The Slaughter-House Cases
By Charles A. Lofgren, Professor, Claremont McKenna College
I. FACTUAL BACKGROUND
In March of 1869, the Louisiana legislature passed Act 118, "An Act to Protect the Health of the City of New Orleans, to Locate the Stock-Landings and Slaughter-houses, and to Incorporate the Crescent City Live-Stock Landing and Slaughter-House Company." This forbade slaughtering in New Orleans and the parishes of Orleans, Jefferson, and St. Bernard - an area of over 1100 square miles - except within a designated area below the City of New Orleans. There the Crescent City Company was given an exclusive 25-year grant to build and operate "a grand slaughterhouse of sufficient capacity to accommodate all butchers," along with livestock landing and holding facilities. Independent butchers using the slaughterhouse and other facilities were required to pay prescribed fees, and the company received the non-edible parts of any animals slaughtered by the independents.
Corruption probably greased the law's passage. Of the 20,000 shares of stock authorized by the act of incorporation, the seventeen incorporators promised 2,000 to three assistants to the state governor, to insure his approval - and were chagrined to learn that he had signed the bill without requiring the gift. One participant commented that they "had been great asses to make the donation." Along the way, legislators had similarly received pledges of stock, along with interest-free loans. For their part, the legislators were quite open about what was happening. One member could "see no reason," as he put it, "for restricting the profits of this great enterprise to the gentleman named in the bill. The pages of this House, getting but three dollars a day are unable to support their families." Later disputes among the incorporators led to litigation disclosing the inner workings of what one judge labeled "a wholesale bribery concern." On the other hand, bribery was never proved criminally, and one recent study argues that the incorporators simply engaged in "nothing more than skillful lobbying," in an age when paid lobbying itself smacked of corruption.
II. THE SUPREME COURT DECISION AND OPINIONS.
The United States Supreme Court's decision upholding Act 118 came down on April 14, 1873. This followed a reargument in February that had been necessitated by a four-to-four split after the cases were first argued in January 1872. In the meantime, Justice Samuel Nelson, who had missed the first argument because of ill health, had resigned and been replaced by Ward Hunt. The Court in fact postponed reargument until Justice Hunt took his seat,
Throughout, both sides were well represented. With sweeping arguments about the revolutionary scope of both the Thirteenth and Fourteenth Amendments, former Justice Campbell clearly lived up to the adage "Leave it to God and Mr. Campbell." Walton Hamilton's classic article conveys the flavor of the presentations:
In [Campbell's] briefs, there is nothing of clean-cut concept, of rule of law chiseled with neatness and precision, of sweep of syllogism to its inevitable therefore. They are clothed in a rhetoric alien to the legal persuasion of today. But history is here-its pages are filled with the conditions of the working classes in America, in England and Scotland, in France and Prussia. Learning is here-there is hardly a page not adorned with its apt quotation from some writer on government, jurisprudence, economics, or philosophy. Authority is here-citations of cases are alternated with statements from Turgot and Guizot; Buckle and de Tocqueville; Hallam, Macaully, and G.C. Lewis; Mr. Jefferson and Adam Smith; John C. Calhoun, Mr. Justice Curtis, and Cooley on Constitutional Limitations. A sentence [appears] from the Wealth of Nations which makes man's right to his trade both a liberty and a property. Even the arts have their dialectical due in an occasional line of poetry or a rhymed couplet of a Negro minstrel.
The books were at hand-and a skill in their use-to serve the cause of the butchers. The task was to mold a medley of materials into a legal entity. Mr. Campbell had only foresight-not the hindsight of a later generation. His endeavor is marked, not with the delicate articulation of the codifier, but by the daring of the adventurer and the fumbling of the pioneer.He abandoned the older parts of the Constitution, whose well-litigated clauses did not point his way, and took his stand upon an article which as yet had drawn forth no judicial utterance.
Campbell's co-counsel J.Q.A. Fellows surveyed the intent of the amendments and related legislation as disclosed in congressional debates.
