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The Slaughterhouse Cases at 150

We the People

CHAPTER

Would Justice Thomas's Incorporation of the Bill of Rights Be a Revolutionary Thing?

Professor Roosevelt: Justice Thomas's invitation to resurrect privileges or immunities clause wouldn't be revolutionary. He says it would allow incorporation of bill of rights through the privileges or immunity clause as well as enforcement of a narrow set of other rights. But he argues that much of the work was already done by the due process clause. Professor Roosevelt: There's no practical consequence. You don't open a Pandora's box that hasn't already been opened.

00:00
Speaker 3
Professor Roosevelt, what do you think would happen if the court accepted Justice Thomas's invitation to resurrect the privileges or immunities clause? Professor Lash has said it wouldn't be revolutionary because Justice Miller was correct essentially. It would allow the incorporation of the bill of rights through the privileges or immunities clause as well as the enforcement of a narrow set of other either enumerated rights or rights secured by enumerated powers. But it wouldn't open a Pandora's box. You've argued powerfully that it wouldn't make that much of a difference because much of the work of privileges or immunities was in fact done by the due process clause. Tell us more about your
Speaker 2
argument. Well, so first I should say I was a little bit puzzled by what Kurt was saying to the extent that he was defending Justice Miller's opinion by saying privileges or immunities is meaningful if you incorporate the bill of rights. I think everyone agrees with that, but the opinion in Slaughterhouse that people say gives you that reading of privileges or immunities is the Bradley dissent. So the question of whether Miller intended to incorporate the bill of rights is a very interesting question about Miller's opinion, but in terms of how the Slaughterhouse case has been understood, it's been understood to stand for the proposition the privileges or immunities clause does not incorporate the bill of rights. And the question of what would happen if we shifted incorporation over to privileges or immunities, my view is the two descents, Bradley and Field, give you very sensible readings of what the Reconstruction Congress was trying to achieve, because they both say at the founding we had a certain understanding about the relationship between the states, the people and the national government, and that turned out to be wrong or it turned out to be incomplete. The states turned out to be threats to liberty and now after Reconstruction we've got constitutional provisions that protect people against the states too. And how do you do that, do you do it with anti-discrimination, do you do it with fundamental rights? Well, it turns out we've done both of those things. So the two descents in Slaughterhouse cases, of course they don't become law in that case because they're descents, but they do become our law under the different provisions of Section 1 because the Justice Bradley fundamental rights dissent comes to life through the due process clause and the Justice Field anti-discrimination dissent comes to life through equal protection. And what people are asking for, generally speaking now, is keep doing the same thing we're doing under the due process clause. So that is apply the Bill of Rights against the states and protect maybe some unenumerated fundamental rights, just do it through privileges or immunities instead. And if that's what you do, there's really no change there. There's no practical consequence. You don't open a Pandora's box that hasn't already been opened. You'll have the same debate. How do we identify unenumerated fundamental rights and people will say the same things? Some people will say judges have to decide because they're philosophers and some people will say no, we should define the right narrowly and look at our history and tradition. But practically speaking, nothing will change. And that's actually, I think, the source of a lot of the judicial resistance and Justice Scalia is in particular. It doesn't seem like it will make a
Speaker 3
difference.

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