Hastings Law Journal


David S. Bogen


This Article discusses five views of the Slaughter-House Cases: (I) 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 concludes that 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. Although the privileges or immunities clause of Section I 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 5, the clause makes a previously implicit congressional power express. On the other hand, the congressional power to enforce Section 5 does not rise above the scope of the privileges in Section I. 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.

The Article argues that the Slaughter-House Cases should remain the way in which the privileges or immunities clause is interpreted. 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 intended the clause to have substance, but other clauses are better vehicles for providing it. The problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Change risks shrinking rights recognized by the present court or expanding them to areas with less support in history and policy. As Justice Miller argued, a fundamental rights interpretation of the clause would shift power from the states to Congress in traditionally local areas of contract, property and criminal law. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be abandoned is the crucial policy question. The Article contends that other clauses provide adequate power for Congress to deal with national problems, and that federalism should remain an important value.

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