How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism

Abstract:     
This essay discusses, in a slightly humorous vein, the author's research and development of his article, "The Lost Compromise," 61 Ohio St. L.J. 1051 (2000) (available at http://ssrn.com/abstract=229228), which challenges the conventional, orthodox view that the Supreme Court in the Slaughter-House Cases (1873) intentionally rejected the theory that the Fourteenth Amendment "incorporates" and applies the Bill of Rights to the states.

The essay argues that Slaughter-House's "bad rep" is unjustified. Rather then being a travesty in which the Court judicially repealed the Fourteenth Amendment Privileges and Immunities Clause, the decision was a tragedy of failed promise. Slaughter-House reflected a moderately progressive compromise view of the Amendment. It allowed ample leeway for appropriate governmental regulation of economic, social, and health matters, while leaving the door open to - and arguably endorsing - the application of the Bill of Rights to the states. But the decision's progressive promise was betrayed by later Supreme Court cases that disincorporated the Bill of Rights, and - as in Lochner v. New York (1905) - perverted the Amendment into a weapon to strike down progressive economic and social legislation.

The author has discussed related issues regarding the Fourteenth Amendment and the Bill of Rights in, e.g., "The Road to Twining," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443), and "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J., No. 6 (forthcoming 2007) (available at http://ssrn.com/abstract=963487).

Keywords: Fourteenth Amendment, Bill of Rights, incorporation theory, constitutional law, individual rights, Slaughter-House Cases, Lochner v. New York

JEL Classifications: K10

Accepted Paper Series