30. What If the Court Had Ruled Differently?
The lost power of the 14th Amendment
In our recent posts, we’ve seen how the Supreme Court relied on the 14th Amendment’s Due Process and Equal Protection Clauses to expand constitutional protections for LGBTQ rights in Romer, Lawrence, and Obergefell.
But what if the Court had taken a different path from the start? What if, instead of gradually building these protections through liberty and equality, it had embraced a more powerful part of the 14th Amendment?
That brings us to the Privileges or Immunities Clause.
Ratified in 1868 as part of the effort to reconstruct the nation after the Civil War, the 14th Amendment was meant to reshape the relationship between states and individuals, especially to protect the rights of newly freed Black Americans. Section 1 includes several bold guarantees (due process, equal protection), but it begins with a clause that’s often overlooked:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”
So what are these “privileges or immunities”? And why did they matter so much in 1873?
What Was at Stake
The first major cases to interpret the 14th Amendment were The Slaughter-House Cases (a group of consolidated cases). Here, the Supreme Court had a chance to give the Privileges or Immunities Clause real force. Instead, it effectively hollowed it out.
The case arose after Louisiana passed a law giving a single company a monopoly over slaughterhouse operations in New Orleans. Multiple butchers filed lawsuits, arguing that the law violated their right to earn a living, which they framed as a core aspect of economic liberty. If that phrase rings a bell, it should: economic liberty would later become a major theme in Lochner-era cases, but here it emerged in a new post-war constitutional context. To make this claim, the butchers pointed to the Privileges or Immunities Clause.
The Court disagreed.
In a 5–4 decision, the majority held that the Privileges or Immunities Clause protected only a narrow set of rights tied to federal citizenship—like accessing navigable waters, petitioning Congress, or seeking protection abroad. It did not, the Court said, apply to broader civil or economic rights, which remained under state control.
The result? A clause that had the potential to anchor strong protections for individual rights was reduced to a constitutional afterthought. And because of that decision, courts would largely ignore the Privileges or Immunities Clause for the next century, turning instead to due process and equal protection to fill the gap.
The Decision That Changed Everything
Writing for the majority in Slaughter-House, Justice Samuel Miller made a decisive move. When he held that the Privileges or Immunities Clause only protected a narrow set of rights tied to national citizenship, his reasoning was rooted in a deep fear: that a broader interpretation would transform the Supreme Court into a “perpetual censor” of every state law, with the federal government second-guessing state decisions on everything from labor to licensing. He believed the 14th Amendment was not meant to fundamentally reorder American federalism.
But that one decision to cabin the clause so tightly had enormous consequences.
By slicing the clause down to a sliver, the Court left Americans vulnerable to state-level civil rights violations—at the very moment when Southern states were beginning to reassert white dominance through Black Codes and other discriminatory laws. What could have been a powerful constitutional shield became a dead letter.
What Might Have Been?
Now imagine if the Court had gone the other way.
In dissent, Justices Stephen Field and Joseph Bradley warned that the majority’s narrow reading of the clause would neuter the 14th Amendment’s protective purpose. They argued for a more expansive interpretation, one that saw the right to earn a living, to engage in lawful trades, and to enjoy civil rights as “privileges” of citizenship. For Field and Bradley, the 14th Amendment was not just about federal ports and passports, it was about safeguarding liberty from state oppression.
If their view had prevailed, the Reconstruction Amendments could have offered meaningful protection to freed Black citizens, immigrants, and poor laborers decades before the civil rights movement. The federal courts might have played a more active role in striking down state laws that entrenched racial and economic hierarchies.
Instead, that road was closed.
Over the next several decades, the Court would gradually revive some protections under the Due Process Clause, and later under Equal Protection, but always cautiously, case by case, and often inconsistently. By the time the Court struck down discriminatory marriage laws in Loving v. Virginia (1967), nearly a century had passed since Slaughter-House.
Historical note:
Slaughter-House (1873) gutted Privileges or Immunities, pushing economic liberty claims into substantive due process, which fueled the Lochner era (1905-1937) until the New Deal Court abandoned it.
What if the Court had not hollowed out the Privileges or Immunities Clause, and liberty and equality had instead been rooted in this explicit protection against state abridgment of citizens’ rights?