What If Slaughter-House Had Been Decided Differently?

Kermit Roosevelt III, University of Pennsylvania

Indiana Law Review, Vol. 45, Pg. 61, 2011.


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.