KILLING PRECEDENT: THE SLAUGHTER-HOUSE CONSTITUTION

 Every one that was taken from me,

was like cutting away a piece of my heart. 1 1 William Johnston, A Tale of Wo, Colored Am. (N.Y.C.), Mar. 20, 1841 (quoting a father’s words describing how traders took four of his children and sold them). ... Close

O, we’ve come black-birding again. 2 2 Meeting of the Vigilance Committee, Emancipator (N.Y.C.), Dec. 15, 1836, at 130 (describing the act of kidnapping Black people for the domestic slave market as “black-birding”). ... Close

Introduction

In 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. 3 3 See Letter from Salmon P. Chase, C.J., U.S. Sup. Ct., to William Still (Mar. 1, 1872), in William Still, The Underground Rail Road: A Record of Facts, Authentic Narratives, Letters, &c., at 2, 2 (Philadelphia, Porter & Coates 1872) [hereinafter Still, The Underground Rail Road] (endorsing the manuscript and rejoicing that “such narratives can never be heard again”). On the thickness of the manuscript, see Photograph of “The Under Ground Rail Road”, https://www.gannett-cdn.com/-mm-/83842484d12739f0bf16607d5f30
d4682769c71e/c=0-578-3350-5044/local/-/media/2016/02/16/Tallahassee/Tallahassee/
635912184199139029-The-Underground-Railroad-1872.jpg (on file with the Columbia Law Review) (last visited Jan. 25, 2023). ... Close Newly published by official resolution of one of the nation’s antislavery organizations, 4 4 Resolutions of the Pennsylvania Anti-Slavery Society (May 5, 1870), reprinted in Still, The Underground Rail Road, supra note 3, at 1, 1 (resolving to publish the records of its work). ... Close the manuscript included transcribed testimonies, letters, and narratives of hundreds of refugees who had fled the mass atrocity we know today as slavery. 5 5 Still, The Underground Rail Road, supra note 3. The term “refugees” is not intended to signal a formal legal status; instead, it is intended as a substitute for “fugitives” or “fugitive [enslaved people].” ... Close “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. 6 6 Chase, supra note 3, at 2. ... Close

And 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. 7 7 The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–69 (1873). ... Close 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. 8 8 Id. ... Close

