For the first time since the mid-twentieth century, originalists comprise a majority of the Supreme Court. Yet for all their originalist bona fides and eagerness to overturn precedents, the majority has expressed remarkably little interest in overturning one of the most egregiously wrong Supreme Court cases ever decided: The Slaughter-House Cases (1873). Those cases, whose 150th anniversary this month’s forum marks, eviscerated from the Constitution the Fourteenth Amendment’s crown jewel, the Privileges or Immunities Clause. That clause provides, along with the preceding Citizenship Clause, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
It is commonly believed that the relevant work of the clause is already accomplished under more conservative versions of modern substantive due process and equal protection. But that is not the case. If the clause were to be properly revived, that would raise serious questions about the modern lack of protection for economic liberties, and—even more provocatively—about the modern doctrine of incorporation. To be sure, there is no scholarly unanimity on the scope of the privileges and immunities of US citizens, and there is even less consensus on what work the word “abridge” does. On the latter point, I have a dissenting view, at least relative to contemporary scholars—though the more I speak of my views, the more I discover others agree.
Nevertheless, a careful examination of the debates over the clause’s scope and work shows that scholarly disagreements notwithstanding, the Supreme Court cannot continue to ignore this clause.
The Slaughter-House Cases
The cases that made their way to the Supreme Court in 1873 involved legislation in Louisiana granting a monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company over the slaughtering of animals in New Orleans. Any butcher in the city could continue his trade but had to do so at the premises of the Crescent City Company and pay a fixed rate per animal to the company. The law was ostensibly a health measure and did have some elements important for public health, including the requirement that the landing and slaughtering of animals take place below the city of New Orleans and a requirement for inspection.
Butchers throughout the city sued, claiming that the monopoly and the terms on which they could do business with it violated the Thirteenth Amendment, the common law’s prohibition on monopolies, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The principal theory, however, was centered on the Privileges or Immunities Clause.