If it is a right, why is it merely protected by due process? Thomas Mitchell, Editor

Thomas Mitchell said:

Thomas lambasted the plurality for its weak stance.

“All of this is a legal fiction,” he declared. “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point.”

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CATO said:

Unfortunately, the Privileges or Immunities Clause was strangled in its crib by a recalcitrant Reconstruction-era Supreme Court that refused to acknowledge the sea change in federal-state relations after the Civil War. In a set of 1873 cases on the regulation of Louisiana abattoirs — appropriately known as the Slaughterhouse Cases — the Court virtually erased the Privileges or Immunities Clause, reducing its contents to a risible set of federal rights.

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