What 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, 9 9 See, e.g., Andrew K. Diemer, Vigilance: The Life of William Still, Father of the Underground Railroad 8 (2022) (describing Black abolitionist William Still’s life as a “story of community struggle” that “also helps us to see the longer story of the fight for Black freedom and Black citizenship rights”); Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 12 (2015) (describing how Still “carefully placed the experiences of the fugitives at the center of the story while giving full credit to those who assisted them”); Andrew K. Diemer, The Business of the Road: William Still, the Vigilance Committee, and the Management of the Underground Railroad, 42 J. Early Republic 83, 83–84 (2022) (summarizing the historiography of the Underground Railroad and noting historians’ insufficient attention to the “daily, sometimes mundane, antislavery work” that Still engaged in as clerk of the Anti-Slavery Society of Pennsylvania); Larry Gara, William Still and the Underground Railroad, 28 Pa. Hist. 33, 33 (1961) (analyzing Still’s work on the Underground Railroad in an effort to draw attention to the two “neglected groups” in America’s legend of the Underground Railroad, namely the Black members of the vigilance committees and the “fugitives themselves”); Elizabeth Varon, “Beautiful Providences”: William Still, the Vigilance Committee, and Abolitionists in the Age of Sectionalism, in Antislavery and Abolition in Philadelphia: Emancipation and the Long Struggle for Racial Justice in the City of Brotherly Love 229, 242 (Richard Newman & James Mueller eds., 2011) (analyzing Still’s publication of The Under Ground Rail Road as part of an effort to keep alive “the memory of the heroic antislavery crusaders”); see also Foner, supra, at 190–213 (analyzing an analogous record of refugee testimonies and narratives compiled in the 1850s by the white abolitionist Sydney Howard Gay). ... Close little is known about its place within the contested constitutional order that emerged in the aftermath of the Civil War. 10 10 On the scramble for “influence and authority” in the wake of the Civil War, see Gregory P. Downs & Kate Masur, Introduction: Echoes of War: Rethinking Post–­Civil War Governance and Politics, in The World the Civil War Made 1, 7 (Gregory P. Downs & Kate Masur eds., 2015). ... Close 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. 11 11 Randy E. Barnett & Evan D. Bernick, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 507 (2019) (observing that Slaughter-House is “generally regarded as having rendered the Privileges or Immunities a ‘practical nullity’” (quoting S. Doc. No. 82-170, at 965 (1953))); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1, 76 (1996) (declaring that the Slaughter-House Cases “left protections of Bill of Rights liberties to the tender mercies of the very states that had so recently made mincemeat of them”); Charles Fairman, What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870–1892, in The Gaspar G. Bacon Lectures on the Constitution of the United States: 1940–1950, at 423, 458 (1953) (“Justice Miller . . . construed the Amendment narrowly . . . . The privileges and immunities clause was virtually scratched from the Constitution.”); Morton J. Horwitz, The Supreme Court, 1992 Term— Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 Harv. L. Rev. 30, 84 (1993) (“Justice Miller’s opinion . . . virtually emptied the Privileges and Immunities Clause of content . . . .”).
For revisionist accounts of Slaughter-House, see Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era 202 (2003) (tracing Justice Miller’s concern for protecting Republican state legislatures); David S. Bogen, Rebuilding the Slaughter-House: The Cases’ Support for Civil Rights, 42 Akron L. Rev. 1129, 1130 (2009) (accepting that Slaughter-House “[g]utt[ed] the Privileges and Immunities Clause” but arguing that this evisceration “compelled the Court to read the Equal Protection Clause broadly”); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643, 648–50 (2000) (arguing that Justice Miller’s opinion in Slaughter-House meant to allow for the incorporation of Bill of Rights freedoms against the states); William J. Rich, Taking “Privileges or Immunities” Seriously: A Call to Expand the Constitutional Canon, 87 Minn. L. Rev. 153, 157 (2002) (arguing that “Justice Miller’s opinion for the Court directed future generations to look to federal law to identify privileges or immunities” in an admonition that has since been forgotten); Michael A. Ross, Justice Miller’s Reconstruction: The Slaughter-House Cases, Health Codes, and Civil Rights in New Orleans, 1861–1873, 64 J.S. Hist. 649, 652 (1988) [hereinafter Ross, Justice Miller’s Reconstruction] (arguing that Justice Miller’s concerns for safeguarding Louisiana’s newly elected biracial legislature that enacted the state law at issue in Slaughter-House informed the decision); Bryan H. Wildenthal, How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism, 23 T. Jefferson L. Rev. 241, 244–45 (2001) (concluding that “the majority in Slaughter-House . . . accepted as a minimum baseline consensus the notion of incorporating at least the textual guarantees of the Bill of Rights against state action”); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1063 (2001) (challenging the conventional view that Justice Miller’s majority opinion rejected incorporation via the Privileges or Immunities Clause by noting that “the majority’s own language [on this issue] was at worst ambiguous, [and] at best powerfully supportive of total incorporation”). For a critique of the usefulness of these revisionist interpretations, see Randy