AS A RESULT OF THE CIVIL WAR, Congress proposed and the states ratified three amendments to the Constitution, sometimes known as the Reconstruction or Civil War Amendments. The Thirteenth Amendment, ratified in 1865, did away with slavery and involuntary servitude, the Fourteenth (1868) defined citizenship and its privileges, while the Fifteenth (1870) gave the former slaves the right to vote. The Thirteenth Amendment, enforced as it were by the results of the Civil War, proved immediately effective, and the institution of legalized slavery on the basis of race disappeared from the Union. Eventually the Fourteenth and Fifteenth Amendments would be the constitutional basis for the great civil rights revolution in the mid-twentieth century.
In the decade following the South’s surrender at Appomattox, however, no one could be sure exactly what the amendments actually meant. Later, scholars and activists searched the records of the congressional debates for clues to the Framers’ intent, and found a bewildering array of comments. Did the guarantees of freedom apply only to the former slaves, or did they have a larger meaning? Did the definition of national citizenship do away with or even affect the earlier rights associated with state citizenship? What did terms such as due process, privileges and immunities, and equal protection mean, and did they apply the Bill of Rights to the states as well as to the federal government?
The Supreme Court, as the interpreter and arbiter of the Constitution, did not immediately answer these questions. It had to wait until cases raising these issues appeared on its docket, and the most important of the early decisions involved not the rights of former slaves, but a complaint by white butchers against a Louisiana law they claimed established a monopoly over slaughtering livestock in New Orleans. The decision would affect the course of American constitutional history for the next six decades, and in many ways, the Slaughterhouse Cases marked the beginning of a seismic shift in the high court’s jurisprudence.
The law that eventually led to the Supreme Court struck many people as little more than a commonsense health regulation. New Orleans city officials had been trying to remove slaughtering operations from inside city limits since 1804, but their efforts had had little effect. As the city grew, so did the number of butchers and stock dealers, as well as their political influence. By the 1860s, butchers slaughtered more than 300,000 animals a year in New Orleans and adjacent Jefferson City. New Orleans had no public sewer system, so commercial as well as household wastes were either dumped in uninhabited locales such as the Mississippi River levees or into open gutters. The offal from the slaughterhouses went into the river or, in many cases, onto the streets.
The area’s natural environment—high humidity and temperature and marshy swamplands—made conditions worse. Physicians tagged New Orleans—also known as the Crescent City because of the Mississippi River’s path around it—as the dirtiest and most unhealthy city in America. The city had an extremely high death rate, as epidemics of yellow fever and cholera repeatedly decimated its residents. In 1867 Dr. E. S. Lewis testified before a state legislative committee that “barrels filled with entrails, liver, blood, urine, dung, and other refuse portions in an advanced stage of decomposition, are constantly being thrown into the river . . . poisoning the air with offensive smells and necessarily contaminating the water near the bank for miles.”
Given this situation, it is little wonder that in April 1862 the city council of Jefferson City, which contained both the stock landing (the dock area where livestock were brought into the city) and the largest slaughterhouses in the Crescent City area, took the first step that eventually led to the Supreme Court litigation. It awarded an exclusive franchise to three businessmen—William Hepp, Albin Rochereau, and Raymond Pochelu—plus others who might join with them, to build at their own expense a “general slaughterhouse” and “to have and enjoy, during twenty-five years from the completion thereof the exclusive privileges of slaughtering animals within the limits of Jefferson City.” The city council, upon completion of the building, would give public notice for thirty days and then all other slaughterhouses within the city limits would be closed. All slaughtering would have to take place in the general facility, and there would be a $100 fine for each violation of slaughtering an animal elsewhere.