On the other side, counsel for Crescent City denied the butchers' charge of monopoly by explaining how Act 118 allowed the independents to use the slaughterhouse facilities. They also stressed the sweep of the police power and the limited impact of the reconstruction amendments on the federal system. Campbell's interpretation, they contended, indeed would have the revolutionary consequence of "depriv[ing] the [state] legislatures and state courts from regulating and settling their internal affairs."
Justice Samuel F. Miller, speaking for the Court, largely accepted Crescent City's position. He denied that Act 118 deprived the independent butchers of their right to labor or pursue their business, and in this regard quite accurately described how the operators of the new slaughtering facilities were required to open them to all who paid the requisite fees. The prohibition against other slaughtering facilities in the designated areas and against additional livestock landing facilities or stockyards were an efficient means of accomplishing the state legislature's legitimate police-power objective of protecting public health. Overall, he interpreted the law's restrictions as falling within the police power as previously by well-established authorities. Chancellor James Kent of New York, Chief Justice Lemuel Shaw of Massachusetts, Chief Justice Isaac F. Redfield of Vermont, and Chief Justice John Marshall were all drawn on in this regard. The only question was whether the new amendments narrowed the police power of the states.
After stating the provisions of the Thirteenth Amendment and Section One of the Fourteenth, Miller explained the task:
This court is thus called upon for the first time to give construction to these articles.
We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States and of the several states to each other, and to the citizens of the states, and of the United States, have been before this court during the official life of any of its present members. We have given every opportunity for a full hearing at the bar; we have discussed it freely and compared views among ourselves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that we have neither the inclination nor the right to go.
Miller proceeded to construe narrowly the Thirteenth Amendment's ban on slavery and involuntary servitude. Its major focus, he concluded, was chattel slavery and comparable forms of service. To find within its prohibition the varieties of servitude that "a microscopic search" had enabled Campbell to discover in modern history "requires an effort, say the least of it," opined Miller.
Miller's major focus was the butchers' Fourteenth Amendment argument. Under his gaze, its first section required the same contextualizing as the Thirteenth Amendment: its purpose related to the grievances of the black race as much as if, like the Fifteenth, it had spoken explicitly of race and servitude. Miller nonetheless moved to the butcher's claims, and particularly to the claim that the right of following a lawful occupation was a privilege or immunity of citizens of the United States. Here he developed a crucial distinction. Without denying that the right in question existed, he argued that it was a right of state citizenship, not national citizenship. This distinction he derived from juxtaposing the first and second clauses of Section One. The first clause states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." The second clause forbids only state abridgment of the privileges or immunities of citizens of the United States.
His reasoning was as follows:
It is a little remarkable, if this clause was intended as a protection to the citizens of a state against the legislative power of his own state, that the words "citizen of the state" should be left out when it is so carefully used, and used in contradistinction to "citizens of the United States" in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.
He went on to explain that the opposite conclusion-that the privileges or immunities clause brought all the rights of citizenship under federal protection-would work a revolution in federal-state relations that surely the nation had never intended in adopting the Amendment.
Miller gave the due process and equal protection clauses scant attention. Indeed, he remarked that argument drawing on them "has not been much pressed in these cases," and claimed that no existing interpretation of due process supported the butchers' position. As for the equal protection clause, he came to the verge of stating it was aimed solely at racially discriminatory legislation; and even then remedies would depend on congressional use of its enforcement power under Section Five of the Amendment.
Four members of the Court dissented-Chief Justice Chase and Justices Field, Bradley, and Swayne. All but Chase filed opinions. Scholars have disagreed on which of the dissenting opinions staked out the most radical position. In the main, however, their arguments are complementary. Both Bradley and Swayne (along with the Chief Justice) specifically concurred in Field's dissent, and Swayne concurred in Bradley's.
Regarding the Thirteenth Amendment, Field acknowledged "the great force" of Justice Campbell's argument about the range of servitudes that it abolished, including the placing of people into castes "to subserve the power, pride, avarice, or vengeance of others." He added that the argument found support in Congress's passage of the Civil Rights Act of 1866 at a time when only the Thirteenth Amendment was in force to give the measure a constitutional base. When introducing the bill in the Senate, Senator Lyman Trumbull had indicated that it "was intended to give effect to the declaration of the Amendment, and to secure to all persons in the United States practical freedom." But Field declined to rest his objections on the Thirteenth Amendment, because the Fourteenth so clearly covered the cases before the Court.