E. Barnett, The Three Narratives of the Slaughter-House Cases, 41 J. Sup. Ct. Hist. 295, 304–08 (2016). ... Close And while recent work has rightfully recentered the judicial construction of history as an object of analysis, 12 12 See, e.g., Jack M. Balkin, Constitutional Memories, 31 Wm. & Mary Bill Rts. J. (forthcoming 2023) (manuscript at 19) (on file with the Columbia Law Review) (“Judicial opinions both depend on and amplify conceptions of constitutional memory, and thus the ideological effects of what is remembered and what is forgotten.”); Justin Collings, The Supreme Court and the Memory of Evil, 71 Stan. L. Rev. 265, 274 (2019) (suggesting that the Reconstruction Court’s omission of slavery from its constitutional law case reporters was part of the majority’s effort to restore the federal structure of the Union); Peggy Cooper Davis, Aderson Francois & Colin Starger, The Persistence of the Confederate Narrative, 84 Tenn. L. Rev. 301, 304 (2017) (arguing that a “Confederate narrative” that has “had a persistent influence in constitutional discourse . . . rests on a distorted reading of our legal history”); Eric Foner, The Supreme Court and the History of Reconstruction—And Vice-Versa, 112 Colum. L. Rev. 1585, 1585 (2012) (arguing that a historical narrative of Reconstruction that has long since been repudiated by historians continues to shape the Supreme Court’s jurisprudence); Aderson Bellegarde François, A Lost World: Sallie Robinson, the Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence, 109 Geo. L.J. 1015, 1020–21 (2021) (arguing that the Reconstruction Court’s omission of slavery from the case reporters was “neither an oversight nor an accident, but rather the natural—if not inevitable—consequence of the restorative arc that the law in general and courts in particular always bend toward when telling stories”); Ariela Gross, When Is the Time of Slavery? The History of Slavery in Contemporary Legal and Political Argument, 96 Calif. L. Rev. 283, 284 (2008) (identifying “the way histories of slavery have been used in judicial opinions, legal scholarship and popular political tracts to support conflicting arguments about racial justice, affirmative action, and reparations for African Americans”); Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 23 (2022) (introducing the concept of “constitutional memory” to explain the Supreme Court’s exclusion of centuries of suffrage arguments); see also Craig Green, Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building, 90 U. Chi. L. Rev. (forthcoming 2023) (manuscript at 83–84) (on file with the Columbia Law Review) (arguing that the “Slaughter-House Court cited recently manufactured traditions about the prewar past and applied those ‘traditions’ to unprecedented circumstances”); Cynthia Nicoletti, The Rise and Fall of Transcendent Constitutionalism in the Civil War Era, 106 Va. L. Rev. 1631, 1702 (2020) (arguing that Justice Miller’s aim in Slaughter-House was to halt the rise of a transcendent constitutionalism unleashed by the Civil War by returning power to the state governments). ... Close 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, 13 13 See, e.g., Alejandro de la Fuente & Ariela J. Gross, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana 82 (2020) (arguing that “people of color persisted in seeking freedom and exercising rights in court in significant numbers through the first decades of the nineteenth century”); Van Gosse, The First Reconstruction: Black Politics in America From the Revolution to the Civil War 5 (2021) (describing “black men’s extensive participation in partisan electioneering in the postrevolutionary era”); Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America 24 (2018) (identifying constitutions and “founding texts” as one of the sources that free Black families relied on to assert their status as citizens); Martha S. Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All 7 (2020) [hereinafter Jones, Vanguard] (describing the rediscovery of a “many-faceted and two-centuries-long women’s movement” built by Black women in their search for political power); Kelly Kennington, In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America 41–67 (2017) (tracing the process by which enslaved people brought freedom suits in antebellum St. Louis); Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction xii (2021) (describing a previously overlooked “struggle for racial equality in civil rights that spanned the first eight decades of the nation’s history”); Gary B. Nash, Forging Freedom: The Formation of Philadelphia’s Black Community, 1720–1840, at 187–88 (1988) (summarizing how Black residents of Philadelphia challenged the Fugitive Slave Act of 1793 in the 1790s by citing natural law and the federal Constitution); Benjamin Quarles, Black Abolitionists 204–22 (1969) (describing efforts by Black abolitionists to protest the Fugitive Slave Law of 1850); Patrick Rael, Black Identity and Black Protest in the Antebellum North 270–81 (2002) (analyzing how nineteenth-century Black leaders cited the founding documents and the incomplete American Revolution to challenge the institution of slavery and racial discrimination); Hannah Rosen, Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South 8–9 (2009) (arguing that “[t]estimony found in [the records of congressional investigating committees and the Bureau of Refugees, Freedmen, and Abandoned Lands] offers a window . . . onto how former slaves claimed citizenship by demanding protection from violence”); Manisha Sinha, The Slave’s Cause: A History of Abolition 139 (2016) (analyzing how the founders of America’s first Black churches cited the Constitution in a 1799 