Privileges, Immunities, and Substantive Due Process
For only the second time in recent memory, the U. S. Supreme Court has chosen to address the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause. That clause, which most scholars now agree was intended as the centerpiece of the Amendment, was famously mutilated by the 1873 Slaughter-House Cases, when a 5-4 Supreme Court ruled against a group of Louisiana butchers who argued that a state-created monopoly in the slaughtering industry deprived them of constitutionally protected economic freedom. The decision entombed, if it did not actually kill, the Privileges or Immunities Clause, rendering it for all intents and purposes void. Now that the Court appears prepared to reconsider that decision, it is important that we understand the complexities of the Slaughter-House error, lest future courts also be led astray. It is equally important to understand what effect reviving the Privileges or Immunities Clause would have on the neighboring Due Process Clause.
In this article, I wish to explore these two questions. First, why was Slaughter-House wrongly decided? Although there are many flaws in that decision, I contend that the most fundamental explanation, and the one that accounts for the case’s other errors, involves important abstract principles of federalism and sovereignty. In short, Justice Samuel Miller and his colleagues failed to give effect to the concept of “paramount national citizenship” that the Amendment’s authors sought to constitutionalize.
