Let's All Agree to Disagree, and Move On: Analyzing Slaughter-House and the Fourteenth Amendment's Privileges or Immunities Clause Under "Sunk Cost" Principles

Abstract

The Privileges or Immunities Clause of the Fourteenth Amendment has lain nearly dormant since the U.S. Supreme Court’s 1872 decision in the Slaughter-House Cases. Although legal historians have fought to overturn Slaughter-House for decades to restore the Privileges or Immunities Clause to its intended preeminence in American jurisprudence, these historians cannot agree on the correct meaning and scope of the clause. Each historical interpretation of the clause would affect the scope and power of the Privileges or Immunities Clause in the modern era; however, American jurisprudence has already found the clause’s intended powers in alternative constitutional provisions post-Slaughter-House. Accordingly, the Supreme Court’s likely reliance on “sunk cost” principles to justify its modern refusal to revive the clause is the most rational resolution to this long-debated issue of American Constitutional law.