James Rogers on Ilan Wurman on the Slaughter-House Cases
Michael Ramsey
At Law & Liberty, James R. Rogers: What Would It Mean to Reverse Slaughter-House? (responding to this essay by Ilan Wurman). From the introduction:
In his lead forum essay, Ilan Wurman argues that The Slaughter-House Cases are “one of the most egregiously wrong Supreme Court cases ever decided,” and that “[i]f the [privileges or immunities] clause were to be properly revived, that would raise serious questions about the modern lack of protection for economic liberties.”
Yes. And no. The answer depends on what part of the decision we’re considering. While a reasonable reading of the 14th Amendment privileges or immunities clause would hold that it does apply to the state-level privileges or immunities, the Louisiana action would not violate the clause even if the Court did apply it in the cases.
And in conclusion:
Shifting the textual locus of protected economic rights from the 14th Amendment Due Process clause to the 14th Amendment privileges or immunities clause would not perforce change the standard of review courts apply to evaluate abridgments of those rights.
This point does not require the continued use of the rational basis test. After all, in Lochner, the dissenters who would have upheld that New York statute flatly affirmed that the Constitution protects “a liberty of contract which cannot be violated.” The standard of review the dissenters applied—which verbally mirrored the test applied by the majority in Lochner—was,
[I]n determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health.
Rather, the majority and dissenters disagreed on whether or not economic legislation came to it with the presumption of constitutionality. The dissenters said “yes,” the majority implied not, although never expressly said as much. Wurman’s privileges or immunities clause would seemingly place the burden of proof on the state (states would “demonstrate that its regulation is reasonably related to the purpose of the right” (emphasis added)). It is unclear, however, that even an originalist Court would necessarily agree with Wurman and thereby resurrect the distinctive feature of the Lochner-era’s economic substantive due process.
I am all for overturning the textual evisceration of the privileges or immunities clause that occurred in The Slaughter-House Cases. I am even—although this is a closer call given possibly unintended consequences—in favor of some sort of heightened judicial scrutiny of economic legislation beyond the deferential rationality test. I am skeptical, however, that the former would perforce accomplish the latter.