petition to Congress to pioneer the argument that slavery was unconstitutional); Anne Twitty, Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787–1857, at 6 (2016) (arguing that enslaved people in the American Confluence “discovered—and employed—statutes that could effect their freedom, obtained competent counsel, and tracked down sympathetic witnesses” to argue for their freedom in court); Lea VanderVelde, Redemption Songs: Suing for Freedom Before Dred Scott 11 (2014) (emphasizing how “subordinate people took the lead in pressing their legal rights in suing to establish their freedom” in the courts); Kimberly M. Welch, Black Litigants in the Antebellum American South 11 (2018) (arguing that “when black people asserted their rights and pressed their claims in court, they also envisioned themselves as full members of their communities and pressed for civic inclusion”); Kidada E. Williams, They Left Great Marks on Me: African American Testimonies of Racial Violence From Emancipation to World War I, at 20 (2012) (arguing that “emancipation-era addresses, petitions, and memorials also point to black people’s willingness to assert their citizenship rights by testifying about violence”); Daniel Farbman, Resistance Lawyering, 107 Calif. L. Rev. 1877, 1882 (2019) (arguing that abolitionist lawyers used cases arising under the 1850 Fugitive Slave Law to wage a “vigorous rhetorical proxy battle against slavery”); Crystal N. Feimster, “What if I Am a Woman”: Black Women’s Campaigns for Sexual Justice and Citizenship, in The World the Civil War Made, supra note 10, at 249, 250 (arguing that Black women drew “on their wartime experience and the Fourteenth Amendment’s guarantee of equal protection under the law” to “renew[] their efforts to redefine citizenship to include all women”); Rebecca Scott, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge, 106 Mich. L. Rev. 777, 790–91 (2008) (explaining how men of color in Louisiana invoked the Louisiana Purchase Treaty of 1803 to argue for inclusive national citizenship). ... Close 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. 14 14 See Hendrik Hartog, The Constitution of Aspiration and “The Rights That Belong to Us All”, 74 J. Am. Hist. 1013, 1015 (1987) (suggesting a framework for “integrating the subjects of American social history and American constitutional history”). ... Close 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. 15 15 See infra section I.B. ... Close 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. 16 16 See infra section I.B. ... Close 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. 17 17 See Leslie M. Alexander, African or American? Black Activism and Political Activism in New York City, 1784–1861, at 130 (2008) (identifying the 1850s as a moment of “increasing urgency” for Black leaders to renew efforts with “a strong determination to create unity among their people”); Brandon R. Byrd, The Black Republic: African Americans and the Fate of Haiti 21 (2020) [hereinafter Byrd, The Black Republic] (describing nineteenth-century Black nationalism as “a malleable ideology centered on the belief that people of African descent were a distinct nation that had to unite on the principles of racial pride, political and economic self-determination, and civilized progress”); Kathy L. Glass, Courting Communities: Black Female Nationalism and “Syncre-Nationalism” in the Nineteenth-Century North 1–15, 101 (2006) [hereinafter Glass, Courting Communities] (tracing how nineteenth-century Black women activists endeavored to build a Black community that operated “primarily at the ideological, rather than the geographical or juridical level” while cautioning that Black nationalism was not a “monolithic concept”); Wilson Jeremiah Moses, The Golden Age of Black Nationalism, 1850–1925, at 16 (1978) (tracing the origins of Black nationalism to the shared experience of slavery); Rael, supra note 13, at 211–33 (arguing that a nascent Black nationalism originated not among enslaved people but among a Black intelligentsia in the urban antebellum North that celebrated a shared pan-African and Haitian history and depicted Anglo-Saxon history as one of barbarism and despotism); Michael Stancliff, Frances Ellen Watkins Harper: African American Reform Rhetoric and the Rise of a Modern Nation State 6 (2011) (arguing that Watkins Harper “sought to instill a new brand of race-national allegiance”); Sterling Stuckey, The Ideological Origins of Black Nationalism 5 (1972) (arguing that Black nationalist theorists used the shared experience of white oppression and the example of the Haitian Revolution to forge a shared collective identity bound by an obligation to pursue self-liberation); Craig Wilder, In the Company of Black Men: The African Influence on African American Culture in New York City 156 (2001) (“The best measure of antebellum nationalism was not how fully one sought to integrate or escape white America but how committed one was to the self-determination of Africans in the Diaspora.”); Brandon R. Byrd, “We Are Negroes!” The Haitian Zambo, Racial Spectacle, and the Performance of Black Women’s Internationalism, 1863–1877, in To Turn the Whole World Over: Black Women and Internationalism 15, 23 (Keisha Blain & Tiffany Gill eds., 2019) [hereinafter Byrd, “We Are Negroes!”] (“Nineteenth-century black nationalism, a malleable ideology closely related to Pan-Africanism, stressed that people of African descent possessed a common heritage, historical oppression, and political and cultural destiny.”); see also Alexander, supra, at 162 (emphasizing the importance of preserving the history of slavery as a reminder of “the Black community’s history and struggle”). ... Close