The vote in the city council appears to have been unanimous, and there was little opposition noted in the city’s three newspapers. The ordinance would have given the franchise holders the exclusive right to run a slaughterhouse in Jefferson City, the building would have been subject to health inspections, and other butchers in the city would be able to slaughter livestock only at this one site. In all ways, it anticipated the legislation seven years later that would be challenged. The chief reason no opposition arose is that the facility was never built. Three weeks after the passage of the measure General Benjamin Butler and Union forces occupied New Orleans, and as one of the attorneys in the later litigation noted, the city “was cut off from trade and commerce [and] walled in by military rule. Is it a wonder, then, that Hepp and Rochereau could not use the powers and privileges conferred upon them?”
During the military rule the army enforced stringent sanitary controls similar to those in Northern cities, and New Orleans escaped yellow fever and cholera epidemics while under occupation. When civilian rule was restored in March 1866, however, despite the pleas of the mayor that the citizens continue to follow these sanitary policies, New Orleans soon reverted to its old, dirty self. By August a local medical journal complained, “This city is now filthy in the extreme.” That summer, cholera struck the area, and yellow fever returned with a vengeance a year later.
For the next three years various interests in the city fought over what should be the proper sanitation policy, with the butchers, of course, acting as if it were still 1860 and throwing their offal wherever they wanted. A state committee proposed regulations, but the New Orleans city council refused to cooperate. Citizens signed petitions demanding that the large number of abattoirs, or slaughterhouses, near the municipal waterworks be closed. Two entrepreneurs approached the city council with offers to build a centralized slaughterhouse at their own expense in the sparsely populated Third District, below the city, so that refuse could not contaminate the water supply. In return, all of the facilities above the city would have to close, and the butchers would have to use the new building. Opposition to the proposals was immediately forthcoming from the Butchers’ Benevolent Association, and Councilman John Kaiser, who represented the Fourth District where many of the livestock operations were located, successfully blocked all proposals to either centralize slaughtering or close particular operations. He had lived in the Fourth District for more than thirty years, and did not believe there was anything unhealthy about an abattoir. Despite public sentiment in favor of regulation, efforts in the state legislature to push through a centralized facility came to naught because of political pressure from the butchers and their allies. Thus, when the first state legislature to meet under the 1867 Reconstruction Act convened, Republicans immediately began pushing for what many people considered a necessary and long-overdue reform.
In March 1869 the legislature passed “An Act to Protect the Health of the City of New Orleans, and to Locate the Stock Landings and Slaughterhouses.” The measure incorporated seventeen men into the Crescent City Live Stock Landing and Slaughter-House Company, and gave the firm “the sole and exclusive privilege” for twenty-five years of landing, keeping, and slaughtering animals for food in the adjacent parishes of Orleans, Jefferson, and St. Bernard. The company had to erect, no later than June 1, 1869, “a grand slaughterhouse of sufficient capacity to accommodate all butchers,” as well as stockyards to receive all animals brought or shipped into the port. Once the new facility opened, no stock could be slaughtered anywhere else in the city.
The law, however, did not give the incorporators exclusive control over the butchering, only over where it would take place. The management could not refuse to allow healthy animals to be slaughtered in the new facility, and had to permit access to all who wished to use it. If the company refused access to a butcher, or denied him the right to slaughter a healthy animal, it could be fined $250 in each case. The company would make its money from a detailed schedule of fees that the legislature authorized it to charge and also allowed it to keep a portion of each animal for its value as raw material for agricultural fertilizer. To ensure sanitary conditions as well as the health of the livestock, the governor would appoint an inspector, who would have to issue a certificate of good health before an animal could be slaughtered. There would be a fee for such inspections, to be divided equally between the company and the state.
The butchers had not protested against the earlier Jefferson City ordinance, primarily because it had never gone into effect. But they organized against the 1869 statute, and for several reasons.
