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Evan Bernick on Ilan Wurman on the Slaughter-House Cases
Michael Ramsey

At Law & Liberty, Evan Bernick (Northern Illinois): The Constitutional Political Economy of Carcass Disposal.  From the introduction:

Ilan Wurman has written an engaging essay about the importance of overruling The Slaughter-House Cases without telling readers why they were wrongly decided. I concur in part, dissent in part, and request a supplemental briefing.

Wurman is correct that Slaughter-House rests on an implausible theory of the Fourteenth Amendment and that there is no salvaging its constitutional reasoning—notwithstanding the rehabilitative efforts of Kurt Lash and Judge Kevin Newsom. Lash and Newsom are wrong in two respects—first, in maintaining that the Fourteenth Amendment “incorporates” against the states all and only rights specifically enumerated in the Constitution’s text; second, in reading Justice Miller’s opinion for the Court in Slaughter-House to be consistent with an enumerated-rights theory.

Randy Barnett and I have argued that the original public meaning of the Fourteenth Amendment’s Privileges or Immunities Clause protects fundamental civil (as distinct from political) rights that were widespread and entrenched in the states and associated with citizenship. These rights establish a floor below which states cannot fall; a state cannot unreasonably discriminate in its regulation or protection of them or deny them to everyone. Many of these fundamental rights are enumerated, like those listed in the first eight amendments; others, like the rights to organize and conduct one’s family life, marry, or earn a living, are not. Miller’s bizarre theory of the privileges and immunities of citizenship—which includes the right to access subtreasuries but not the freedom of speech—is not consistent with our fundamental-rights theory or an all-and-only-enumerated-rights theory. When the Court “officially” rejected the incorporation of enumerated rights in United States v. Cruikshank (1875), it followed Slaughter-House’s reasoning.

Wurman is also correct that the Civil Rights Act of 1866 is an indispensable guide to identifying just what sort of rights the Privileges or Immunities Clause protects. We have some important differences, however, concerning the details. ...

And from the conclusion:

Here is where I sit: Slaughter-House reached the right conclusion for the wrong reasons. The right to pursue a lawful calling was widespread, entrenched, and associated with citizenship when the Fourteenth Amendment was ratified. It was and is a fundamental right protected by the Privileges or Immunities Clause. But the monopoly was a reasonable regulation of that right, not a mere pretext for wealth extraction that was calculated to reduce independent artisans to dependent wage laborers. It was an ingenious effort to address a public health crisis in New Orleans. Replacing a panoply of grossly unsanitary small-scale slaughtering operations adjacent to the Mississippi River with a single, price-regulated abattoir in a centralized location to which all butchers had access, fell comfortably within the scope of states’ reserved powers to regulate the rights of some in the interest of the health and safety of all.