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Privileges, Immunities, and Substantive Due Process

58 Pages Posted: 2 Dec 2009 Last revised: 14 Jun 2010

Timothy Sandefur

Goldwater Institute

Date Written: December 1, 2009

Abstract

In McDonald v. Chicago, the Supreme Court is being asked to reconsider its disastrous 1873 decision in The Slaughter-House Cases. This article seeks to discuss Slaughter-House in a broader context, to address two questions. First, what is the fundamental reason that Slaughter-House was wrongly decided? Although the decision has many flaws, I contend that the deepest reason, and the one that accounts for the case’s other errors, involves important abstract principles of federalism and sovereignty; in particular, the Slaughter-House Court failed to give effect to the principle of "paramount national citizenship" that was a component of Republican Party ideology and the most fundamental.

Second, is it true, as some scholars and judges contend, that overruling Slaughter-House and restoring vitality to the privileges or immunities clause would warrant abandoning the theory of "substantive due process"? If so, then the McDonald decision could herald an even more far-reaching revolution of law than it would at first appear. But in fact, "substantive due process" is not a mere substitute for the lost privileges or immunities clause, and overruling Slaughter-House should not coincide with an abandonment of theat theory. Rather, both doctrines are independent, constitutionally valid sources of protection against excessive state power.

Keywords: Slaughterhouse Cases, Slaughter-House Cases, Slaughter House Cases, McDonald v. Chicago, privileges or immunities, privileges and immunities, sovereignty, federalism, fundamental rights, liberal originalism

Suggested Citation

Sandefur, Timothy, Privileges, Immunities, and Substantive Due Process (December 1, 2009). NYU Journal of Law & Liberty, Vol. 5, No. 1. Available at SSRN: https://ssrn.com/abstract=1516667

Timothy Sandefur (Contact Author)

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