Excerpted From: Maeve Glass, Killing Precedent: The Slaughter-house Constitution, 123 Columbia Law Review 1135 (May, 2023) (325 Footnotes) (Full Document)


MaeveGlassIn the spring of 1872, a manuscript as thick as a casebook received the endorsement of the Chief Justice of the Supreme Court of the United States. Newly published by official resolution of one of the nation's antislavery organizations, the manuscript included transcribed testimonies, letters, and narratives of hundreds of refugees who had fled the mass atrocity we know today as slavery. “No stories could be more fraught with interest,” the Chief Justice wrote in his brief reply of thanks to the man who had compiled the records decades earlier. yet, when it came time the following year to interpret the newly ratified Reconstruction Amendments, the Supreme Court used its institutional voice to omit the histories of slavery from its case reporters. In an opinion that marked the first interpretation of the Reconstruction Amendments, the Court summarily dispensed with the fact of slavery, noting only its existence in the southern states of the Union before declaring its formal death at the hands of a magnanimous national government on the battlefield of rebellion. was the significance of this manuscript in 1872, and why did the Court exclude its contents from the case reporters? Although historians have explored the construction of this manuscript in the antebellum era, little is known about its place within the contested constitutional order that emerged in the aftermath of the Civil War. Instead, much of the scholarship and commentary surrounding Slaughter-House has focused on the narrow question of whether the Supreme Court gutted a single line of constitutional text known today as the Privileges or Immunities Clause. And while recent work has rightfully recentered the judicial construction of history as an object of analysis, much remains to be learned about the processes by which people excluded from the law's protection created, argued from, and theorized a historical record of slavery--and how, in turn, the law's appointed elite responded.

Building on the robust body of scholarship that has illuminated the long struggle for freedom and equal citizenship in America, this Essay aims to reframe how we understand the constitutional significance of Slaughter-House. Rather than beginning with the text of the Court's opinion or the clauses of the Constitution that it interpreted, this Essay begins with the voices that it omitted. In doing so, it uncovers a still only dimly understood world of constitutional argumentation, one so disruptive in its indictment of the nation's legal order and so bold in its vision for a new regime that it had to be excluded by the Court from the official body of constitutional law.

