The Slaughterhouse Cases: Getting the 14th Amendment Wrong for 137 Years


The Supreme Court's notorious decision in The Slaughterhouse Cases turns 137 today, which is about 138 years too old. As we've documented here at Reason, Slaughterhouse ranks among the Supreme Court's worst decisions. It made a mockery of the 14th Amendment, effectively gutting the amendment's Privileges or Immunities Clause, which commands, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The clause's purpose was to secure civil rights (privileges) and natural rights (immunities) against the depredations of state and local governments.

At issue in the case was a Louisiana law granting a 25-year slaughterhouse monopoly to a group of politically-connected insiders. Writing for the Court's 5-4 majority, Justice Samuel Miller held that not only was the monopoly perfectly constitutional, but the Privileges or Immunities Clause actually protected only a narrow set of national rights, thus leaving the states free to restrict liberty as they saw fit.

But the Court still has a chance to make things right. Sometime before the end of June the justices will issue their hotly-anticipated decision in McDonald v. Chicago, which will decide whether the Second Amendment applies against the states via the 14th Amendment's Due Process Clause or its Privileges or Immunities Clause (or not at all). The text, history, and original meaning of the Privileges or Immunities Clause all point in the same direction: It was designed to apply fundamental individual rights—including the right of armed self-defense—against abusive state and local governments. Unfortunately, the Court's conservatives, particularly Justice Antonin Scalia, seemed unwilling to follow the text of the Constitution and overturn Slaughterhouse. Time will tell.

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  1. Even if we take the view that all privileges or immunities prohibited from infringement by the Federal government (primarily the full BoR) are, by the 14th, applicable to the states, I’m not clear on what privilege or immunity was being violated in the original case.

    1. have you even read the text of the 14th amendment? its pretty clear that it applies to the states, using language like “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      and the privilege/immunity being violated is… THE SECOND AMENDMENT

      1. I agree it applies to the states. Now try answering the question I actually asked.

  2. Alex: The anti-monopoly principle was a privilege that existed at common law. (See the 1602 case, The Case of the Monopolies.) The Butchers’ Benevolent Association, in the Slaughterhouse Cases, was arguing that this principle was incorporated as against the states via the privileges and immunities clause.

    Of course, even though it was a bad decision, it won’t be overruled in McDonald–rather, expect a 5-4 due process ruling.

  3. Would any justices support a Privileges & Immunities ruling? Thomas maybe? The wise Latina?

    1. Justice Thomas has stated, “in an appropraite case,” he would be prepared to re-examine Slaughterhouse.

      1. That sounds promising. I wonder about Roberts/Alito. I doubt Scalia would be interested.

    2. Thomas, probably.

      The wise Latina ex-prosecutor. Don’t make me laugh.

      1. I was joking about Sotomayor.

  4. The background for the Slaughterhouse cases was segregation. Had the court ruled that the P&I clause protected substantive civil rights, Plessy could have never been decided as it was. The rot that was separate but equal started with the Slaughterhouse cases.

    Worse still the Warren Court didn’t fix it. The court should have ruled in Brown that separate was illegal regardless of the outcome. Instead it ruled that segregation was illegal because separate could never be equal. There is a subtle but important difference there. Rather than saying any citizen has the right to go to any public facility he chooses no matter what, the Court ruled that blacks could not be denied the right to go to white schools because any separate facility was always going to be unequal. The Brown Court actually cited a lot of studies that said that black facilities would always be inferior to white ones. What a shame. All they had to do was rule that the P&I clause meant what it says; If I have the right to go to any public facility in Wisconsin, I have the same right when I go to Georgia no matter what my color.

    1. Are you arguing that the Slaughterhouse cases are worse than Plessy?

      If so, I agree.

      Is it the single worst decision? Perhaps. It has to be included in the conversation along with Dred, Plessy, Munn, West Parish Hotel and In Re Anastaplo.

      1. I am saying that there wouldn’t have been a Plessy if there hadn’t been a Slaughterhouse. If the P&I clause means that you have the same rights in every state, the Court couldn’t have then said that some states can restrict the rights of its citizens more than other states (i.e. if a black person in Wisconsin has the right to go to any water foutain he wants, Georgia can’t take the privilege away from him via legally enforced segregation).

        1. That’d’ve been good only as long as no state created such rights as, for instance, the right to compel the next person to your left to take out your garbage.

  5. I’m not clear on what privilege or immunity was being violated in the original case.

    The right to go into business as you see fit, and not have a bunch of fuckwads hand out a monopoly to their buddies.

