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.