ABSTRACT
In The Slaughterhouse Cases, the Court interpreted the Fourteenth Amendment’s Privileges and Immunities Clause to only protect rights expressly enumerated in the Constitution and held that the states have the sole authority to create unenumerated
rights.1 The Court’s narrow interpretation of the clause, along with its unworkable distinction between federal and state citizenship, rendered individuals, in their capacity as state citizens, vulnerable to arbitrary state legislation. Additionally, the Court’s decision ignored the plain language of the Ninth Amendment, which states that the rights enumerated in the Constitution shall not be construed to “deny or disparage” other rights retained by the people.2 In so doing, the Court missed an opportunity to strengthen judicial review in a manner that would be consistent with the Constitution’s text and indirectly led to the creation of heavily criticized doctrines such as substantive due process.
