Let's All Agree to Disagree, and Move On: Analyzing Slaughter-House and the Fourteenth Amendment's Privileges or Immunities Clause under "Sunk Cost" Principles

IntroductionThe American Civil War remains the largest source of bloodshed this country has ever suffered.1 The country, divided on the fundamental questions of who was a citizen and what rights he deserved, lost nearly 620,000 lives searching for these answers.2 The result of the war was the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution, collectively incorporating the African-American race into citizenship, and the males of that citizenry into enfranchisement.3 Despite the broad successes that these amendments have achieved in the centuries following their adoption, histori- ans still lament over the Fourteenth Amendment, dreaming of what could have been.4The first section of the Fourteenth Amendment contains the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause.5 Although few clauses in the Constitution have received as much attention as the Due Process and Equal Protection Clauses, the Privileges or Immunities Clause has lain nearly dormant since the U.S. Supreme Court decided the Slaughter-House Cases ("Slaughter-House") in 1872.6Legal historians have fought to overturn Slaughter-House for decades and have urged the Supreme Court to return the Privileges or Immunities Clause to its intended preeminence in American jurisprudence.7 Because of their persistent efforts to overturn Slaughter-House, Supreme Court Justice Antonin Scalia aptly named this fight "the darling of the professoriate."8 Although most legal historians can agree that Slaughter-House wrongly interpreted the Privileges or Immunities Clause, these scholars cannot agree on exactly what its drafters intended for its meaning and scope.9 For this reason, the debate has become largely history-based, and has focused on the Antebellum and Reconstruction Eras to determine what rights and protections the drafters of the Privileges or Immunities Clause intended to provide.10 Despite the valiant efforts of historians, it seems that the true intention of the drafters of the Privileges or Immunities Clause may never be realized.11 Nevertheless, following the narrowing of the Privileges or Immunities Clause to the point of near-eradication in Slaughter-House, the judiciary has relied on alternative legal provisions to source and secure Americans' substantive rights.12This Note argues that the Supreme Court likely views the 140 years of Slaughter-House precedent under "sunk cost" principles and is unlikely to revive the Privileges or Immunities Clause to any preeminent source of power.13 Additionally, where the majority of what the Privileges or Immunities Clause would have achieved in the nineteenth century has been achieved through alternative means in the centuries since, legal historians should begin to recognize and embrace the Supreme Court's ad hoc handling of the Privileges or Immunities Clause as the most rational approach to this storied clause.14Part I of this Note details the disagreements among the three popular historical interpretations of the pre-ratification years and describes what each historical retelling holds in terms of the meaning of the Privileges or Immunities Clause.15 Part II details the judicial interpretations of the Privileges or Immunities Clause.16 Part III analyzes how each historical approach would affect the scope and power of the Privileges or Immunities Clause and, further, how American jurisprudence has found these powers in alternative avenues post-Slaughter-House.17 Lastly, Part IV argues that interpreting the Privileges or Immunities Clause under sunk cost principles, as the Supreme Court has, proves that the modern refusal to revive the clause is the most rational resolution to this long-debated area of American Constitutional law.18I. The Historical Debate Rages onLegal historians have long attempted to articulate exactly what the drafters intended when writing, and later ratifying, the Privileges or Immunities Clause in 1868. …