Slaughter-House Cases, 83 U.S. 36 (1873) (a consolidation of three law suits) was the first test of the relatively new Fourteenth Amendment to the Constitution (ratified in 1870). This opinion is viewed as pivotal since it narrowly construed Section 1 of the Fourteenth Amendment to protect only “privileges or immunities” conferred by virtue of citizenship of the United States but not those conferred through state citizenship, a distinction that persists to this day. Moreover, some constitutional scholars (e.g. the eminent Charles L. Black of Yale) blame the opinion for setting back the cause of human and civil rights by eviscerating an important clause of the Fourteenth Amendment and forcing the Supreme Court to make some strained interpretations of other clauses in order to effect rational justice and promulgate ordered liberty.
The Fourteenth Amendment, Section 1, reads in full: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The cases were brought by the butchers of New Orleans to invalidate a Louisiana statute that: limited the places in which animals could be slaughtered for food; granted a monopoly to a single private company to manage and operate slaughterhouses; and required butchers to pay a fee to that company to engage in their trade of slaughtering animals and preparing meat for human consumption. Of the 300-some suits that were originally filed, three were consolidated and made it to the U.S. Supreme Court.
The butchers contended that the statute violated the Thirteenth Amendment by imposing “involuntary servitude” on them, and violated the Fourteenth Amendment by abridging “privileges and immunities,” denying “equal protection of the laws,” and depriving them of “liberty and property without due process of law.” The cases were disposed in a single opinion by Justice Samuel F. Miller, writing for a majority of 5-4.
The State of Louisiana argued that the rationale for the statute was to protect public health by confining a noxious activity to limited places, but most modern economists would view it as legalized monopoly created by a corrupt legislature to benefit a few well connected cronies of legislators.
Justice Miller pointed out that the statute did not prevent butchers from plying their trade: “It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so to slaughter in their houses, and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and to pay a reasonable compensation for the use of the accommodations furnished him at that place.”
Miller saw the legislation as an exercise of the “police power” of the state, a power that was “incapable of any very exact definition or limitation,” but under which “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State.”
The plaintiffs contended that the state exceeded its power by conferring the police power on a private company. The Court rejected that argument, saying, “If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate.” In other words, states had the power to designate individuals to enrich themselves by performing functions of the state– unless of course that that power was circumscribed by one of the then new (13th through 15th) amendments.
The Court’s reasoning, rather than its somewhat limited holding, accounts for the historical significance of these cases.
The Court dismissed the plaintiffs’ Thirteenth Amendment argument [“involuntary servitude”] on a sound historical analysis. The Thirteenth Amendment was directed at abolishing slavery and practices close to slavery, and certainly did not insulate New Orleans’ butchers from limited regulation of their trade.
The Court also paid short shrift to the plaintiffs’ due process and equal protection arguments brought under the Fourteenth Amendment.
The due process language had been around since the Fifth Amendment [where it applies to the federal government, not to the states] and “it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.”
As to the equal protection clause, Miller opined, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”
Much of the opinion was devoted to the analysis of the “privileges and immunities” clause. Miller noted that the 14th Amendment distinguished between citizenship of a state and citizenship of the United States. He then observed that the amendment expressly applied only to the privileges and immunities arising from citizenship in the United States. From this he concluded that the amendment did not prevent states from abridging privileges and immunities arising from citizenship of the state as opposed to citizenship of the United States.
The distinction was crucial because Miller opined that the privileges and immunities arising from state citizenship were the really important ones, but they were not protected by the amendment! The state privileges were “more tedious than difficult to enumerate.” They were “all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.”
But if these essential rights were not protected from state encroachment, what rights were protected? Miller listed a few: “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions…free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.” Others included “the care and protection of the Federal government over…life, liberty, and property when on the high seas or within the jurisdiction of a foreign government….The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus….The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State…[and the right to] become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.”
But the rights asserted by the plaintiff butcher in these cases did not fit within those national rights, and hence were unprotected by the amendment. Miller’s concern seems to have been that to hold otherwise, the Supreme Court would find itself “a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”
The famous dissent by Justice Stephen Field began by saying that the Louisiana statute went well beyond what was necessary to protect the citizens from the unhealthy aspects of operating slaughterhouses, and thus was not merely an exercise of the state’s police power. Characterizing the true content of the statute, he said, “The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions…. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld.”
He went on to say, “The question presented is, therefore, one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment, the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it.”
Justice Field pointed out that “The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.” He cogently argued that the amendment would have been meaningless if it protected only the purely national rights described by the majority, which under the Supremacy Clause of Article VI were beyond the power of the states to abridge anyway.
The precedential history of the Slaughterhouse Cases is replete with irony.
First, despite Justice Miller’s concern that a different interpretation would render the Court a “perpetual censor” of state legislation, the Court voluntarily took on such a role thirty-two years later through its “substantive due process” doctrine. (Cf. Lochner v. New York, 198 U.S. 45 (1905) and numerous other substantive due process cases.) That role was abandoned, but only as far as economic regulation in 1937 with West Coast Hotel v. Parrish, 300 U.S. 379. (See our analysis of Lochner and our analysis of West Coast Hotel.) The Court continued to apply substantive due process to the right to use contraceptives, but its rationales were often hard to justify. For example, in Griswold, the contraceptives case, it spoke of “emanations” and “penumbras” of the amendment rather than simple guaranteed “privileges and immunities.”
Second, by effectively nullifying the Privileges and Immunities Clause, federal power to protect civil liberties was limited. Liberals were forced to turn to other legal theories to protect civil rights. The Warren Court of the 1950 and 1960s turned to another 14th Amendment provision: the Due Process Clause. This allowed the Court to avoid the precedent of Slaughterhouse Cases.
I think Justice Miller’s court would have been appalled if it knew its rationale would become a shield for Jim Crow legislation. As to the very purpose of the 14th Amendment, the opinion states, “The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion … developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government were laws which imposed upon the colored race onerous disabilities and burdens and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.”
A final irony of Slaughterhouse cases is that a movement appears to be under foot to reenergize the “privileges and immunities” clause. An unusual coalition of liberals and conservatives consider the clause to be a means of enhancing civil rights [liberals] and limiting gun control [conservatives].