Rhodes on A Silence after Slaughter-House: Nineteenth-Century State Constitutional Substantive Rights, Liberties, and Privileges

Charles W. (Rocky) Rhodes, University of Missouri (Columbia) Law School, has published A Silence after Slaughter-House: Nineteenth-Century State Constitutional Substantive Rights, Liberties, and Privileges at 85 Louisiana Law Review 439 (2025).

In rejecting federal constitutional challenges to the Louisiana legislature’s exclusive butchering grant in the Slaughter-House Cases, the United States Supreme Court opined that it was the states’ obligation to protect fundamental privileges, such as rights to acquire and possess property, engage in trade and commerce, and pursue happiness, subject only to those restraints necessary for the public good. But the states met this charge with silence. State courts across the nation consistently parroted Slaughter-House’s reasoning, even while occasionally acknowledging the decision did not bind their interpretation of state constitutional provisions guaranteeing fundamental rights, liberties, privileges, and immunities. Although two states ratified arguably responsive constitutional provisions affording protection to state privileges and immunities, their judiciaries also followed the Supreme Court’s lead. Yet a minority of states, both before and after Slaughter-House, specifically targeted exclusive state legislative grants through anti-monopoly state constitutional provisions or through common-law doctrines. While not affording broad protections for their citizens’ rights and liberties, these constitution makers and state judiciaries attacked the specific perceived problem through either the majoritarian convention and ratification process or within the majoritarian features of the common law. This symposium piece explores the salient lessons this nineteenth-century response offers for the past, present, and future of state constitutional interpretation in Louisiana and throughout the nation. Ascertaining the meaning of universal American foundational jurisprudential principles—such as liberty, rights, privileges, and immunities—has always been a predominantly shared judicial enterprise, despite some arguably significant textual variations among America’s constitutions. But state courts depart more frequently from the universal approach and federal constitutional law’s influence when supported by either a precise state constitutional guarantee targeting the issue or a longstanding state common-law tradition. These methods typically prevail when the state constitution’s design and accompanying institutional incentives reinforce the majoritarian features of state constitutionalism. This explains the state constitutional response to Slaughter-House over 150 years ago and still holds true today.

Download the article from SSRN at the link.