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

9 Pages Posted: 12 Nov 2007 Last revised: 8 May 2010

Bryan H. Wildenthal

Thomas Jefferson School of Law

Abstract

This essay discusses, in a somewhat wry vein, the author's research and development of the article, "The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment," 61 Ohio St. L.J. 1051 (2000) (available at http://ssrn.com/abstract=229228). The latter article, and this essay, challenge 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.

This essay argues that Slaughter-House's bad reputation is largely unjustified. The decision is widely viewed as a travesty in which the Court judicially repealed the Fourteenth Amendment Privileges and Immunities Clause. But, in fact, it 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 progressive potential of Slaughter-House 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.

Additional articles by Professor Wildenthal relating to the Fourteenth Amendment and the Bill of Rights include: "The Road to Twining: Reassessing the Disincorporation of the Bill of Rights," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443); "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007) (available at http://ssrn.com/abstract=963487); and "Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873," 18 J. Contemp. Legal Issues 153 (2009) (available at http://ssrn.com/abstract=1354404).

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

JEL Classification: K10

Suggested Citation

Wildenthal, Bryan H., How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism. Thomas Jefferson Law Review, Vol. 23, No. 2, p. 241, 2001; Thomas Jefferson School of Law Research Paper No. 1028183. Available at SSRN: https://ssrn.com/abstract=1028183

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4342 (Phone)

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