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Judicial Activism

Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning. As such, activism does not mean the mere act of striking down a law.

The Slaughterhouse Cases


In a 5-4 decision written by Justice Miller, the Supreme Court held that Louisiana’s granting of a semi-monopoly in the slaughterhouse industry to one company was not a violation of the Fourteenth Amendment’s guarantee that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Court gave their understanding of the Fourteenth Amendment’s ratification, reasoning that the privileges or immunities clause is not “a protection to the citizen of a State against the legislative power of his own state” and that to argue otherwise is to rely on an incorrect assumption “that the citizenship [of citizens of the United States and those of the several States], and the privileges and immunities guaranteed by the clause are the same.” Finally, the Court held that “nearly every civil right for the establishment and protection of which government is instituted” along with “those rights which are fundamental” are not protected by the privileges or immunities clause.


The majority in Slaughterhouse insists that the recent ratification of the Fourteenth Amendment “is fresh within the memory of us all,” but that did not help the majority avoid contorting the text of the Amendment’s first section or nullifying rights. Absent in the majority’s historical analysis of the Fourteenth Amendment is a discussion of the Amendment’s impetus, the Civil Rights Act of 1866, and more broadly, an understanding of the Fourteenth Amendment’s purpose.

The Civil Rights Act of 1866 was written to protect emancipated slaves from discriminatory state laws enacted after the Civil War known as the “Black Codes”. Because the federal government did not currently possess the authority to enact the Act’s provisions, Congress ratified the Fourteenth Amendment in order to enforce the Act. The Act was meant to protect the ability of all citizens “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.”  In light of the Act’s provisions, and the construction of the Fourteenth Amendment’s first section, part of the Amendment’s purpose becomes clear: to alter the nature of citizenship and guarantee federal protection of certain civil rights mentioned in the Civil Rights Act of 1866. The Slaughterhouse majority fails to consider either of these purposes, mistakenly assuming a separation between federal and state citizenship, and misreading what in part composes the privileges or immunities of federal citizenship. It is necessary to provide the analysis of the Amendment that the majority did not.

The Fourteenth Amendment’s citizenship clause, which guarantees that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside,” appears immediately before the privileges or immunities clause. The citizenship clause defines both federal and state citizenship, making them not separate as the majority in Slaughterhouse concludes, but one derivative of the other – state citizenship a necessary result of federal citizenship. Accordingly, all of the privileges or immunities one possesses as a federal citizen include the privileges or immunities one gains as a citizen of a state. Logically, the privileges or immunities of federal citizenship that are in addition to the privileges or immunities guaranteed by state citizenship must be determined. Had the Court decided to look to the origination of the Clause, which would be helpful as the Thirty-Ninth Congress indicated that the Fourteenth Amendment’s privileges or immunities clause “secured nothing beyond what was intended” by the initial use of the phrase in Article IV of the Constitution, the Court in Slaughterhouse would not have had to prescribe their own meaning to the phrase.


The Court in Slaughterhouse looks to Justice Washington’s decision in Corfield v. Coryell to determine the historic meaning of the privileges or immunities of federal citizenship, a reasonable action. But the Slaughterhouse majority misread both the holding in Corfield, and the meaning of “privileges or immunities”. Justice Washington describes the “privileges and immunities” mentioned in Article IV Section 2 of the U.S. Constitution as being “in their nature, fundamental; which belongs, of right, to the citizens of all free governments.” Justice Washington’s holding distinguishes these fundamental rights from the benefits of being a citizen of a particular state, and reflects the initial understanding the American colonists had of the phrase, which was codified in their respective colonial charters. Given this, along with the violations of the fundamental rights of African Americans at the state level that attracted federal protection, and the purpose of the Civil Rights Act of 1866, the inclusion of the privileges or immunities clause in the Fourteenth Amendment seems to be for the purpose of securing the fundamental rights protected by the clause’s initial use, and the civil rights mentioned in the 1866 Act. The Slaughterhouse majority does not conclude this meaning because their contortion of the Fourteenth Amendment’s citizenship clause led them to misread the Corfield holding – concluding incorrectly that the phrase “privileges or immunities” meant “always…the class of rights which the State governments were created to establish and secure” and do not include fundamental or civil rights.

The Slaughterhouse majority’s misreading would open the door to the doctrine of “substantive due process” and as a result, has brought a machete to intellectually honest constitutional law.

Case Basics


Court & Reporter NumberSupreme Court, 83 U.S. 36

Type(s) of Activism
  • Contorting Text
  • Nullifying Rights
Area(s) of law
  • Privileges and Immunities
  • Samuel F. Miller
  • Nathan Clifford
  • David Davis
  • William Strong
  • Ward Hunt
  • Noah Swayne
  • Stephen J. Field
  • Joseph P. Bradley
  • Salmon P. Chase