extend clemency to those who have been convicted, and in the remaining states this authority resides in either a board of pardons or the legislature." Morcover, although only a minority of state constitutions contain a clemency provision whose scope is not expressly limited to post-conviction pardons, it may well be that each state legislature has the power to withdraw the authority of police and prosecutors to procccd against lawbreakers not yet convicted.

Reliance on state clemency for war resisters, however, would inevitably negate the possibility of national uniformity, since there would he a broad spectrum of clemency policies. Illegal demonstrators, for example, convicted of obstructing the entrance to draft offices by linking arms to form a cordon, might be granted a full pardon in some states, reduction or remission of sentence in others, and no relief at all in the remainder. Such diversity, of course, would leave much to be desired on the score of fair and equal treatment for those who have responded in identical fashion to the challenge presented by the foreign policies and military ventures of the same federal government. Furthermore, the national interest in healing the societal wounds that the war has inflicted

55. ALAS. CONST. art. III, § 21; Ariz. CONST. art. 5, § 5; Ark. CoNST. art. 6, § 18; CAL.. CONST. art. 7, § 1; Colo. ConST. art. IV, § 7; Conn. Const. art. IV, § 13; DEL. CONST. art. 7, $1 (on recommendation in writing of majority of hoard); Hawah Const. art. IV. § 5; ILL. ConsT. art. 5. § 13; IND. Const. art. 5, § 17 (may be limited by board appointed hy legislature); Iowa CONST. art. 4. § 16; Kan. CoNST. art. I. § 7; Ky. Const. § 77; La. ConST. art. 5. § 10 (on recommendation in writing of majority of board); ME. CONST. art. VII, § 9 (in conjunction with council); MD. CONST. art. II, § 20; Mass. CONST. art. VIII, § 64 (with advice of council); MINN. CONST. art. 5. § 4 (in conjunction with board); Mich. Const. art. VI, § 9; Miss. Const. art. 5, $124: MONT. CONST. art. VII, § 9 (governor's action must be approved by board); Mo. ConsT. art. 4, §7; N.H. CONST. art. 2, § 52 (governor may grant with advice of council); N.J. Const. art. 5, § 1; N.M. CONST. art. 5. § 6; N.Y. Const. art. IV, § 4; N.C. CONST. art III, § 6; N.D. CONST. art. III, §. 76 (1900) (in conjunction with hoard); Ollo ConsT. art. III, § 1; Okla. Const. art. 6. § 10 (upon favorable recommendation of pardons and parole board); ORE. Const. art. V, § 14: PA. CONST. art. 4, § 9 (on recommendation in writing of majority of board); R.I. Const. amend. 2 (governor may grant with advice and consent of Senate); S.D. CONST. art. IV. § 5; TENN. CONST. art. III, § 6: TEX. CONST. ART. 4. § 11 (governor may grant on written recommendation and advice of board majority); VA. CONST. art. V. § 73 (power taken away if legislature creates mardons board). VT. CONST. art. 2. § 20; WASH. CONST. art. 3, § 9; W. VA. CONST. art. 7, § 11: WIS. CONST. art. 5. § 6: Wyo. CONST. art. 4, § 5.

56. FLA. CONST. art. 4, § 12; GA. CONST. art. V, § 1, ch. 21-3011; IDAHO CONST. art. 4, §7; NEB. CONST. art. 4, § 13; NEV. CONST. art. V. § 14; S.C. CONST. art. 4, § 11; Utah Const. art. VII. § 12.

57. ALA. CONST. art. 5. § 124.

58. ALA. CONST, amend. XXXVIII; Conn. CONST. art. IV. § 13; DEL.. CONST. art. 7, § 1: HAWAII CONST. art. IV, § 5; IDAHO Const. art. 4, § 7; KAN. CONST. art. 1, § 7; Ky. Const. § 77; LA. CONST. art. 5, § 10; ME. CONST. art. V, § 11; MD. CONST. art. II, § 20; N.J. CONST. art. 5, § 2. ¶ 1; ORE. CONST. art. V. § 14; PA. CONST. art. 4, § 9; R.I. CONST. amend. 2; S.C. CONST. art. 4. § 11: TEX. CONST. art. 4, § 11; Vt. CoNST. art. 2, § 20; WASH. CONST. art. 3, § 9.

would be lost in a welter of parochial party politics. Thus it would seem that federal action is needed, and since the President lacks the power to pardon state law violators, this raises the question whether any provision in the Constitution delegates suflicient power to Congress to grant amnesty to state offenders.

Despite the tremendous reach accorded to the commerce power during the past 35 years," it would be hard to construct an argument that it extends to the pardoning of all state law violators; even if an argument to this effect were somehow contrived, it would rightly be subject to criticism as a subterfuge." For example, it is difficult to explain how the pardoning of one convicted of criminal trespass for conducting a sit-in at a university ROTC office can be viewed as a protection of “Commerce with foreign Nations, [or] among the several states, [or] with the Indian Tribes.""""

