31. What Happens to a Clause Deferred?
Duress, citizenship, and the return of a forgotten clause
In our last post, we looked at how the Supreme Court weakened the Privileges or Immunities Clause in The Slaughter-House Cases, just five years after the 14th Amendment was adopted. The Court, afraid of expanding federal power, interpreted the clause so narrowly that it became meaningless.
But even before that ruling, some critics questioned whether the 14th Amendment was valid—not because of its content, but because of how it was passed.
The Politics Behind the Amendment
The 14th Amendment was passed in the turbulent years after the Civil War, when the South was under military occupation and Reconstruction was in full swing. Congress faced a difficult task: how to bring the Southern states back into the Union while ensuring that the newly freed Black population would be protected under the law.
The solution was forceful. Congress made ratifying the 14th Amendment a condition for reentry into the Union. In other words: No ratification, no representation in Congress. In many Southern states, military governments oversaw the process, and newly formed legislatures—often with Northern support and sometimes including Black lawmakers for the first time—voted to approve the amendment. The prewar (and often Confederate-aligned) legislatures were sidelined.
Critics at the time (and some even today) argued that this was constitutional change at gunpoint. That it wasn’t the product of consensus, but coercion. If a state adopts an amendment under occupation, is that democratic legitimacy or just political muscle?
But history complicates that story. Many of the most significant constitutional changes in American history have come during moments of upheaval: the founding after the Revolution, the Missouri Compromise during the slavery crisis, the New Deal in the Great Depression, the civil rights movement in the 1960s. Pressure and urgency often drive reform.
The more lasting question isn’t how peaceful the process was, but whether the result has endured. And in the case of the 14th Amendment, it has. For over 150 years, it has shaped how we understand citizenship, equality, and the role of government. Courts, lawmakers, and the public have treated it not as a temporary fix, but as a core part of the Constitution.
So yes, the 14th Amendment was born in conflict. But its authority today doesn’t rest only on how it was passed. It rests on how we’ve continued to live with it, argue over it, and build upon it.
Justice Thomas Wants to Bring Back a Forgotten Clause
In McDonald v. City of Chicago (2010), the Supreme Court said the Second Amendment applies to the states. The majority used the Due Process Clause to reach that result. But Justice Clarence Thomas went a different way: he argued the Court should rely on the Privileges or Immunities Clause, the one gutted in Slaughter-House.
Thomas’s approach would mean big changes. It’s rooted in originalism—the idea that we should interpret the Constitution based on its meaning at the time it was written.
What Would Change?
Historical Limits on Rights: Courts would ask whether a right was recognized in 1868. If not, it might not be protected today.
Less Flexibility: Modern ideas about liberty and dignity wouldn’t matter as much. Courts would be tied to Reconstruction-era views.
Threats to Modern Rights: Rights like abortion, same-sex marriage, and privacy could be harder to defend.
New Protection for Economic Rights: Rights like pursuing a job (important in the 1800s) might gain new support.
So reviving the clause could narrow some rights but expand others. It would mean sticking more closely to the text—but also limiting how courts adapt the Constitution to modern times.
Can We Trust a Clause Born in Crisis?
If the 14th Amendment was passed under pressure, can we rely on its original meaning today? Or should we treat it as a starting point, something meant to grow with the country?
Justice Thomas’s vision is bold. It revives a long-buried part of the Constitution, but it also raises deep questions about history, legitimacy, and who decides what rights we have.
Would grounding modern rights in the original meaning of the Privileges or Immunities Clause lead to greater constitutional stability, or to the erosion of rights we now take for granted? What do we gain or lose by tying liberty to the past?