The Three Narratives of the Slaughter-House Cases RANDY E. BARNETT The Slaughter-House Cases,1 decided in 1873, involved a state statute granting a franchise to a privately-owned slaughter house, which would then have a monopoly on slaughtering livestock for the entire City of New Orleans and surrounding parishes. In those days, prominent cases were sometimes given descriptive names, such as the Legal Tender Cases2 or the Lottery Case2 The “Slaughter-House Cases" is plural because it consolidated many challenges that had been brought by individual New Orleans butchers as well as by associations of butchers and livestock dealers. Because these challenges alleged that the monopoly violated the Fourteenth Amendment, this then became the first Supreme Court case to pass upon the meaning ofthe Fourteenth Amendment since it was ratified five years earlier. The case became enormously influential —not for everything it held, most of which has been superseded by other decisions, but for what it said about the scope of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”4 Now, if you were a stranger to constitutional law and I read you that sentence, you would think it sounded pretty important, wouldn’t you? “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That sounds like a big deal. Yet, it’s no exaggeration to say that, because of the decision in Slaughter-House and United States v. CruikshanU decided three years later, the Privileges or Immunities Clause ceased to play any meaningful role in protecting either enumerated or unenumer ated rights. Until Justice Thomas’s concur ring opinion in the 2010 case ofMcDonald v. City of Chicago,6 in which he provided the crucial fifth vote to invalidate a city’s ban on all privately owned handguns, the Privileges or Immunities Clause had made just one appearance in a Supreme Court decision since Slaughter-House. The clause has been allbut -redacted from the text ofthe Constitution. 296 JOURNAL OF SUPREME COURT HISTORY “Redacted” is a lawyer’s term for excised or eliminated. For this reason, perhaps it is no surprise that the Court’s decision in Slaughter-House has been widely criticized by constitutional scholars. As Yale Law School’s Akhil Amar has stated: “Virtually no serious modem scholar left, right, and center—thinks that Slaughterhouse is a plausible reading of the Fourteenth Amendment.”7 Not that the modem consensus is unani mous. In a recent book, University of Illinois law professor Kurt Lash has taken up the mantle of defending the Court’s opinion in Slaughter-House,8 Professors Michael Ross9 and Pamela Brandwein10 have also had some kinder things to say about Justice Samuel F. Miller’s majority opinion, as do Ronald Labbe and Jonathan Lurie in their marvelous 2003 book about the history ofthe case.11 In this article, however, I am not going to litigate this dispute. My own view that the majority misinterpreted the Privileges or Immunities Clause is a matter of public record.12 Indeed, in the interest of full disclosure, I should mention that law profes sors Richard Aynes, Jack Balkin, Steven Calabresi, Michael Kent Curtis, Michael Lawrence, Bill Van Alstyne, Adam Winkler, and I filed an amicus brief in McDonald contending that Slaughter-House should be reversed.13 To support that conclusion here, however, would require an exegesis of historical materials and interpretive method ology that would necessarily be incomplete. Even worse, it would be extremely tedious. Instead, I wish to view the case through the lenses ofthree competing narratives. The first is the Narrative of Public Health that is offered to support the majority’s decision to uphold the slaughter-house monopoly. The second is the Narrative of Public Corruption that undercuts their decision. Finally, in recent years a third narrative has been offered to defend the outcome in Slaughter-House'. the Narrative of Race. Then, at the end ofthis article, I am going to question whether we should be judging Supreme Court decisions by such narratives and explain why the...