W.D.Moore – APSA-03– Slaughter-House – p.48
Bradley’s respective references to popular involvement in formal processes of constitutional
amending. Those passages not only support conceiving of the first two criteria as resting on a
premise that constitutional norms have depended for their authority and meaning on political
activities by “the people” and on their behalf. They also support conceiving of the other four
criteria as rooted in principles of popular sovereignty.
Turning those criteria around, then, what are their combined contributions to analyzing the
opinions in Slaughter-House? They support a position that the justices’ opinions, as with the
fourteenth amendment and other parts of the U.S. Constitution that were conceivably relevant to
resolving the lawsuit, depended for their authority at least in part on that of “the people of the
United States.” Going further, the subsidiary criteria invoked by the justices provide standards for
assessing the extent to which that text, and the opinions seeking to (re)construct its authoritative
meaning(s), have found support as authoritative representations of the constitutional activities and
commitments of those people.
Most of those criteria, still engaged at a relatively high level of generality, presume or
imply that the authority and meaning of the fourteenth amendment -- along with the justices’
positions on its authority, meaning and implications -- have been linked in important ways to
broader activities and commitments of constitutional politics. First, article V has treated as
authoritative processes of constitutional amending involving state legislators and members of
Congress. As the justices recognized in Slaughter-House, moreover, the people at large
participated various ways in those processes and influenced their outcomes. Across the second
criterion, principles of popular sovereignty also supported the justices’ treating additional
representative actions as authoritative, including “constructions” of the fourteenth amendment by
Congress along with the Court’s decision in Slaughter-House. Third and for similar reasons, those
principles supported the justices’ efforts to achieve at least two forms of constitutional coherence:
among the fourteenth amendment and other parts of the U.S. Constitution, from the “internal”
perspective of constitutional precedent; and between these “internal” (judicial) and “external”
Convention