Exhuming the Privileges or Immunities Clause to Bury Rational-Basis Review

62 Pages Posted: 28 Mar 2015 Last revised: 10 Apr 2015

Date Written: 2014


This Comment argues that the modern, New Deal-era substantive due process framework for analyzing court-recognized fundamental rights is constitutionally illegitimate and functionally inadequate. Thus, to properly protect the fundamental right to economic liberty, the United States Supreme Court should abandon this framework and employ the Privileges or Immunities Clause of the Fourteenth Amendment in its place.

Part II provides an overview of the Supreme Court’s treatment of economic liberty. Part III illustrates the inadequacy of the substantive due process framework, examines the difficulties occupational licensing regulations cause for entrepreneurs, and illustrates through public choice theory why courts should not rely on legislatures to ease the difficulties experienced by entrepreneurs. Finally, Part IV proposes that the Court should overrule the Slaughter-House Cases and resulting rise of rational-basis review and exhume the Privileges or Immunities Clause. Further, this Comment directly urges the Court to recognize economic liberty as a constitutional fundamental right.

Keywords: constitutional law, economic liberty, judicial engagement, public choice theory, rational basis review, privileges or immunities clause, fourteenth amendment

Suggested Citation

Trotter, Caleb, Exhuming the Privileges or Immunities Clause to Bury Rational-Basis Review (2014). 60 Loy. L. Rev. 909 (2014), Available at SSRN: https://ssrn.com/abstract=2585161

Caleb Trotter (Contact Author)

Pacific Legal Foundation ( email )

555 Capitol Mall
Suite 1290
Sacramento, CA 95814
United States

HOME PAGE: http://www.pacificlegal.org

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