Raw Judicial Power XI: The Slaughterhouse Cases (1873)

It should come as no surprise that following the Civil War Congress saw the necessity of overturning the Dred Scott decision. Language was carefully written into the 14th Amendment to preclude such an exercise of "raw judicial power" from ever again taking place.

What Congress did not take into account was the "the spirit of revolutionary change" that had "long been disturbing the nations of the world" noted a generation later by Pope Leo XIII. The abandonment of the absolutes of the natural law in favor of political expedience made the explicit statement of absolute principles in the Constitution something of a farce with the development of the concept of the "living Constitution." Orestes Brownson had noted this when he commented that the war had resulted in the abolition of slavery — and the ending of that disgrace was a very good thing — but on the grounds of political expedience, not the principles of natural law. One proponent of the expedient view of the Constitution went so far as to declare that,

". . . the theory that the Constitution is a written document is a legal fiction. The idea that it can be understood by a study of its language and the history of its past development is equally mythical. It is what the Government and the people who count in public affairs recognize and respect as such, what they think it is. More than this. It is not merely what it has been, or what it is today. It is always becoming something else and those who criticize it and the acts done under it, as well as those who praise, help to make it what it will be tomorrow." (Charles A. Beard and William Beard, The American Leviathan: The Republic in the Machine Age. New York: The Macmillan Company, 1930, 39.)

As far as Crosskey was concerned, the 14th Amendment was intended to counter such a view of the Constitution. The framers of the amendment, however, failed to take into account that the surrounding culture, the political goals of the Supreme Court, and the fact that the Supreme Court had managed to change its own role in a profound and significant manner ensured that the clear meaning of the amendment would not be how it was understood and applied. As soon as the opportunity presented itself, every effort would be made to nullify the 14th Amendment. This opportunity came with the "Slaughterhouse Cases," the decision on which also ensured that the "new things" noted by Leo XIII would pass "beyond the sphere of politics" and make their "influence felt in the cognate sphere of practical economics."

The effect of the 14th Amendment was to take away the powers the Supreme Court had managed to acquire since Marbury v. Madison (1803) — a correct decision that was later misused to expand "judicial review." The power of the Court, however obtained, reached its height with the Dred Scott case. It suffered a serious eclipse with the passage of the 14th Amendment. Consequently, as Crosskey saw it, the Court was not slow to act when the opportunity presented itself to nullify the 14th Amendment.

The opportunity came with what are collectively known as "the Slaughterhouse Cases." According to Crosskey, the Court used the Slaughterhouse Cases to bring about an effective abrogation of the 9th and 10th Amendments, and a partial abrogation of the 14th Amendment. This was to have serious consequences down to the present day, especially on the concept of private property and other individual natural rights, particularly life and liberty. As a result of the decision in the Slaughterhouse Cases, the Supreme Court gained immense power at the expense of both the Congress and the people. This is why the 14th Amendment is often cited in "landmark" cases such as Roe v. Wade.

The facts in the Slaughterhouse Cases are relatively straightforward. The slaughterhouses that served New Orleans were located about a mile and a half upstream of the city. Waste was simply dumped into the water. As a result, the city's drinking water was unfit for human consumption, and the city suffered from eleven cholera epidemics between 1832 and 1869. A New Orleans grand jury recommended that the slaughterhouses be moved downstream, but it lacked jurisdiction. Then, in 1869, the Louisiana legislature passed "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 Livestock Landing and Slaughter-House Company."

This seems simple enough, and the story is so related in popular sources, e.g., the Wikipedia. For the public good, all butchers operating in and around New Orleans would be required to use the facilities provided by the new corporation, be subject to inspection, and no individual or company would face discrimination in access to the facilities. The subsequent lawsuits by various individual butchers, companies, and associations thus seem, on the surface, to be an example of typical 19th century laissez faire capitalist assertion of property rights over human rights. As Crosskey related the story, however, additional details come to light:

"The state act there under attack had been passed by the 'carpet-bag' legislature of Louisiana, under 'a shallow pretence,' as Justice Stephen J. Field, of California, put it in his dissenting opinion, of enacting 'sanitary regulations' for the protection of the meat supply of the city of New Orleans. In actual fact, the act was one to incorporate seventeen favored citizens as the Crescent City Live-Stock Landing and Slaughter-House Company and to grant to them, in the corporate capacity thus conferred, a twenty-five-year monopoly of the business of maintaining stock-landings, stock-yards, and slaughter-houses, within an area of some twelve hundred square miles in and around the city in question. The sanitary regulations consisted merely of a stock-inspection provision and certain restrictions as to the areas in which the new company's facilities might be erected; but if the company could conduct its business subject to these simple regulations with safety to the public health, there was, as Justice Field persuasively observed, no reason why the individual butchers compelled by the act to hire the facilities of the defendants could not, with safety to the public, do the same. So, the sanitary excuse was a pretty transparent cover for a state-created monopoly; and because every such monopoly consists essentially in a giving to the monopolist of a specific protection which is denied to others, the fact that the Louisiana act was in plain violation of the Equal Protection Clause of the new amendment, under anything like a literal and straightforward reading, cannot very well be denied. In that sense, then, the act 'abridged' an 'immunity' belonging to the whole class of 'citizens of the United States' and was, accordingly, in violation, technically, of the Privileges and Immunities Clause of the amendment, as well."

