Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.
What are the practical changes for rights and liberties between SDP and the Privileges or Immunities Clause? All I am aware of is Justice Thomas's attempt to remove more and more constitutional protections.
Im a big proponent of tearing off the scab that is the slaughterhouse cases. Relying on P&I would at minimum automatically incorporate the entirety of the bill of rights to the States rather than requiring selective incorporation after a secondary "liberty" analysis. At minimum that would overturn precedent saying that grand juries arent required in the States and would put to bed questions about if the 3rd or 7th amendments are incorporated. This actually expands the bill of rights.
I dont have an exhaustive list of purported "rights" that were bootstrapped in through substantive due process but the most well known are:
Right to contract around most laws (largely abandoned in Carolene Products)
Right to send child to religious school (which the 1st probs protects anyway)
Right to teach child a foreign language (again 1st probs protects it)
Right of both marrieds and unmarrieds to use birth control
Right to abortion (now overturned)
Right to decide which relatives live in your house
Right to interracial or same sex marriage (which equal protection probs protects)
Freedom from excessive punitive damages (which is probs protected under 8th amdt)
Right to sodomy (which under the Oconnor concurrence in Lawrence v TX is probs partially protected under equal protection
So the only purported "rights" based on substantive due process that likely arent protected by a different clause in the constitution is birth control, equally applied sodomy bans, and certain zoning regs limiting distant relatives from cohabiting.