First, they sought to protect their own economic self-interest. Because of the fees, all of the butchers would have to pay more to use the central slaughterhouse than for their own facilities, and in many instances it would cost them more to transport the livestock further and then have to carry the dressed beef back to their local shops. Moreover, many businessmen anticipated that with new interest in Texas beef, New Orleans might become the major southern meatpacking center now that the Civil War had ended. The East Coast seemed starved for meat, and because normal markets had been closed during the fighting, Texas herds had grown so that some estimated that as many as six or eight million head roamed the plains in 1865, nearly twice the prewar number. New Orleans had been the chief market for Texas cattle before the war, but that trade had been a relatively small-scale effort, and without a railroad connecting eastern and central Texas to Louisiana, it would be impossible to move more than a small number of animals on a cattle drive. So far only a single line with limited capacity ran west from New Orleans.
As a result, in 1866, Texas ranchers began the first of the cattle drives that would take livestock north, first to Sedalia, Missouri, and then in a few years to Abilene, Kansas, where they would be put on the Union Pacific Railroad to Chicago. The first efforts were a disaster, with the ranchers losing many head to bad weather, rough terrain, and thieves. New Orleans saw this failure as a good omen, and assumed that Texas ranchers would have no choice but to look east to the Crescent City. When that happened, there would be so many cattle to slaughter that the central abattoir would be unable to handle the business. So the plan had to be stopped, the butchers reasoned, until the wisdom of multiple slaughterhouses handling tens of thousands of Texas beeves could be shown. There was also an assumption that the Texas–to–New Orleans railroad would expand and be able to transport thousands of head of cattle.
Second, the Jefferson City measure had been a local ordinance, and to some extent there had been recognition that localities could enact sanitary measures to protect the health and safety of their citizens. The new law had been passed by the state, however, and in the 1860s the extent of the state’s police powers was still undetermined. As early as 1851, Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court wrote in Commonwealth v. Alger that “every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others . . . nor injurious to the rights of the community.” As the century continued, other state courts confirmed the powers of the legislature to protect the community. In a case involving slaughterhouses, the California Supreme Court upheld a law regulating the placement, operation, and even the prohibition of such facilities if “expedient for the preservation of the public health” (Ex parte Shrader [1867]). Louisiana courts had yet to rule on the extent of the state’s police powers, though, and there was no certainty that they would follow the examples of other states.
Third, the whole episode stank of bribery and corruption. The Louisiana government during this time was neither better nor worse than any of the other Reconstruction regimes in the South—or, for that matter, many governments in the North. (This was, one should recall, the heyday of Boss Tweed and Tammany Hall in New York.) Gov. Henry C. Warmoth, a twenty-six-year-old carpetbagger from Illinois, became the youngest governor in the nation’s history. Upon taking office he reported that “New Orleans was a dirty, impoverished, and hopeless city with a mixed, ignorant, corrupt and bloodthirsty gang in control. . . . Many of the city officials, as well as the police force, were thugs and murderers.” Warmoth proposed that the legislature adopt an antibribery law, but it refused to do so. In fact, Warmoth’s administration is considered one of the most corrupt in Louisiana history, and he was later impeached.
The butchers attacked the method of incorporating the new abattoir and within a few months of its passage local courts heard a number of stockholder suits claiming that some of the slaughterhouse company’s organizers were being denied their rightful number of shares. Both Judge William H. Cooley of the Sixth District Court and the Louisiana Supreme Court (which did not review the cases until 1875) came to the same conclusion: that a stock fund had been “created for the purposes of corrupting and improperly influencing members of the Legislature in their action on a matter of legislation before them.” The courts dismissed the suits, declaring, “We will have nothing to do with it.”
Fourth, the butchers and others opposed the law because half of the organizers were carpetbaggers—men who had come in from the North to exploit the economic opportunity they believed existed in the war-ravaged and defeated South—and the other half were scalawags—Southerners who cooperated with Reconstruction governments for their own benefit. It was not entirely true, as one conservative newspaper claimed, that all of the organizers were “newcomers here. Not a name among the seventeen is familiar to any old citizen.” But while few of the men had deep roots in the city, their real sin lay in their willingness to work with the new government, an attitude reviled by many of the city’s white citizens.
