To that end, the Court should overturn the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) and restore the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause. Amicus does not request the invalidation of a nearly century-and-ahalf old precedent lightly. But Slaughter-House not only remains a prominent blemish on this Court’s record, it also continues to wreak havoc on the coherence of constitutional jurisprudence. The egregious infringement of petitioners’ fundamental rights to earn a living provides the perfect vehicle for righting this wrong and subjecting violations of long-recognized rights to meaningful judicial review.
But even if the Court elects not to revive the “superior alternative” of the Privileges or Immunities Clause and instead falls back on the “tenuous footing” of substantive due process, McDonald v. City of Chicago, 561 U.S. 742, 812 (2010) (Thomas, J., concurring), the right to earn a living should still be treated as fundamental—with any abridgements subject to meaningful judicial review. The right is both deeply rooted in Anglo-American legal tradition and inherent in a free and open society. Moreover, the Court has often scrutinized rights violations directed at politically powerless groups, looking behind the pretexts offered as justification. Because infringements on the right to earn a living often impact powerless groups and are all-too-commonly driven by self-seeking economic protectionism, meaningful scrutiny is warranted.
The Cato Institute
May 2018
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