Upon seeing Niagara Falls for the first time, Oscar Wilde reportedly remarked that it "would be more impressive if it flowed the other way." I have a similar reaction to a series of narrow Supreme Court interpretations of the fourteenth amendment, beginning with the Slaughter-House Cases, decided in 1872, and extending to the 1989 decisions in Webster v. Reproductive Health Services and DeShaney v. Winnebago County Department of Social Services. In Slaughter-House the Court interpreted the privileges or immunities clause of the fourteenth amendment as merely protecting interests other federal laws already protected, while recently the Court interpreted the due process clause of the fourteenth amendment in DeShaney as not imposing affirmative duties on the states to protect fundamental rights against private violence and in Webster as not requiring the states to expend any resources to aid women desiring abortions. The link between these cases is the Court's reluctance to define fully and enforce fundamental rights against state and private action. This reluctance has reinforced the view that the Constitution in general, and the due process clause of the fourteenth amendment in particular, primarily provide negative rights,which require the government to refrain from certain conduct, as opposed to positive rights, which impose affirmative duties on the government to take actions or expend resources to meet the needs of certain citizens.
Michael J. Gerhardt,
The Ripple Effects of Slaughter-House: A Critique of a Negative Rights View of the Constitution,
43 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss2/3