W.D.Moore – APSA-03– Slaughter-House – p.38
Other issues of political inclusion and exclusion were also pertinent in the case of the
fourteenth amendment. As indicated above, the formerly rebellious Southern states were excluded
from the Congress that proposed the fourteenth amendment. In addition, former Confederate
leaders were disqualified from participating in processes tied to ratification of the proposed
amendment. There is evidence that many persons eligible to participate in those processes
voluntarily abstained from doing so based on principled opposition to the policies of military
reconstruction of which those processes were parts.
51
Even if the resulting outcomes formally
satisfied the requirements of article V, their authority was diminished by these exclusions, as with
those identified in the previous paragraph.
The Southern states were eventually readmitted to representation in Congress.
Disqualifications of former Confederates were eventually lifted. Many black men were able to vote
and otherwise exercised rights of active citizenship (though many remained excluded, in various
ways and for various reasons). Problems of authorization that originally plagued the fourteenth
amendment may have been remedied to some extent (but not fully) through more inclusive
representative processes at subsequent stages, including those involving the amendment’s
authoritative interpretation (such as by the justices in Slaughter-House).
But women, more than half the population, remained excluded from direct participation in
many of these processes. What percentage of them approved the amendment -- or would have
voted for persons who, in turn, voted to approve it? Can we imagine how the text might have been
different -- or might have been interpreted differently -- if women had been allowed to participate
more fully at these stages (and beforehand) in structures and processes of constitutional
governance? Is it likely that Bradwell v. Illinois (1873) would have followed immediately on the
heels of Slaughter-House? Or, stated differently, was the authority of Slaughter-House (as with
Bradwell) impaired on account of these exclusions? On this dimension as well, does it make sense
to regard the justices’ opinions as having had partial authority -- here as measured by standards of
51
See Michael Perman, Reunion Without Compromise: The South and Reconstruction, 1865-1868 (Cambridge:
Cambridge University Press, 1973), esp. pp. 304-47.
Convention