Earl M. Maltz, Rutgers Law School, has posted Rehabilitating the Slaughter-House Cases:
The year 2023 marks the 150th anniversary of the decision in The Slaughter-House Cases. In rejecting a constitutional challenge to a Louisiana statute that imposed stringent limitations on the operation of slaughterhouses in the New Orleans area, the Slaughter-House majority gave an extremely narrow reading to the scope of the Privileges or Immunities Clause of the Fourteenth Amendment. As a result, the Court effectively eliminated the possibility that that clause would become a source of significant constraints on the actions of state governments generally.
Most scholars have been extremely critical of the reasoning of the Slaughter-House majority, arguing that the meaning that had been attributed to the phrase “privileges and immunities of citizens” in other contexts during the relevant time period indicted that a more robust interpretation of the Privileges or Immunities Clause would have more aptly reflected the original meaning of the language of the clause. However, a small number of commentators such as Kurt Lash and Philip Hamburger take a different view, arguing that only a narrow reading of the concept of “Privileges or Immunities of citizens of the United States” is consistent with the historical record.
Disagreements such as these were at least implicitly anticipated by some of those who were intimately involved in the process of drafting the Fourteenth Amendment. Thus, for example, during the discussions of the proposed amendment on the Senate floor, Democratic Sen. Reverdy Johnson of Maryland, who was a member of the Joint Committee on Reconstruction, declared that he supported the Due Process Clause, but argued that the Privileges or Immunities Clause should be removed from section one because “I do not understand the effect of that.” Similarly, Republican Rep. George S. Boutwell of Massachusetts, who had also been a member of the joint committee, would later recall that the “euphony and indefiniteness of meaning” of the Privileges or Immunities Clause was a “charm” to Republican Rep. John A. Bingham of Ohio, the person who was the author of section one.Against this backdrop, no amount of research is likely to provide a clear, unambiguous answer to the question of how one should interpret the Privileges or Immunities Clause from a traditional originalist perspective. Cognizant of this reality, this essay approaches the analysis of The Slaughter-House Cases from a somewhat different direction. The essay does not make any effort to examine the historical evidence of the original meaning of the concept of “Privileges or Immunities of citizens of the United States” in the abstract. Instead, after briefly describing the arguments made by both the majority and dissenting opinions in Slaughterhouse itself, the essay seeks to place the decision to add the Privileges or Immunities Clause to the Constitution in historical context, focusing on the purposes that the passage of the Fourteenth Amendment as a whole was intended to serve and also discussing the circumstances that led to the decision to replace a simple prohibition on racial discrimination with the formulation of section one that was ultimately adopted. The essay concludes by arguing that the position taken by the majority in Slaughter-House reflected a more accurate understanding of the goals that the Fourteenth Amendment was designed to achieve than the more expansive reading advocated by the dissenters in the case.
--Dan Ernst