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. 18 18 See infra section II.B. ... Close 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. 19 19 See infra section II.B, especially notes 228–230 and accompanying text. ... Close 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. 20 20 See infra section II.A. ... Close 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. 21 21 See infra section II.B. ... Close

By placing the omitted archive of slavery alongside the Slaughter-House opinion for the first time, 22 22 In recounting the histories that the Court excluded from the case reporters in Part I, the aim is not to subject readers to the trauma of slavery for the sake of spectacle. As Saidiya Hartman reminds us, academics who read into the archives of slavery must take seriously the ethics of historical representation. “[T]o what end,” she asks, “does one open the casket and look into the face of death? . . . Why subject the dead to new dangers and to a second order of violence?” Saidiya Hartman, Venus in Two Acts, Small Axe, June 2008, at 1, 4–5 [hereinafter Hartman, Venus in Two Acts]. Here, the Essay’s justification for “opening the casket” is to both underscore the egregious scale of erasure that the Court committed in Slaughter-House and advance a particular historical claim—namely, that this mode of preserving accounts of human suffering became a basis for a distinct form of constitutional argumentation, one enlisted by Black dissidents in the 1850s to justify Black resistance and that evolved into post-emancipation calls for Black power. For these purposes, this Essay risks the fraught ethical issues raised by publishing accounts of people who did not consent to their stories being retold in the pages of a law review. See, e.g., Eileen Pittaway, Linda Bartolomei & Richard Hugman, ‘Stop Stealing Our Stories’: The Ethics of Research With Vulnerable Groups, 2 J. Hum. Rts. Prac. 229, 231–35 (2010) (summarizing the ethical challenges in research with refugee communities); see also Kidada E. Williams, I Saw Death Coming: A History of Terror and Survival in the War Against Reconstruction xxiii (2023) (“But listening—really listening—to survivors of racist violence in the past holds lessons for our current moment.”). ... Close this Essay illuminates the profound gap that separates America’s constitutional discourse of political universality and its practices of exclusion. 23 23 I am grateful to Aziz Huq for this formulation. ... Close 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. 24 24 See supra note 11. ... Close 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,” 25 25 On the limits of the term “Reconstruction” see Downs & Masur, supra note 10, at 3–5 (inviting scholars to analyze the era across national borders in an effort to “shed presumptions of American exceptionalism”). ... Close 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. 26 26 See generally Stewart Motha, Archiving Sovereignty: Law, History, Violence (2018) (charting how courts have functioned to archive violence and thereby legitimize sovereignty in the Chagos Archipelago, Australia, and South Africa); Philip Alston & Sarah Knuckey, The Transformation of Human Rights Fact-Finding: Challenges and Opportunities, in The Transformation of Human Rights Fact-Finding 3, 16 (Philip Alston & Sarah Knuckey eds., 2016) (identifying the “politics and value assumptions that inform specific [human rights fact-finding] investigations” and may privilege one set of harms at the expense of others); Dan Edelstein, Stefanos Geroulanos & Natasha Wheatley, Chronocenosis: An Introduction to Power and Time, in Power and Time: Temporalities in Conflict and the Making of History 2, 20–21 (Dan Edelstein, Stefanos Geroulanos & Natasha Wheatley eds., 2020) (arguing that law creates a “circumscribed time scale of moral culpability” that advocates have challenged by positing a “virtual, elongated ethical temporality”); see also Lyndsey Stonebridge, The Judicial Imagination: Writing After Nuremberg 3 (2011) (describing how, for survivors of the Holocaust who testified in court in 1961, it was difficult if not impossible to “put[] the experience of the camps into the language demanded by the law”); Caroline Elkins, Looking Beyond Mau Mau: Archiving Violence in the Era of Decolonization, 120 Am. Hist. Rev. 852, 853 (2015) (“Archives are loaded sites that produce realities as much as they document them.”); Brigitte Herremans & Tine Destrooper, Stirring the Justice Imagination: Countering the Invisibilization and Erasure of Syrian Victims’ Justice Narratives, 15 Int’l J. Transitional Just. 576, 580–82 (2021) (exploring, through a case study of Syria, how justice narratives can “crowd out narratives with different epistemic underpinnings” through erasure and invisibilization); Tshepo Madlingozi, On Transitional Justice Entrepreneurs and the Production of Victims, 2 J. Hum. Rts. Prac. 208, 212 (2010) (noting “how transitional justice actors often rob victims of their agency in ways that are inimical to victims’ empowerment, let alone active citizenship”); Ann Laura Stoler, Colonial Archives and the Arts of Governance, 2 Archival Sci. 87, 97 (2002) (“Colonial archives were both sites of the imaginary and institutions that fashioned histories as they concealed, revealed, and reproduced the power of the state.”). ... Close