Field's greater emphasis was Miller's Fourteenth Amendment argument. In particular, he bore in on the conclusion Miller drew about the rights attaching to state and national citizenship. Clearly rejecting the view that the citizenship clause was designed to create two categories of citizenship with respect to the protection of privileges and immunities, he described its purpose as remedying uncertainties about the relationship of state and national citizenship. Previously, substantial doubt existed whether United States citizenship existed independent of state citizenship. In his well-regarded dissent in Dred Scott, for example, Justice Benjamin R. Curtis had explained that for native-born persons United States citizenship derived from state citizenship. The majority in Dred Scott had held, however, that states could not confer United States citizenship on blacks by granting state citizenship. But, explained Field, Section One's citizenship clause "change[d] the whole subject, and remove[d] it from the region of discussion and doubt." United States citizenship was now primary and "[a] citizen of a state [was] only a citizen of the United States residing in that state."
With this new locus of citizenship came new protections. "The fundamental rights, privileges, and immunities which belong to [a person] as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any state." But if, as the majority held, the privileges or immunities gave federal protection to rights previously designated as rights of United States citizenship, "it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage." Under the Supremacy Clause, states already were forbidden from interfering with such privileges and immunities.
Field then examined authorities and found that among the extensive rights protected by Section One's privileges or immunities clause was the pursuit of a lawful occupation. Police regulations, which "[t]he state may prescribe for every pursuit and calling of life as will promote the public health, secure the good order and advance the prosperity of society," were legitimate only when they encompassed restrictions "imposed equally upon all others of the same age, sex, and condition." "[G]rants of exclusive privileges, such as are made by the act in question," he concluded, "are opposed to the whole theory of free government, and it requires no bill of rights to render them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained except by just, equal and impartial laws."
Justice Bradley amplified Field's argument with respect to both the content of the rights protected by the privileges or immunities clause, and the unreasonableness of the monopoly grant in Act 118. If Field had left the implication that mere equality of treatment with legitimately defined classes of citizens was the test of conformity to the clause, Bradley laid out a number of absolute rights, a position of course anticipated by his 1870 opinion on circuit in New Orleans. On the unreasonableness of the Louisiana law, he underscored how its provisions clearly exceeded the requirements of police legislation.
Bradley concluded with an examination of the intended scope of the amendment by examining the "mischief" it was designed to remedy. The mischief having been substantial, he argued, the amendment was broad. But, contrary to Miller's assessment, this recognition did not carry with it the prospect of continual federal meddling within the states. "Very little, if any, legislation on the part of Congress would be required," for the amendment "would execute itself." Nor, after the federal judiciary explained its meaning, would the work of the federal courts increase significantly, because "the privileges and immunities protected are only those fundamental ones which belong to every citizen . Besides, the recognized existence of the law would prevent its frequent violation."
Swayne added his own gloss on the Fourteenth Amendment's first section. While he concurred in both Field's dissent and Bradley's, his dissent nonetheless took an arguably narrower view of the privileges or immunities clause, but unlike Field and Bradley, he explored more fully the due process and equal protection clauses with their "more simple and comprehensive terms," as he characterized them. Here is his assessment:
Life, liberty, and property are forbidden to be taken "without due process of law," and "equal protection of the laws," is guaranteed to all. Life is the gift of God, and the right to preserve it is the most sacred of the rights of man. Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies to a large extent at the foundation of most other forms of property, and of all solid individual and national prosperity. "Due process of law" is the application of the law as it exists in the fair and regular course of administrative procedure. The "equal protection of the laws" places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness.
In addition, Swayne turned to the purposes of the Amendment, defending a broad interpretation by arguing that in the course of "the late Civil War[,] [t]he public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members." The majority's assessment, he charged, "turn[ed], as it were, what was meant for bread into a stone."