The war power provides a more solid basis for granting amnesty to state law violators. It has been held to authorize Congress to deal with the economic consequences of foreign wars." By parity of reasoning, the war power should be held to include the authority to deal with war's social consequences—specifically, disrespect for law on a scale not seen since Prohibition days, and a devastating polarization of political opinion. Given these facts, congressional amnesty for state offenders might well pass muster under the war power.“

It does not follow, however, that primary reliance should be placed on the war power." There is a certain incongruity in using the war power

59. Since 1937, the Supreme Court has accorded virtually complete deference to congressional exercise of the power. See, e.g., Daniel v. Paul, 395 U.S. 298 (1969); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 317 U.S. III (1942); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. I (1937). In the 100 years preceding 1937, the commerce clause was interpreted more strictly. See, e.g.. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330 (1935); Hammer v. Dagenhart, 247 U.S. 251 (1918); United States v. E.C. Knight Co., 156 U.S. I (1895); The Trade-Mark Cases, 100 U.S. 82 (1879); cf. United States v. Butler, 297 U.S. I (1936).

60. Reliance on the commerce power to support the Civil Rights Act of 1964, 42 U.S.C. 1971, 1975a-d, 2000a to h-6 (1970), occasioned much adverse comment on this account. See, e.g.. Katzenbach v. McClung, 379 U.S. 294, 305 (1964) (Douglas & Goldberg, J.J., concurring). 61. U.S. CONST. art. 1, § 8, cl. 3.

62. Bowles v. Willingham, 321 U.S. 503 (1944) (rents); Yakus v. United States, 321 U.S. 414 (1944) (prices).

63. In addition, the Supreme Court has held that congressional power to mitigate the consequences of a war does not end with the termination of hostilities, so timing of the amnesty would seem to be no p: blem. Woods v. Miller Co., 333 U.S. 138 (1948) (postwar rent-control).

64. The fact that Congress has not declared this war might be thought to preclude reliance on the war power, but such an objection almost certainly would fail. See Mora v. McNamara, 389 U.S. 934 (1967) (the Court refused to review denial of injunction sought by army privates who attacked legality of undeclared Vietnam war and resultant orders shipping them to Vietnam).

to pardon those who have illegally resisted the war, and this might make an amnesty inexplicable to the electorate if based upon the war power alone. In my opinion, congressional action can and should be predicated not only upon the war power but also-and more appropriately-upon a constitutional provision that was adopted for the very purpose of empowering Congress to override state action that is inconsistent with federal policy: the privileges or immunities clause of the fourteenth amendment.

Some constitutional lawyers may well lift an cycbrow at this suggestion. They know that the clause was emasculated almost a century ago by the decision in the Slaughter-House Cases," and that a 1935 judicial effort to reactivate it as a self-exccuting limitation on state power" was quashed five years later." They know too that it was a watershed decision which has shaped the whole course of federal-state relations during the past 99 years. Even during the past ten years, when we have seen constitutional precedents that limited equality, free expression, and the rights of accused persons repudiated wholesale, this 1873 decision has stood firm as Gibraltar, virtually untouched by recent criticism."

Yet, in my opinion, the decision in the Slaughter-House Cases was a disaster-a product of well-motivated judicial arrogance, comparable in destructive effect to the three "self-inflicted wounds" listed by Charles Evans Hughes in his Blumenthal Lectures at Columbia University in 1927:" the Dred Scott case," Hepburn v. Griswold," and Pollock v. Farmers' Loan & Trust Co." As in each of those cases, the Court in the Slaughter-House Cases overstepped the bounds of judicial power to rewrite the Constitution. As in cach of those cases, the Court was impelled to usurpation by a felt need to save the Nation-from rebellion in Dred Scott, from fiscal irresponsibility in Hepburn, from socialism in Pollock, and from replacement of federalism by centralized government in the Slaughter-House Cases. And, as in each of those cases, the

65. 83 U.S. (16 Wall.) 36 (1873).

66. Colgate v. Harvey, 296 U.S. 404 (1935); tee Hague v. CIO, 307 U.S. 496, 500 (1939) (Roberts & Black, J.J., concurring).

67. Madden v. Kentucky, 309 U.S. 83 (1940).

68. The most notable exception is L. Miller, The Petitioners ch. 7 (1966).

69. C.E. Hughes, The Supreme Court of the United States 50-54 (1928).

70. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), overruled by U.S. CONST. Amend. XIV.

71. 75 U.S. (8 Wall.) 603 (1870) (the first Legal Tender Case), overruled, Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871).

72. 157 U.S. 429 (1895) (invalidating the federal income tax), overruled, U.S. CONST. amend. XVI.

well-intentioned decision was a national catastrophc.

These are serious charges to level at a constitutional decision that has been so universally accepted by great judges." Therefore, although this is not the place for a full disquisition, it is necessary to state the gravamen of the indictment."

