In a recent Harvard Law Review commentary, two well-known constitutional scholars called into question not only what Supreme Court cases are “canonized” in casebooks, but whether the “Court-centeredness” of our scholarship and teaching about constitutional law has led to an impoverishment of the discourse on justice. The authors document how “[c]ases become important to teach and remember because they serve as the icons (and demons) of an invented constitutional tradition” --a tradition that “comes into being at a particular point in history, and then regards itself as always having been there.” There is no better example of such an icon illustrating the canonization of “invented tradition” than the Slaughter-House Cases. More important, they represent the way in which, once accepted into legal orthodoxy, such icons can provide the foundation for a reduction in rights originally thought to be inherent in our most sacred historical and legal texts. Finally, the Slaughter-House Cases offer a point of departure for conceptualizing an alternative doctrinal framework with which to revise and expand the existing canons of constitutional law. Such a revision would at once be more faithful to the historical intent and inchoate promise of the Fourteenth Amendment and a more principled source for grounding fundamental human rights than existent equal protection and substantive due process doctrine. One approach to challenging the legacy of the Slaughter-House Cases is to borrow from a new methodology, much in vogue among historians, called “counterfactual history.” The use of this notion of alternative events is based on the premise that the understanding of history can be greatly enhanced by changing one significant fact and examining other outcomes. It is thus a way of “undoing the determinism that haunts our every conception of history” that can then lead us to question long-held assumptions by eliminating “hindsight bias.” You might well ask, why look backward as a way of thinking about future doctrinal developments in constitutional law? As someone who was trained in constitutional history long before I became a lawyer and, subsequently, a law school teacher, I am keenly aware that history informs our future choices as much as it reflects those made in the past. “Virtual history” --as this new methodology is sometimes called--allows the practitioner to transport herself or himself into a contemporaneous context of a chosen event and imagine a different outcome, another “reality.” The counterfactual doctrinal framework I propose is based on three premises: first, that the Fourteenth Amendment was this country's true “Never Again” formulation of basic human rights; second, that beginning with the Slaughter-House Cases, the Supreme Court took what was intended to be an affirmation of substantive, positive rights protected by national citizenship and interpreted it in such a way as to result in a crabbed, negative doctrine that pitted the rights of some individuals and groups against others; and, third, that there is no principled doctrinal approach today to equal protection jurisprudence (or its more suspect “poor relation,” substantive due process)--a fact that has been particularly devastating to women and minorities who are most vulnerable to legislative enactments which disproportionally burden them.
Jane L. Scarborough,
What If the Butchers in The Slaughter House Cases Had Won?: An Exercise in "Counterfactual" Doctrine,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol50/iss2/3