Slaughter-House Five: Views of the Case

Abstract

This article discusses five views of the Slaughter-House Cases: 1) that Justice Miller was deliberately ambiguous about whether the Bill of Rights is incorporated against the States by the Privileges and Immunities Clause of the Fourteenth Amendment; 2) that Justice Miller rejected incorporation through the Privileges and Immunities Clause; 3) that he adopted incorporation of the Bill of Rights in the Slaughter-House Cases; 4) that the Slaughter-House Cases should be reexamined and overturned by the modern court; and 5) that the Slaughter-House Cases should remain the way in which the privileges or immunities clause of the Fourteenth Amendment is interpreted. The article's main points are: 1. Recent revisionist scholars who argue that Justice Miller intended his opinion on privileges and immunities in the Slaughter-House Cases to support incorporation of the bill of rights are wrong. The smoking gun on this point is a letter written by Chief Justice Waite that thanks Miller for suggesting the Slaughter-House Cases as a citation in the Cruikshank opinion and for praising his opinion in that case. 2. Although the privileges or immunities clause of section one of the Fourteenth Amendment refers to preexisting rights and creates no new ones, it is not empty. As a point of reference for congressional power under section five, the clause makes a previously implicit congressional power express. 3. The congressional power to enforce section five does not rise above the scope of the privileges in section one. If the Court continues to find Congress has no power under Article I to create private rights of action against the states, the recognition that Article I statutes are privileges of citizenship will not bootstrap the power into overriding state sovereignty. 4. None of the alternative substantive readings urged for the privileges or immunities clause is satisfactory as a historical matter, in part because the framers had a variety of internally inconsistent views. They did intend the clause to have substance, but other clauses are better vehicles for providing that substance. 5. A shift from substantive due process to the privileges or immunities clause would be a mistake. The linguistic and precedential problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Instead, switching clauses creates unwise risks of shrinking rights recognized by the present court or expanding them to areas with less support in history and policy. 6. A fundamental rights interpretation of the clause would shift power in traditionally local areas of contract, property and criminal law from the states to Congress. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be obliterated is the crucial policy question. The article contends other clauses are adequate sources of power for Congress to deal with national problems, and federalism should remain an important value.