First, we must understand precisely what Justice Miller's majority opinion held. In 1869 the Louisiana legislature had enacted a statute giving to a certain corporation a monopoly on the operation of slaughter houses in three parishes, including New Orleans. A number of butchers, being thus forbidden to continue their businesses as independent enterprises, attacked the statute as violative of the thirteenth and fourteenth amendments. The Supreme Court rejected these contentions, affirming the judgment of the Supreme Court of Louisiana that upheld the statute. What concerns us here, with regard to the amnesty question, is the rationale of Justice Miller's opinion, insofar as it interprets the privileges or immunities clause of the fourteenth amendment. Section 1 of the amendment, after providing that all persons born or naturalized in the United States and subject to its jurisdiction are its citizens, goes on to provide: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The complaining butchers claimed that the right to pursue a lawful common calling is a privilege inherent in citizenship, and that, being citizens of the United States, they enjoyed immunity from abridgment of that

73. Hague v. CIO, 307 U.S. 496, 519-20 & n.1 (1939) (Stone, J., concurring); Colgate v. Harvey, 296 U.S. 404, 443, 445-46 (1935) (Stone, Brandeis, & Cardozo, J.J., dissenting).

74. It could he contended that even if the Slaughter-House Cases were not overruled, Congress, under the privileges or immunities clause and § 5 of the fourteenth amendment, has the power to grant amnesty to persons who have violated state statutes in their acts of protest against the war in Southeast Asia. Although §. 5 historically has been restrictively construed (see the Civil Rights Cases, 109 U.S. 3 (1883); United States v. Harris, 106 U.S. 629 (1882); United States v. Cruikshank, 92 U.S. 542 (1875)), recent decisions seem to indicate that the Supreme Court is willing to give Congress some latitude in defining the phrases of the first section of the fourteenth amendment. See Katzenhach v. Morgan, 384 U.S. 641 (1966). See also United States v. Guest, 383 U.S. 745 (1966). It would seem that under the Civil Rights Act of 1866, as interpreted by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), Congress has the power under the analogous § 2 of the thirteenth amendment to grant to an individual an affirmative privilege against private racial discrimination. Since the fourteenth amendment was designed in part to legitimate the Civil Rights Act of 1866, it is arguable that the fourteenth amendment's privileges or immunities clause was intended to have wider scope than has heretofore been recognized. If the fourteenth amendment was designed to give to Congress the power to define a privilege against private racial discrimina tion, then the fourteenth amendment also might confer on Congress the power to grant amnesty as an immunity of United States citizenship and to forhid even private discrimination against an individual because of his dissent from the war in Southeast Asia. To the contrary it could be argued that the fourteenth amendment granted to Congress expansive power only to prevent racial discrimination. See Oregon v. Mitchell, 400 U.S. 112, 129 (1970).

75. U.S. CONST. amend. XIV, § 1.

privilege. Their case was the first that required the Supreme Court to interpret and apply the fourteenth amendment, and, as one commentator aptly wrote 40 years afterward: "Thus the Supreme Court of the United States began its series of adjudications under the Fourteenth Amendment by substantially repudiating it."""

Justice Miller's reasoning rejecting the plaintiffs' claim under the privileges or immunities clause of the fourteenth amendment was founded on seven propositions, of which the second, third, sixth and seventh, it is submitted, do violence to the Constitution:

(1) Federal citizenship is a status distinct from state citizenship, as the very wording of the first sentence of the fourteenth amendment shows.

(2) Each type of citizenship, federal and state, carries with it a distinct set of privileges and immunities and the two sets do not overlap; thus whatever is a privilege or immunity of state citizenship cannot be a privilege or immunity of federal citizenship.

(3) It is state and not federal citizenship that carries with it "those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign."

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(4) The privilege of pursuing a common calling is a privilege of state citizenship because it is a fundamental right that had existed, subject to the regulatory power of the several statutes, since before the ratification of the Constitution in 1789-i.e., from the time when the colonies became free states.

(5) The second sentence of the amendment protects only the privileges and immunities of federal citizenship.

(6) Therefore, the right to pursue a common calling is not a privilege of federal citizenship and so is not protected by the privileges or immunitics clause of the fourteenth amendment.

(7) It follows that the privileges or immunities clause of the fourteenth amendment is very restricted in its scope: it protects only those privileges and immunities that "owe their existence to the Federal gov

76. E. ARROtt, Justice and the Modern Law 75 (1913).

77. 83 U.S. (16 Wall.) at 76, quoting with approval from Justice Washington's opinion in Corfield v. Coryell, 6 F. Cas. 546 (C.C. E.D. Pa. 1823) (emphasis as in original). The Corfield case, interpreting the privileges and immunities clause of art. IV. § 2, held that the privilege of digging for oysters in New Jersey waters was not a privilege or immunity of citizenship which had to be extended to Pennsylvanians, because enjoyment of the state's public domain was not so "fundamental" a right as to be a privilege inherent in citizenship.