The Slaughter-House Cases

Privileges or Immunities:  Academic Resources (NEW)

by William H. Mellor and
Scott G. Bullock

In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. F.C.C. v. Beach Communications, 113 S Ct. 2096, 2101 (1993)

Today the right to earn an honest living receives less legal protection than the "right" to a welfare check. As a result, economic liberty is one of our least protected civil rights. Such is the legacy of The Slaughter-House Cases, 16 Wall (U.S.) 36 (1873), with its mortal blow to the privileges or immunities clause of the Fourteenth Amendment. In 1869, bribe-induced Louisiana legislators created a 25-year monopoly for slaughtering livestock. Butchers who lost their livelihoods challenged the law as a violation of the 14th Amendment. In a 5-4 decision–extremely rare in that era–the Supreme Court upheld the monopoly. Ignoring original intent, the majority held that "privileges or immunities" encompassed only rights expressly recognized by the original Constitution, such as access to foreign commerce and navigatble waters, habeus corpus, and freedom of movement from state to state. But not the Bill of Rights, and not economic liberties.

Over the ensuing 125 years, the privileges or immunities clause has not been invoked to limit or strike down a single economic regulation, giving tragic prescience to the observation in Justice Field's Slaughter-House dissent that the majority opinion meant that the clause "was a vain and idle enactment which accomplished nothing ." 83 U.S. at 96.

April 14, 1998 marks the 125th anniversary of this infamous decision. This website seeks to inform readers of this decision and why it is important to the Institute's work. Since the inception of the Institute for Justice, a central part of our mission has been a litigation and education campaign to overturn The Slaughter-House Cases and to restore full constitutional protection for economic liberty. Our campaign has been strategic, targeting government-created barriers to entry-level entrepreneurship such as taxicab monopolies and cosmetology licensing laws. It includes not only litigation but public relations, education, and legislative reforms. The original litigation blueprint was set forth in IJ litigation director Clint Bolick's Unfinished Business, A Civil Rights Strategy for America's Third Century (Pacific Research Institute, 1990). Its genesis can be traced to two conferences IJ President Chip Mellor organized at which the conferees first helped identify and refine issues and strategies, then critiqued the final draft manuscript. The Institute for Justice's economic liberty litigation program is modeled on those earlier efforts and seeks to build on the experience the Institute has gained since we opened our doors.

On December 1-3, 1995, the Institute convened a historic conference of 20 prominent legal scholars in Monterey, California dedicated to a common mission: laying the groundwork to overturn the Slaughter-House decision. Inspired by the 1906 Niagara conference that produced the legal strategy that led to the demise of Plessy v. Ferguson and the "separate but equal" doctrine, the Institute's conference brought together legal scholars who have criticized Slaughter-House from different philosophical perspectives. As cases move toward the Supreme Court, the Institute hopes the scholars will form the nucleus of a larger group of academics that will formally support our call to reconsider Slaughter-House.

The Constitutional and Social Costs of Slaughter-House

In addition to eviscerating important protections for individual liberties, the Slaughter-House decision set constitutional jurisprudence off on a wrong path. In the absence of the privileges or immunities clause, courts have drawn on other constitutional provisions and developed a variety of legal theories to constrain economic regulation, the most controversial, of course, being substantive due process. Ultimately, these alternative constitutional provisions have proved inadequate for a task they were never clearly intended to perform.

Lower courts still occasionally render bold decisions using the equal protection or due process clauses to strike down economic regulations. See, e.g., Brown v. Barry, 710 F. Supp. 352 (D.D.C. 1989). The Supreme Court, however, has taken an increasingly dim view of the use of due process or equal protection for this purpose. Lochner v. New York, 198 U.S. 45 (1905), stands as a precedential pariah and Yick Wo v. Hopkins, 118 U.S. 356 (1886), remains in lonely limbo as valid, but ineffectual caselaw. Thus Justice Thomas' opinion in Beach Communications constitutes but the latest and most unequivocally deferential pronouncement from the Supreme Court recognizing government's sweeping authority in the realm of economic regulation. As a result, as long as Slaughter-House stands unchallenged, economic liberty will remain a constitutional chimera.

Bleak though the current state of affairs may be and long the intervening years, three trends offer hope for the prospect of eventually overturning Slaughter-House and restoring constitutional vitality to the privileges or immunities clause. A growing body of scholarship challenges the legal and moral underpinnings of Slaughter-House. This scholarship, and its intellectual ferment, offer crucial impetus for a campaign to reverse this precedent. (For a sampling of this work, see the Bibliography.) Coinciding with this ferment is the Supreme Court's apparent willingness of late to recognize boundaries on heretofore unchecked government authority. See e.g., Lucas v. South Carolina Coastal Commission, 112 S. Ct. 1624 (1995). Perhaps most enticingly, Justice Rehnquist in Dolan v. City of Tigard, 114 S.Ct. 2309, (1994), seemed to open the door for eliminating the dichotomy between preferred constitutional rights and those like economic liberty and property rights accorded inferior treatment: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation " Id. at 2320.

Meanwhile, overwhelming evidence and a mounting consensus recognize the failure of the welfare state, particularly in the inner city. This provides a sociopolitical climate ripe for arguments in favor of opening up entry-level entrepreneurial opportunities and removing unnecessary governmental constraints on inner-city enterprise.

Overturning Slaughter-House and restorting judicial protection for economic liberty is part of the Institute's core mission. The inauspicious anniversary of this decision is a good time to both gain a better understanding of the decision and rededicate ourselves toward eliminating it from the casebooks.

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