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The Implications of Slaughter-House Have Changed According to That Opinion's Own Terms
Andrew Hyman

The Fourteenth Amendment will turn 150 years old in July, and its most elusive clause is beyond doubt the Privileges or Immunities Clause (PIC), about which I have ruminated before at this blog.  Having written law review articles focusing on the two other clauses in that sentence of the Amendment (i.e. the Equal Protection Clause and the Due Process Clause), I have been trying to muster something scholarly and illuminating to write about  PIC.

The leading precedent, of course, is Slaughter-House, decided in 1873 by a closely divided Court.  Justice Samuel Miller wrote the majority opinion for five judges, and Justice Stephen Field wrote in dissent for four judges.  The issue in that case did not involve any right enumerated in the Constitution; the question instead was whether the State of Louisiana could require butchers to do their butchering in a consolidated and sanitary location under supervision of a state-established monopoly.  But the rationale and the dicta in Slaughter-House have been influential with regard to incorporation of the Bill of Rights, even apart from the actual decision.

In 2010, the U.S. Supreme Court decided 5-4 that the Second Amendment is incorporated against the states via the Fourteenth Amendment, in the case of McDonald v. Chicago.  Justice Alito wrote for four judges in favor of incorporation via substantive due process, saying "We therefore decline to disturb the Slaughter-House holding."  That was painful for me, because I view substantive due process as essentially illegitimate, not to mention unlimited in scope -- essentially a democracy-killer.  I wrote an amicus brief in that case, and was happy to see Justice Thomas cast the deciding vote based upon the Privileges or Immunities Clause instead.  Justice Thomas wrote that Slaughter-House "arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship."  But Thomas also took issue with Slaughter-House: "I reject Slaughter-House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship."  But does it?  After all, the Court in Slaughter-House specifically said that various constitutional prohibitions against the states are privileges or immunities of citizens of the United States even though they apply against Congress too (e.g. “the rights secured by the thirteenth and fifteenth articles of amendment, and by the other [due process] clause of the fourteenth, next to be considered”).

The Privileges or Immunities Clause (PIC) has been a subject of innumerable scholarly analyses, in books, law reviews, and elsewhere.  As Justice Scalia once said, it is the “darling of the professoriate.”  I was in the room when Scalia said that, and although he said it dismissively there are excellent reasons why PIC has warranted intense study.  It was meant to be a central part of the compromise allowing rebel states to re-join the Union after the Civil War.  And, unlike the Due Process Clause, the leading supporters of PIC actually thought it would be capable of incorporating the Bill of Rights against the states.  Moreover, the interpretation of PIC in Slaughter-House places strict limits upon philosopher-judges who would prefer to wander beyond incorporation of the Bill of Rights, and who relish removing important matters from the control of legislators and electorates.   

Many scholars believe the majority opinion in Slaughter-House favored incorporation of the Bill of Rights, and many other scholars disagree.  The opinion itself was not crystal clear on that point.  As the quote of Justice Alito above indicates, Slaughter-House was eventually construed by the Court to reject incorporation of the Bill of Rights under PIC.   Although Slaughter-House was ambiguous on that point as of 1873, Slaughter-House by its own terms did not remain ambiguous on that point.  Here is the key sentence in Justice Miller’s opinion:

The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

Accordingly, it made good sense in 1873 to read the ambiguous parts of Justice Miller’s opinion as rejecting incorporation of the Bill of Rights against the states.  But the situation is different now, because incorporation of the Bill of Rights against the states is no longer “so great a departure from the structure and spirit of our institutions.”  It is now hardly any departure at all, no matter whether you think that has happened by the use or instead by the abuse of the Due Process Clause.  The bottom line is that this reasoning by Justice Miller implies we should no longer construe the ambiguity in his opinion against incorporation of the Bill of Rights, and indeed it is very easy to read his opinion as supporting incorporation.  At the same time, Miller’s opinion prescribed some strict and unambiguous limits on going much farther than incorporation.  For example, to determine what are the privileges or immunities of citizens of the United States, he flatly rejected looking at state law either as it existed in the past or how it exists now, nor did he give any weight to laws made by territorial legislatures or by any body but Congress.  And, the judges in Slaughter-House were unanimous that PIC does not give either Congress or the courts any ongoing power to cook up new privileges or immunities of citizens of the United States; as Justice Field wrote in dissent, “The amendment does not attempt to confer any new privileges or immunities upon citizens….”

I have not yet seen any scholarly article suggesting what is suggested above: that the implications of Slaughter-House have morphed because of incorporation under the Due Process Clause.  But, I am pretty sure of it, even assuming that incorporation under the Due Process Clause has been illegitimate.  This sesquicentennial of the Fourteenth Amendment would be so much better if we start actually obeying the amendment, and the Privileges or Immunities Clause could get us there.