Slaughterhouse Cases 16 Wallace 36 (1873)
SLAUGHTERHOUSE CASES 16 Wallace 36 (1873)
Most histories of the Constitution begin consideration of the judicial interpretation of the thirteenth and fourteenth amendments with the Slaughterhouse decision of 1873. The decision is, to be sure, of vast significance. Justices joseph p. bradley and stephen j. field, dissenting, expressed embryonic doctrines of freedom of contract and substantive due process that were to dominate American jurisprudence for two generations.
In 1869, Louisiana, ostensibly as a public health measure, incorporated the Crescent City Stock Landing and Slaughterhouse Company and granted it a monopoly of licensed butchering in New Orleans. Butchers not parties to the lucrative arrangement, after failing to crack the monopoly in the state courts, employed as counsel, in an appeal to the federal courts, former Supreme Court Justice john a. campbell, who more recently had been a Confederate assistant secretary of war. Campbell argued before the Supreme Court that the excluded butchers had been deprived of their livelihoods by the state's deliberate discrimination, although Louisiana had disguised the corrupt monopoly as a health measure. Therefore the disputed statute violated the Thirteenth Amendment's ban on involuntary servitude, the 1866 civilrightsact's enforcements of that ban, and the Fourteenth Amendment's guarantees of equal protection of the laws, and due process.
Among prominent counsel for the state, Senator matthew hale carpenter responded to Campbell's innovative brief. Carpenter easily assembled case law that sustained state restrictions on private economic relationships. He insisted that the state police power amply undergirded the Louisiana statute. No federal constitutional question existed, Carpenter asserted. Both the Thirteenth and the Fourteenth Amendments were irrelevant to the litigants' rights and remedies. And, he prophesied, the federal system would be virtually revolutionized if the Court accepted Campbell's notions and legitimized a federal interest in individuals' claims to be exempt from state regulation.
Speaking through Justice samuel f. miller, a majority of the Court was unready to accept Campbell's view that federal guarantees to individuals extended to trades (although, in the test oath cases, 1867, the Court had extended other federal guarantees to lawyers, ministers, and teachers). Instead, having accepted Carpenter's arguments, Miller reviewed the tradition of judicial support for state determination of ways to meet police power responsibilities. Miller denied that exclusion from butchering deprived the appellants of federally protected rights to freedom, privileges and immunities, equal protection, or due process; the "one pervading purpose" of the post-war amendments, he said, was to liberate black slaves, not to enlarge whites' rights. The monopoly created by the state law could not be perceived as imposing servitude; the Thirteenth Amendment was irrelevant as a protection for livelihoods.
Turning to the Fourteenth Amendment, Miller separated federal from state privileges and immunities. He assigned to the states the definition of ordinary marketplace relationships essential to the vast majority of people. More important, he assigned to state privileges and immunities all basic civil liberties and rights, excluding them from federal protection. Miller's sweeping interpretation relegated everyone, including Negroes, who had assumed that the Fourteenth Amendment had assigned the federal governmentthe role of "guardian democracy" over state-defined civil rights, to the state governments for effective protection. The national government could protect only the few privileges and immunities of national citizenship: the right to travel, access to Washington, d. c. , freedom of assembly and petition, and habeas corpus. Miller and the majority ignored contemporary evidence that many of the framers of both amendments and of the 1866 Civil Rights Act did perceive federally protectable privileges and immunities in broad terms; did assign to federal courts the duty to protect those rights; did envision national civil rights as the essential bridge connecting individuals and states to the nation in a more perfect union. And the majority overlooked earlier contrary case law that spoke directly to the point of the amendments as requirements for federal protection against both state and private discriminations: In re Turner (1867) and blyew v. united states (1872).
Ignoring also prewar uses of due process in dred scott v. sandford (1857) and in law of the land clauses in state constitutions, and shrugging off the equal protection argument Campbell had advanced for the appellants, Miller reiterated his position that the postwar amendments protected only blacks against state action. The federal protection the Court allowed was minimal and virtually irrelevant to the needs of freedmen, and, for all Americans, left the protection of rights fundamentally unchanged from the prewar condition.
Dissenting, Justices Joseph P. Bradley and Stephen J. Field dredged up Justice samuel chase's 1798 opinion in calder v. bull and that of Justice bushrod washington in his much-quoted 1823 circuit opinion in corfield v. coryell, plus the augmented emphases on judicial discretion in a long line of decisions. Bradley emphasized the Fourteenth Amendment's due process clause. Advancing beyond the views of Chief Justice roger b. taney in Dred Scott, he justified judicial intervention to defend substantive due process rights and insisted that a right to choose a calling is a property, a fundamental right that no state might demean casually. That right was the base for all liberty. The federal courts must repel any state attack on that right, even though the attack might be disguised as a health measure under police powers.
Field argued that the butchering monopoly created servitudes forbidden by the Thirteenth Amendment, but he concentrated on the Fourteenth's privileges and immunities clause. It embraced all the fundamental rights belonging to free men. The national Constitution and laws affirmed those rights. Arbitrary state inhibitions on access to a trade or professions demeaned national rights. Field conceded that states were free to exercise their police powers, even to regulate occupations. But state regulations must apply equally to all citizens who met the standards of the state regulations.
Later, jurists less respectful than Field of state-based federalism were to cut his Slaughterhouse dissent free of its privileges and immunities moorings. Combining his views with Bradley's emphases on the broad effect of the Fourteenth Amendment, later jurists and legal commentators were to transform them into doctrines of freedom of contract and substantive due process. Those doctrines, which were to reign until the twentieth century was well advanced, constrained needful state actions in numerous areas of life and labor.
Harold M. Hyman
Beth, Loren P. 1963 The Slaughter-House Cases—Revisited, Louisiana Law Review 23:487–505.
Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development 1835–1875. Pages 472–483. New York: Harper & Row.