Finally, we come to what may be the most important reason for the animosity against the Slaughterhouse Act—that it had been passed by the Reconstruction legislature and signed by a carpetbag governor. Butchers probably would have opposed a centralized abattoir at any time, but if it had been passed by a prewar legislature, or one that would have been elected after Reconstruction, they would have at the least recognized the legitimacy of the measure. This legitimacy they refused to extend to the Reconstruction government, and their animosity fed their anger toward the law establishing a centralized abattoir.
The resentment also had roots in racism and bitterness toward the national government. In 1868 a convention met under federal protection to draft a new constitution for Louisiana, one that embodied many of the Reconstruction goals of the Republican-dominated U.S. Congress. The new state constitution abolished black codes; provided for universal integrated education; prohibited racial discrimination in public places; and, for the first time, contained a bill of rights. With the former slaves casting ballots in their first election, the voters returned an integrated legislature. Thirty-five of the 101 members of the house were black, as were seven of the thirty-six state senators—and all of the black members were Republican. No matter what the quality or justification for the laws this assembly passed—and many of them were both necessary and beneficial—white Louisianans opposed them. All laws emanating from this body, declared the New Orleans Bee, “are of no more binding force than if they bore the stamp and seal of a Haytian [sic] Congress of human apes.” Other papers chimed in, urging citizens across the state to fight any and all acts passed by the new assembly, which, they claimed, were merely a parody of legislation. The slaughterhouse measure itself, declared one newspaper, was just the sort of law that one came to expect from a legislature organized “under the oppressive usurpations of the federal Congress.” The measure had been “conceived in iniquity and carried through by the boldest and most unscrupulous of means,” all to the benefit of carpetbaggers who would keep their money in “capacious iron safes, located in colder climes.” The exposure of the stock fund scandal merely confirmed these views.
When the slaughterhouse bill cleared the state senate on February 17, 1869, the Picayune charged that “300,000 people are to be heavily taxed upon their necessities for the benefit of a dozen, and this should bring from the Governor his refusal to sign and approve the bill.” There was little chance of that happening, though, and Governor Warmoth signed the bill into law on March 8. The fight, however, was far from over. The combination of economic self-interest, demand for a long-overdue sanitation measure, uncertainty about the extent of the state’s police power, widespread corruption, resentment against carpetbaggers and scalawags, and the whole notion of allowing former slaves to participate in government combined to drive litigation against the Slaughterhouse Act, a litigation that would eventually end at the Supreme Court.
The challenge to the law came from the butchers and their well-financed and well-organized trade group, the Butchers’ Benevolent Association of New Orleans. Within days of the measure’s passage the association organized a protest meeting and nailed up placards all over the city inviting citizens to attend. The group also raised $40,000 to hire lawyers to fight the statute in court. From the beginning the butchers and their allies portrayed the fight as one of individual rights. At a mass meeting on June 18, the 1,000 or so attendees resolved that they “held these truths to be self-evident,” that “every man in this community has a property in his person and his faculties. That no less sacred than this is his right to the product of those faculties which implies a right to the possession of property, to accumulate property by his labor, and to employ those faculties in any lawful avocation without the control, domination, or direction of any other person or persons in the community for their own emolument.” In a separate resolution, the butchers declared that they would not “submit patiently to a measure which invades their natural and constitutional rights.”
Although these arguments would sound familiar by the end of the nineteenth century, they were still inchoate in the years immediately following the Civil War. The notion of “vested rights” could be traced back to the Revolutionary generation, many of whom believed that many rights—especially those of property and its concomitant, the right to ply one’s business freely—were “natural,” inherent in the social contract that bound society together. Take away these vested rights and anarchy would reign. The people of the United States, asserted Justice Samuel Chase in Calder v. Bull (1798), created a government to establish justice, promote the general welfare, secure the blessings of liberty, and “protect their persons and property from violence.” Any legislative act that failed to further these goals and that detracted from one’s rights in property, Chase declared, had no force, for it violated the basis of the social compact. A formal vested rights doctrine went into decline during the Jacksonian era, but the ideas of protecting property—broadly defined—never completely vanished. In the first half of the nineteenth century, Chancellor James Kent of New York and Supreme Court justice Joseph Story, both noted legal scholars, extolled the common law as a source of property rights and protections, and warned against ill-conceived reforms to abrogate the “wisdom of the centuries.”