As this Essay argues, by the time the manuscript of testimonies arrived on the Chief Justice's desk in 1872, its mode of archiving the voices of slavery's survivors had become part of a distinctive legal discourse. Unlike mainstream modes of antislavery and abolitionist constitutional argumentation that began with the text of the founding documents or principles of natural law to insist on the rights of individual states or people, this tradition of constitutional argumentation began with the brutal record of human suffering and struggle in the face of institutionalized, collective wrongs. Crucially, the aim of reciting and arguing from this record of suffering was not to solicit pity from white audiences or to persuade them of the original evil of the Constitution. Instead, by reworking principles of civic republicanism that dated back to the American Revolution, the aim was to reveal the corruption and moral bankruptcy of a monarchical republic, which had forfeited its right to rule, while also celebrating a Black struggle deemed to be protected by a higher law of God. By 1872, this mode of arguing from a record of atrocity as told by its survivors had become a basis for a radical vision of America's future as a constitutional democracy, one rooted in a shared history of white oppression and aimed at realizing Black self-determination and liberation--including, for some, the promise of Black female leadership of America's public institutions. It was this constitutional tradition of argumentation, tied to a movement for Black political power, that the Court implicitly rejected when it omitted the people's archive of slavery from its history of the Reconstruction Amendments. Instead of integrating a history of state-sanctioned mass atrocity that had become a basis for celebrating Black resistance, the Court chose to construct its history using a different set of records. In passages of Slaughter-House that have gone overlooked for a century and a half, the Court used language that paraphrased a letter from a former human-trafficker turned Union military officer that had been published and circulated in a 1865 report compiled by Congress. Known as the Schurz Report, this compilation of letters from military officers and federal employees framed the central problem facing America not as one of centuries of white oppression but as a temporary wave of postwar violence by rebellious states and rogue bad men who preyed on helpless Black victims. Relying on this official narration of the past, 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. placing the omitted archive of slavery alongside the Slaughter-House opinion for the first time, this Essay illuminates the profound gap that separates America's constitutional discourse of political universality and its practices of exclusion. The constitutional significance of the Slaughter-House Cases, the Essay concludes, lies not in the gutting of a single line of constitutional text that has captured the legal academy's attention for a century and a half. Rather, the significance of the case lies in the judicial gutting of a people's history of atrocity by a Court seeking to assert its own authority in the contests for power in post-Civil War America. Far from a story unique to the United States and its era of “Reconstruction,” this foundational act--the judicial erasure of sovereign violence following the formal abolition of slavery--is consistent with patterns that critical scholars of transitional justice and postcolonial regimes have observed in legal institutions across the globe. narrowing this gap between constitutional law's discourse of universality and its practices of exclusion will surely require far more than doctrine, this Essay proposes one modest step forward for those working within the existing structures of American constitutional law: the revival of an emancipatory, and now long-since forgotten, reading of Slaughter-House. First put forward in 1874 by the prominent Black lawyer and congressman Robert Elliott, this reading of Slaughter-House is directly at odds with the interpretation that currently travels through America's law schools, courtrooms, and halls of power. Echoing Frederick Douglass's theory of constitutional interpretation, this reading of precedent dismissed the intentions of the men who wrote the opinion. Instead, it paired the decision's omitted histories of slavery with a plain reading of the opinion's text to interpret the decision not as a gutting of the Privileges or Immunities Clause but as an affirmation of Congress's broad powers to remedy past wrongs and ensure the equal protection of the law for America's citizens. celebrated by several fellow radical lawmakers in Congress, this reading of Slaughter-House was soon killed off by the Supreme Court in a series of subsequent decisions. In what some might describe as an extended game of “Scrabble Board precedentialism,” the Court selectively cited Slaughter-House. Most notably, the Court ignored several passages in the opinion in which the Slaughter-House Court, perhaps in pursuit of a Constitution of individual rights, had described a new federal power to protect American citizens from private acts of violence and oppression and recognized Congress's role in defining, through federal law, the substance of a national citizen's privileges and immunities. By bringing these passages back into view, if only to watch them disappear in the hands of the Court, this Essay underscores the Court's selective reading of its own decisions and thus problematizes the foundations of key Fourteenth Amendment doctrines that continue to limit Congress's role in protecting and defining constitutional rights today. I begins by tracing the creation of a people's archive of slavery that, by the time of the Slaughter-House decision, had become a key part of a constitutional argument for Black resistance and political power. Part II then explains how the Supreme Court implicitly rejected this archival practice in Slaughter-House by constructing a history that recast Black people from survivors seeking collective political power into the helpless wards of a guiltless national government, whose individual rights would be vindicated by the federal courts. Part III explores how recovering this history of omission counsels in favor of reviving a now-forgotten historical interpretation of Slaughter-House: one that sought to ensure that the history of suffering and survival would remain within the records of constitutional law and that the meaning of the Amendments would be determined not only by the Court but also by the people.

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At a time when the Fourteenth Amendment appears to some observers to have become a text whose meaning is frozen in time and discernible only by the Supreme Court, this Essay looks to the past. It does so not to conjure the spirit of the “Reconstruction Era” nor to relitigate the original meaning of the constitutional text. Rather, it steers a different course, one that uses the specific language and silences of the Court's own founding precedent to reveal the sheer scale of the Court's omission of history and its post-hoc culling of the opinion's emancipatory language. Drawing on records long overlooked by conventional accounts of Slaughter-House, it shows that when the Supreme Court began the clock of constitutional time with the death of slavery, it set aside not only a history of atrocity but also a vision for Black power and self-determination. Today, those who attend to these silences will find in this precedent not simply the lamentable gutting of a single strip of text in the Constitution but the raw elements with which we can begin to imagine and re-read Slaughter-House anew. This is a history, then, that invites us to turn to the past to hold the Court accountable for its precedents and listen to those whom it excluded from the law.

Associate Professor of Law, Columbia Law School.