Wednesday, December 03, 2003

ONE FREE OVERRULE ANSWER

Sugar, Mr. Poon? asks:

If you could remove one Supreme Court case from the books, which would it be?

Simple answer: The Slaughterhouse Cases, which killed the privileges and immunities clause of the 14th Amendment. As Rogers Smith notes, Slaughterhouse's "doctrines soon provided a legitimating framework for Republican desires to back off from the liberal nationalizing initiatives of the 1860s" (Civic Ideals, 333). Not an original answer on my part of course. Libertarians like the folks at IJ agree that this case has had tragic consequences even though I would disagree with them on the reasons. Timothy Sandefur and John Eastman have made similar arguments as the folks at IJ, but it's not just libertarian property-rights defenders who like the clause -- people who like civil rights more broadly, particularly with respect to struggles over race, often refer to the clause, as do people who think that the retreat from Reconstruction represented a retreat from defensible views of the primacy of national power over state power. Without Slaughterhouse, the return to states' rights views would be less plausible. (Go here, the linked essay on "originalism and federalism" from the post at Southern Appeal, for example, and do a page search for "reconstruction." The implication that the Civil War and reconstruction amendments had no effect on federalism is staggering to me.) (Via Balasubramania's Mania).