David S. Bogen


This Article sets forth the Slaughter-House Cases’ support for civil rights. Justice Miller used federalism in order to protect Reconstruction legislatures where significant numbers of African-Americans participated fully for the first time. His recital of the history and purpose of the Civil War Amendments centered on the Amendments’ design to protect African-Americans, and suggested sweeping federal power to accomplish that end. Gutting the Privileges and Immunities Clause compelled the Court to read the Equal Protection Clause broadly, and was indirectly responsible for the reapportionment decisions of the Warren Court. The Slaughter-House Court’s structural analysis and its view of federal protective power provide a basis for congressional power to protect citizens from any interference with their participation in the federal political process (voting and discussion of and access to the federal government). Justice Miller’s analysis also supports federal power to protect citizens from race-based obstruction to their participation in state elections. The difficulties of proving racial motivation do not justify blaming Miller’s opinion for the end of Reconstruction and the rise of segregation...This Article argues the Court should resolve that doubt in favor of the constitutionality of laws to prevent discriminatory interference with access to state elections or other facilities. As I will discuss further, Article IV’s guarantee of a republican form of government reinforces that result and provides an alternative path for returning to the vision of the Slaughter-House Cases.