A related idea, the due process of law, also had ancient roots, reaching back to the Magna Carta’s “law of the land.” From its beginnings, due process has meant a bundle of procedural rights, some of which are spelled out in constitutions, statutes, and regulations, and some of which are of common-law derivation. (To understand the difference, how a trial is conducted, the rules of evidence, and jury selection are matters of procedure; the right to a trial itself is a substantive right.) The idea that due process of law might also include substantive as well as procedural rights had appeared in only a few cases before the Civil War. In the best-known state decision, Wynehamer v. People (1856), the New York high court read due process to prohibit certain types of legislative interference with business, regardless of the method used. The following year, in Dred Scott, Chief Justice Roger Taney commented without elaboration that an “Act of Congress which deprives a citizen of the United States of his liberty or property . . . and who had committed no offense against the law, could hardly be dignified with the name of due process of law.”
But if due process of law might include substantive rights, in 1869 lawyers and judges would have been hard-pressed to explain how and when it could be applied, where its justifications originated, or how, exactly, it could be used to protect property and the right of individuals to engage in a legitimate business of their own choosing. If the jurisprudence of the state’s police powers lacked clarity in these years, so too did rights theories such as those the butchers hoped to invoke.
The association would ultimately hire three different law firms to make its case, but the lead attorney turned out to be the legendary John Archibald Campbell. The son of a Georgia lawyer-planter, Campbell had begun practicing law at the age of eighteen in 1829. The following year he relocated to Alabama and quickly established himself as a leader of the legal and commercial community in Mobile. Campbell’s reputation rested on his courtroom abilities as an advocate and his extensive knowledge of the law. He owned what may have been the largest personal law library in the United States, and his knowledge of Anglo-American law was reputed to rival that of Joseph Story. A Democrat, he allied himself with the branch of the party that favored both a strong Southern rights position as well as commercial development—one loosely tied to John C. Calhoun of South Carolina and the cause of Southern nationalism, a position that later led to the secession of Southern states from the Union. In 1853 President Franklin Pierce named Campbell to the U.S. Supreme Court, reportedly on the advice of sitting members of the Court who had been impressed after hearing him argue six separate cases during the December 1851 term. Campbell freed his own slaves upon his nomination, but although considered proslavery on the bench, he occasionally worried about the impact of the “peculiar institution” on Southern society.
Opposed to secession but loyal to the South, he resigned from the Court in 1861 with “a heavy heart,” and was quickly recruited to serve as assistant secretary of war in the Confederacy. After the war he resumed the practice of law in New Orleans, and Campbell, Spofford, and Campbell (his son) quickly became one of the leading firms in the city. He also resumed his advocacy before the Supreme Court, and when he died in 1889, Justice Joseph B. Bradley wrote to a local newspaper that “[t]he esteem in which he was held by members of the Supreme Court amounted to reverence. For myself, from the time I first heard him . . . until his death, he was the beau idea of forensic perfectness.” Bradley, as we shall see, agreed with Campbell’s arguments in the Slaughterhouse Cases, and this may account for some of his admiration. Justice Samuel Miller, who did not accept those arguments, had little good to say of Campbell, and charged that he had “made himself an active leader of the worst branch of the New Orleans democracy.”
While the butchers held rallies and secured counsel, the Crescent City Company bought land and prepared to build the “grand slaughterhouse” opposite the city on the west bank of the Mississippi at Slaughter House Point in Algiers, the same site where abattoirs had been confined in the colonial era. The location met both sanitary and commercial criteria. It was away from the city’s waterworks, and near to the railhead of the New Orleans, Opelousas, and Great Western Railroad, which ran westward to Texas. In addition, two river ferries operated nearby. The location of the facility inflamed the butchers even more, for once operations began they would have to commute to the stock pens across the river and pay additional fees to have the meat brought to local markets. The company also took out an ad in the local newspapers announcing that it would be prepared to open for business as required on June 1, 1869.
