What If Slaughter-House Had Been Decided Differently?

29 Pages Posted: 19 Mar 2012  

Kermit Roosevelt III

University of Pennsylvania Law School

Abstract

In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges or Immunities should have played, it suggests, Due Process and Equal Protection might be doing very different things.

Keywords: Slaughterhouse Cases, privileges or immunities clause, Fourteenth Amendment, Slaughter-House, incorporation, constitutional interpretation, 14th Amendment, Due Process, Equal Protection, privileges and immunities, sovereignty, federalism, fundamental rights, police power

Suggested Citation

Roosevelt, Kermit, What If Slaughter-House Had Been Decided Differently?. Indiana Law Review, Vol. 45, p. 61, 2011; U of Penn Law School, Public Law Research Paper No. 12-19. Available at SSRN: https://ssrn.com/abstract=2024971

Kermit Roosevelt III (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215.746.8775 (Phone)

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