    1. Thomas penned a piece in 1989 entitled, The Higher Law Background of the Privileges or Immunities Clause of the 14th Amendment. In it, you will find some good stuff.

      It can be found at 12 Harv. Journal of Law and Public Policy 63.

  6. Perhaps one of our esteemed laywer can explain for me: If the Slaughterhouse case appears to be such a hideous decision after 137 years, how did it ever get made that way? Was there any meaningful rationalization that would make sense then? Or was it just ideology first and logic second?

    1. Like I said above Kenneth, the background was segregation. The Southerners held a majority of the court in 1872. The last thing they wanted was a court ruling that meant states could not restrict the civil rights of their citizens. They knew reconstruction was going to end sometime.

      1. Thanks.

  7. John, btw, I do agree with your reasoning. Isn’t it a delicious irony that politically correct statists often cite this case in support of sustaining a regulation or statute which impairs property and contract rights all the while oblivious its racist roots?

    1. History is not one of the Progressive’s strong suits. And yes it is delicous irony. A bit like progressive’s love of gun control even though gun control was always used as a tool to control black people. If black people had been armed, the KKK wouldn’t have done so much damage. Indeed, in places where black people were armed, most of that nonsense never went on.

  8. kinnath-

    Why don’t you compare the majority opinion, written by Justice Miller with the dissents of Justices Bradely and Field? I know its an awful lot of reading, but just spare your time by not reading any more of Moynihan or Wiegel.

    1. I am an engineer with a busy life. I trust the laywers that post here regularly to provide a useful synopsis.

  9. If the Privileges and Immunities Clause is so gorram important, then surely you could find another abuse of state power that would NOT be covered by the Due Process Clause to use to overturn Slaughterhouse. No sense in holding the applying of 2nd amendment rights against the states hostage to what amounts to your legal pet project. Yes, I’m talking to you, Alan Gura.

    1. I disagree. I think swinging for the fences on P&I on the Chicago case doesn’t hurt their chances of winning on Due Process grounds at all.

      At a minimum (assuming we win on Due Process grounds), there might be some good concurrences laying the groundwork for reviving the P & I.

      1. ++++++

        Tulpa is afraid for his 2nd amendment rights and unwilling to move to a state where they arent in danger.

        Boo fucking hoo.

        Swing for the fucking fences. I have nothing to lose. A strikeout == a sac fly. (Okay, that metaphor doesnt really work if I think too hard about it)

        1. You’re in Reds country, aren’t you Rob? That metaphor reeks of Dusty Baker.

          1. Yeah, I started a fire Dusty campaign the day he was hired.

        2. Actually PA is pretty gun-friendly at the state level, preempting local govts from restricting gun rights, thankfully for us in Philly and the ‘burgh.

          But no one should have to move in order to exercise their federal constitutional rights.

    2. Would it be possible to craft a law that forces the Court to consider Privileges and Immunities when challenged?

  10. kinnath-

    Please do not take offense at my suggestion. I do not think that you have nothing to do.

    Rather, take my suggestion as testament to the notion that one need not be a lawyer to read and understand supreme court opinions just as one need not be a climatologist to know and study the weather.

  11. kinnath, besides, you are the first engineer, in my experiences, who has ever DEFERRED to lawyers on legal issues.

    1. I have seen lots of good information on the “context” of the legal system from our legal folks.

      As far as reading actual laws, I understand English as well as most.

    2. It takes a highly-skilled laywer to argue that simple English words in the Constitution don’t mean what they mean in the real world 😉

    3. Yep, I know I never have. Well, I have on legal matters, but not on constitutional matters. I can fucking read, I dont need a lawyer to explain a plain english document to me.

      1. You want to take a shot at the 2074 pages of Obamacare for me then?

  12. I was wondering if you could email me information about the 14th amendment and its connection with gun control laws. I am a student writing a report on Gun control and I am confused about how the 14th amendment comes into play.

  13. This is an ancient topic, however the supreme court potentially saved us from an expansive federal government in the Slaughter-House cases.

    1. Justice Miller was a Republican appointed by president Lincoln- hardly a secessionist. He even acknowledges and condemns the horrors of slavery in his majority ruling.

    2. More importantly, the Privileges or Immunities clause could have been interpreted to grant nearly unlimited power to the federal government. What exactly are these immunities or privileges? The federal government could have given itself the privilege of a nationalized police force, a national sales tax, “traditional marriage enforcement committee”, you name it. States would lose all of their police power.

    Thank you Justice Miller for protecting us from this menace!

    “this court… has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject” -Samuel Miller

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