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Page 4

Like Sherlock Holmes, therefore, we would do well to

consider the significance of the silence that has ensued.

It is unusual, after all, for a single case to permanently

derail so important a constitutional provision, especially

when the case is decided by a slim five-to-four majority.

It is even more unusual for that to happen when the dis-

sents are as vigorous and compelling as they were in

Slaughterhouse--so vigorous and compelling, in fact, that

much legal opinion, both then and now, holds that the dis-

senters were right and that the case was wrongly decided.5

Indeed, in subsequent opinions, Justice Samuel Miller, the

author of the majority opinion, came himself to wonder

whether his opinion or those of the dissenters should be

considered controlling.6   What is more, the Court quickly

backed off the equally restrictive readings it had given

the Due Process and Equal Protection Clauses in

Slaughterhouse.7   Thus, the 125-year absence of the

Privileges or Immunities Clause is more than unusual: it

is unique.

But why, today, should anyone care?  Shouldn't we

all, as Graglia suggests, simply count our blessings that

in this litigious age at least one source of litigation is

no longer there?  The answer, of course, is that, if we

take the Constitution seriously as the law of the land, we

can no more ignore any of its parts than we can ignore the

document as a whole--which is composed of its parts, after

all.  That is especially so for "originalists," which most

conservatives purport to be.  Rightly concerned about

judges who decide cases not on the law but by invoking

their own values, originalists urge judges to look to the

text--or, if necessary to illuminate its meaning, to the

original understanding of the text.  They believe in the

rule of law, that is, not in the ungrounded rule of

judges.

It is precisely there, however, on the question of

meaning, that the problem arises, say the conservatives.

Graglia is but one of a group of leading conservatives,

including author and former judge Robert Bork8 and Harvard

Law Professor Emeritus Raoul Berger,9 who adamantly oppose

reviving the Privileges or Immunities Clause on the ground

that it is "a constitutional provision whose meaning is

largely unknown," as Bork has put it, adding that "it is

quite possible that the words meant very little to those

who adopted them."10   Bork then poses a judicial caution:

"[T]hat the ratifiers of the amendment presumably meant

something is no reason for a judge, who does not have any

idea what that something is, to make up and enforce a

meaning that is something else."11