Monday, January 27, 2014

“Raw Judicial Power” III: Slaughterhouse, 1873


The United States Congress enacted two “Reconstruction Amendments” after the Civil War.  The first of these, the 13th, abolished chattel slavery, that is, human beings owned as private property by other human beings.  (If you read the amendment carefully, you’ll see that it didn’t abolish slavery altogether. People convicted of crimes can still lose their rights; a slave is legally defined as a human being without rights.)



Dred Scott
The second of the “Reconstruction Amendments” was the 14th, which most constitutional scholars agree was adopted in part to overturn the Supreme Court’s decision in Scott v. Sandford.  William Crosskey noted that there is nothing in the 14th Amendment as it related to the recognition of rights as inhering in the human person that wasn’t already in other parts of the Constitution.  So why was it important to adopt what amounts to a redundant amendment?

By adopting the 14th Amendment, Congress seemed to be trying to send the Supreme Court a message.  By playing word games with the Constitution in the Dred Scott case, not only had the Court shifted the basis of the United States government from people to the State, it did something even more terrible, as least as far as Congress was concerned: it usurped some of the powers of Congress.

Nor was the Supreme Court the only target of the wrath of Congress.  During the Civil War the executive, that is, the president, had assumed sweeping emergency powers.  These were a bit harder to get back, especially since Lincoln was now a martyr.

What made it virtually impossible for Congress to get back the power taken by the presidency was the fact that instead of using legislative action and its power over the purse strings to rein in executive power, it took what it thought was the easy way out, and tried to impeach President Johnson on specious grounds.  The failure of the effort, and its obvious vindictiveness, made any future attempts to check the power of the president pretty much a no-go.

For its part, the Supreme Court was able to take back the power it had gained rather quickly.  In 1868 a “carpetbag” legislature in Louisiana passed an ordinance ostensibly to enforce sanitary regulations on New Orleans to stop the recurrent cholera epidemics that plagued the city.  The city’s slaughterhouses were upstream, and the offal polluted the water supply.

Governor Henry C. Warmoth
The ordinance required that butchers move their operations downstream.  This was not a problem, and the butchers complied.  Unfortunately, in an effort to make a little money on the project, Governor Henry C. Warmoth, “a shrewd, avaricious and unscrupulous man,” (“The Louisiana Thieves,” New Orleans Commercial Bulletin, Monday, August 8, 1870) had the legislature establish a monopoly for a friend of his, C. A. Weed, the “Crescent City Live-Stock Landing and Slaughter-House Company.”  After a series of events that sound more like Chicago in the 1920s, the butchers’ cases were bundled and appealed to the Supreme Court.

In an exercise of what can only be described as “raw judicial power,” the Supreme Court dodged the issue of whether rights reside by nature in each human being and are granted to the State, or whether rights inhere in the State and are granted to the people.  The Court simply assumed that rights are granted by the State, and the arguments focused on whether the state or the federal government was the right-grantor, not whether rights had been violated.

Justice Stephen Johnson Field
The opinion, which was that the butchers’ property rights had somehow not been violated by the state of Louisiana by forcing them to use the state-established monopoly, was so vaguely worded as to make the 14th Amendment, in the words of dissenting Justice Stephen Johnson Field of California, a “vain and idle enactment,” i.e., a meaningless noise, useful only for justifying whatever the Court wanted to do.

The cleverness of the decision (or, as Crosskey put it, the craftiness) was, not to put too fine a point on it, incredible.  By claiming that the state of Louisiana had not violated the rights of the butchers, the Supreme Court seemed to be upholding state sovereignty.  At the same time, it implied that the jurisdiction of the state was a “gift” of the federal government, and only valid with the Court’s sanction.  This meant that the federal government was really supreme . . . but only if the Supreme Court said so.  The rights of the butchers who had sued on the basis that their rights were being violated were not really an issue.  As 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 [i.e., the Fourteenth Amendment] completely.” (William Crosskey, Politics and the Constitution in the History of the United States. Chicago, Illinois: The University of Chicago Press, 1953, 1130.)

Years later, Justice Field had the courage to declare that both the majority and the minority had been wrong.  Rights are inherent in each human being, not the State in any form.  The whole argument in the Slaughterhouse Cases, i.e., whether the rights of the federal government or the state government are superior, was a diversion away from the real issue of the sovereignty of the human person over that of the State.  As Crosskey related,

John Randolph Tucker
“After much reflection,” Justice Field confessed, in dissent from the Court’s decision [in the matter of O’Neil v. Vermont, 144 U.S. 323 (1892)], “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.” (Crosskey, Politics and the Constitution, op. cit., 1124.)

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 or grant them.  In its decision in Slaughterhouse that nullified this theory, the U.S. Supreme Court secured the foundation for the exercise of what amounts to supreme legislative as well as judicial power.

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