do it all.

To everyone: The comments here seem to miss that it is not enough to say that people disagree about the PI Clause. People disagree about every single clause in the Constitution, including much of the First Amendment. As originalists, we should be trying to enhance our understanding of the original meaning of these difficult clauses.

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Mike Rappaport
on March 27, 2019 at 13:30:05 pm

This was a great exchange on the Slaughterhouse Cases. For what it's worth, I find Watkin's argument the most persuasive--that the Privileges or Immunities Clause refers to enumerated and unenumerated rights. But I enjoyed reading them all. I doubt Professor Rappaport intended his invitation as a derogatory comment on Mark's scholarship. I think his point is that we tend to discount the literature of opposing points of view and only read it so far. Like this exchange, it can be valuable and interesting to explore the literature defending or exploring the different positions. No one has time to keep up with the literature on all positions on all topics.

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Fredrick Hagen
on March 27, 2019 at 16:23:00 pm

Mike:

Fair enough. I look forward to your upcoming posts.

As an originalist, would you consider providing an originalist view, one from a contemporaneous / historical perspective, of what the Crafters understood to be Privileges and Immunities of a) citizens of the United States and b) citizens of the individual states.
Also, could you include in that survey an exposition on how the Crafters intended to allocate responsibilities for the respective P&I between the two levels of government.

It strikes me that a central government intended to be limited in delegated powers would, of necessity, also be limited in focus; and that the resolution, control, abridgement or enhancement of State level P&I would be left to the States as a proper function of their Police Powers.
How does your conception of P&I jibe with the Crafters (and your) understanding of the "limited" focus of the central government.

Lastly, I have another cockamamie notion that it may be helpful to better illustrate the differences between State and Federal P&I (those provided guarantees in COTUS) by the simple (and since it is coming from me, it must be SIMPLE) device of classifying those rights guaranteed by COTUS / Federales as "inalienable" rights and those protected OR diminished by the States as "alienable" rights.

Somewhere, somehow, someone must yield some rights, some freedom of action, choice or preference. I do not view the Crafters as wishing for the Central Government to regulate "the wearing of a hat", choice of house colors, or the location of *rendering houses."

Am I wrong? (Probably, but it would be bnice to have some argue me out of this silly position.

Anyway, look forward to your upcoming posts.

take care
gabe

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gabe
on March 27, 2019 at 16:43:42 pm

Oops, I realize I did not explicitly apologize to Rappaport.

Consider it done. My mistake. Apologies to Mike for my own misperception(s).

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gabe
on April 02, 2019 at 08:05:07 am

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on April 09, 2019 at 08:49:12 am

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