As the building rose, so too did the opposition, and butchers both individually and as a group filed suit in local courts to halt construction and invalidate the law. Ultimately six of these suits were consolidated into what came to be known as the Slaughterhouse Cases.
The first case to be filed, and the one that brought all of the constitutional arguments to bear, began on the morning of May 26, 1869, when the association brought a suit in the Sixth District Court seeking an injunction to prevent the Crescent City Company from asserting any of the rights granted to it under the March law. The Butchers’ Benevolent Association claimed that its members engaged in a “lawful and necessary” trade that had been conducted for more than three decades in the parishes covered by the new law. A thousand people, supposedly, including four hundred members of the association, had invested both money and labor in building these businesses, now valued at more than a half-million dollars. The court should declare the Slaughterhouse Act null, because it destroyed important property rights for the benefit of a few adventurers.
The most innovative part of the butchers’ brief, however, came when it charged that the act violated the privileges and immunities clause of the newly ratified Fourteenth Amendment, which “secures to all protection from state legislation that involves the right of property the most valuable of which is to labor freely in an honest avocation.” In addition, because cattle came in from Texas, association lawyers charged that the statute also encroached upon the power of Congress to regulate interstate commerce.
In a second case, initiated only a few hours later, the Crescent City Company sought and secured an injunction against the Butchers’ Benevolent Association to stop it from attacking the company in the exercise of its legal rights and to leave the company free to assert those rights. Another injunction would have prevented association butchers from selling meat after the new abattoir opened. The president of the association denied the validity of the writ and was temporarily jailed for violating the injunction, but when he came out he urged butchers to continue selling meat through their own facilities. Since the injunction won by the company was against the association, and did not bind butchers not affiliated with it, he urged individual butchers to resign from the association and continue to ply their trade.
In the next several weeks, the general district courts in New Orleans were besieged by lawyers for the butchers and the company filing one motion after another. An injunction given in one court would be nullified by a counter order in another. By the end of June, counsel for the butchers had filed at least 170 suits and secured about 500 injunctions, while the company secured over 200 injunctions of different kinds against the association as well as individual butchers. One of the company’s actions was filed against the steamboat B. L. Hodge No. 2 and its owner for landing 226 head of cattle at a place other than the company’s pier, and thus avoiding wharfage fees. It would become one of the five cases included in the appeals to the high court. By the end of June, only a month after the Crescent City Company had opened the state-authorized abattoir, it was clear that the merits of the arguments would have to be decided by the state supreme court.
What is extraordinary about all of these actions is that while both sides sought to cripple the other through the use of various injunctions—orders to stop doing something—neither the butchers nor the Crescent City Company seemed willing to debate the merits of the cases. And while the litigation dragged on, the butchers launched an end run around the state-authorized slaughterhouse.
In nearly all the butcher suits one theme appeared over and over—the state had created a monopoly, and in so doing had transgressed both common law and constitutional restraints. The Picayune reminded the butchers that it was this issue, and this issue only, that had popular support. The public, according to the paper, did not want slaughterhouses near the water supply, and there was nothing in the law to prevent the butchers from selling beef slaughtered outside the three parishes covered by the law inside New Orleans. The butchers got the hint, and in mid-July a group of stock dealers and butchers bought land in St. Bernard Parish for the purpose of erecting a slaughterhouse. By relocating outside the city, there could no longer be any health questions, although the distance to this location was for nearly all of the butchers as great or greater than that to the Crescent City facility. This new group then secured an injunction to prevent the Crescent City Company from interfering with its plans, and challenged the constitutionality of the law on both state and federal grounds. In January 1870, just days before the Louisiana Supreme Court heard arguments, the newly formed Live Stock Dealers and Butchers Association staged a grand opening of its almost finished facility. The festivities included a parade through the city with a brass band, droves of cattle, and dozens of butchers dressed in the colorful European costumes of their trade. Everyone, including the judges, knew that a new and up-to-date slaughterhouse existed below the city.
