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What If The Butchers In The Slaughter House Cases Had Won?: An Exercise In "Counterfactual" Doctrine, Jane L. Scarborough

Maine Law Review

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 …