The clear intention of the 14th Amendment was to secure basic natural rights and the same civil rights enjoyed by all other citizens to people who had previously been denied protection for those rights. Further, there was to be no denial of these rights in the future. What the Court did, however, was shift the ground from whether or not someone's or some group's natural or civil rights had been violated, to the "non issue" as to whether rights conferred by a state, or those conferred by the federal government were superior. In the process, the basis on which the Dred Scott decision had been rendered was egregiously misstated.

The presumed conflict between state and federal governments as the source of rights is why the Slaughterhouse Cases are considered pivotal in civil rights law — and why the Court's decision didn't even address the civil rights — inherent in each person, not delegated from the State! — that were violated. The Court did not, in fact, address the issue whether anyone's rights were violated under the Equal Protection Clause. Instead, "What they did deny was that the Equal Protection Clause, or any other provision of the Constitution applying to the states, had been violated."

The fact that there were four dissenting opinions did not alter the basic decision of the Court, or its future interpretation. As Crosskey related, the four dissenting justices disagreed with the majority that the privileges and immunities of U.S. citizens should be limited to those specifically enumerated in the Constitution. This point, manifest in the Constitution, was brought forcefully home to the majority, the language being extraordinarily inflammatory, the minority going so far as to accuse the majority of an unlawful purpose in promoting such an obviously unjust reading of the language of the Amendment.

Unfortunately, the dissenting justices then undermined their own position by confusing the meanings of the terms used, and thus the natural right to be an owner, with the legitimate role the State plays in defining what an owner may do with what he or she owns. The dissenting justices claimed that limitation of a right, in the sense of defining the proper exercise thereof, was tantamount to "abridgment" of that right, and that, consequently, as Crosskey explained, "the Privileges and Immunities Clause forbade the states to 'abridge' any of an indeterminate number of vague and indefinite 'privileges and immunities which of right belong[ed],' so the minority said, 'to the citizens of all free governments."

Further, the evidence suggests (as Crosskey related) that the minority justices were absolutely convinced that they were defining basic rights accurately. The fact that their analyses were directly at odds with the natural law basis of the Constitution, and that they were actually assisting the majority in changing the nature of what it means for something to be "owned" does nothing to alter their deep sincerity. It is a testament to the inherent honesty of the minority in the face of what they saw as an exercise of what would a century hence in Roe v. Wade be termed "raw judicial power" that years later, in 1892, Justice Field repudiated his earlier stand that, effectively, gave the federal government in the person of the Supreme Court the power to grant and revoke natural rights. As Crosskey related,

"'After much reflection,' Justice Field confessed, in dissent from the Court's decision [in the matter of O'Neil v. Vermont], 'I think the definition given at one time before this court by a distinguished advocate — John Randolph Tucker, of Virginia — is correct, that the privileges and immunities of citizens of the United States are such as have their recognition in or guaranty from the Constitution of the United States'."

In other words, the State, whether in the person of local, state, or federal governments, does not grant rights. The State can only recognize or guarantee rights, not create them.

In light of this confusion, the majority justices in Slaughterhouse could, according to Crosskey, easily have dealt with this issue by explaining that they were using the term "abridge" in the sense of proper limitation, not "abridge" in the sense of violation. The majority did not do so, suggesting that they knew full well they were inserting an unacceptable degree of ambiguity into the interpretation of the law so as to increase the power of the Court, and render the 14th Amendment meaningless. As Crosskey concluded his discussion on this point, "And all this being true, the fact that the majority chose, as we shall see, rather to be ambiguous and evasive upon this point, strongly suggests that the minority Justices knew whereof they spoke; a conclusion well confirmed by other evidence." In summing up, Crosskey concluded,

"So, the Court's opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe. And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion. So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely."

Thus, in a baffling paradox, the Slaughterhouse Cases should have been a simple case of defining the legitimate exercise of private property within a system in which the underlying right itself (the right be an owner) remained untouched. Instead, the situation became a pawn in an effort to increase the power of the Court at the expense of basic human rights held by the people, and those delegated by the people to the other branches of government, culminating in 1973 with the decision in Roe v. Wade.

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