While narrowing this gap between constitutional law’s discourse of universality and its practices of exclusion will surely require far more than doctrine, 27 27 See, e.g., Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1706 (2021) (summarizing the “widest range of imaginable statutory reforms” with which to democratize the Supreme Court). ... Close 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. 28 28 See, e.g., Paul Brest, Sanford Levinson, Jack M. Balkin, Akhil Reed Amar & Reva B. Siegel, Processes of Constitutional Decisionmaking: Cases and Materials 372 (7th ed. 2018) (noting that the case is “infamous for its narrow reading of the Privileges or Immunities Clause, which . . . became virtually a dead letter following the decision”); Richard D. Friedman & Julian Davis Mortenson, Constitutional Law: An Integrated Approach 1306 (2021) (describing the work of the Slaughter-House Cases as a “demolition job” on the Privileges or Immunities Clause); see also Courtney v. Danner, 801 Fed. App’x 558, 559 (9th Cir. 2020) (mem.) (citing Slaughter-House for the proposition that the Privileges or Immunities Clause secures only a very narrow class of rights—those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws” (internal quotation marks omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 754 (2010))); Johnson v. Brown, 567 F. Supp. 3d 1230, 1254 (D. Or. 2021) (same); McLemore v. Gumucio, No. 3:19-cv-00530, 2020 WL 7129023, at *21 (M.D. Tenn. Dec. 4, 2020) (same); Truesdell v. Friedlander, Civil No. 3:19-cv-00066-GFVT, 2020 WL 5111206, at *9 (E.D. Ky. Aug. 31, 2020) (same); Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1169 (D. Utah 2019) (same); Sears v. Mooney, No. 1:17-cv-50, 2019 WL 6726839, at *15 (M.D. Pa. Dec. 11, 2019) (same); Talley v. Clark, Civil No. 18-5316, 2019 WL 331313, at *6 (E.D. Pa. Jan. 24, 2019) (same). ... Close 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. 29 29 See infra section III.A. ... Close

Initially 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,” 30 30 On “Scrabble Board precedentialism” and the challenges that it poses for the Court’s legitimacy, see Thomas W. Merrill, Legitimate Interpretation—or Legitimate Adjudication?, 105 Cornell L. Rev. 1395, 1450–56 (2021). ... Close 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, 31 31 See infra section II.B. ... Close 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. 32 32 See infra section III.B. ... Close 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. 33 33 See infra section III.B. ... Close

Part 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.