The state court refused to hear all of the various pleas and counterpleas, and ordered both sides to consolidate their arguments into manageable cases—three actions initiated by the Butchers’ Association against the Crescent City Company, and three by the company against the butchers, including the suit against the steamboat. Both sides filed dozens of formal exceptions, with an eye to keeping these minor issues alive in case of an appeal. On January 27 and 28, 1870, the Louisiana Supreme Court heard the arguments.
John Campbell spoke as the lead attorney for the butchers, and he stressed three major points—both procedural and constitutional. First, the statute in question had been enacted through bribery of members of the legislature, and could therefore be put aside for fraud. Second, the statute violated the Louisiana constitution because the governor had signed it after the legislature had adjourned and not within the five-day period the constitution mandated. Third, the statute was unconstitutional because it created a monopoly, a power that exceeded the legislature’s authority. In all, Campbell took a very Jeffersonian approach, arguing for a very limited view of governmental powers.
Where Campbell raised constitutional questions, Louisiana attorney general Simon Belden tried to dismiss them as irrelevant. The statute was a pure and simple police measure promoting the health and cleanliness of the city. Since this was clearly within the province of the state’s authority, so then was the means it chose to carry it out. That it could do so by insisting on a central abattoir was so reasonable that no one could deny the justness of the solution. No one had taken away the right of a person to be a butcher; the state had simply insisted that all butchering be done in a central, sanitary place in order to protect the health of the city.
Randell Hunt, one of the attorneys for the company, took on the task of answering Campbell’s constitutional arguments, and responded in the same manner that Alexander Hamilton and then John Marshall had done decades earlier. In words reminiscent of Marshall’s argument in M’Culloch v. Maryland (1819), he argued that the state had all powers necessary to carry through a legitimate purpose, and what could be more legitimate than protecting the health and safety of the people? He then attacked Campbell for his argument that the incorporators deserved to be in a penitentiary for corrupting the legislators, calling it a libel, an accusation for which Campbell had not the slightest shred of evidence.
In a 3–1 opinion the state high court upheld the validity of the statute, ruling in favor of the Crescent City Corporation. For the most part, Chief Justice John Ludeling brushed aside the butchers’ arguments as inconsequential. The heart of their arguments—that the act deprived them of their livelihood in violation of the new state bill of rights as well as the Fourteenth Amendment, and that it created a monopoly—failed to convince the judges. They accepted the state’s argument that this was a needed sanitary measure, fully compatible with the state’s police powers, and that it had not created a monopoly. Butchers were still free to ply their trade, but they had to do so in a centralized location. Ludeling quoted from Thomas M. Cooley’s Constitutional Limitations (1868), a new volume already recognized as authoritative, that “[t]here are, unquestionably, cases in which the State may grant to specified individuals, privileges, without violating any constitutional principle, because, from the very nature of the case, it is impossible that they be possessed and enjoyed by all.”
This should have ended the matter. Both sides had agreed to abide by the decision of the Louisiana Supreme Court, and while not specifically precluding an appeal to the U.S. Supreme Court, no one believed they would be able to get that tribunal to accept such a seemingly inconsequential matter. But as soon as the state court handed down its decision upholding the statute as a legitimate exercise of the police power, the attorneys for the butchers ignored the agreement and initiated an appeal to the federal courts. Much to everyone’s surprise, Justice Joseph Bradley, sitting on circuit, agreed to hear the case.
On June 8, 1870, spectators crowded into the courtroom to hear John Campbell denounce the bill, claiming that both the Civil Rights Act of 1866 and the Fourteenth Amendment had been designed to secure all citizens equality of civil rights. (The irony of the former Confederate official invoking laws passed by the hated Republican Congress was not lost on the city’s newspapers, who, if they opposed the law, wanted some other justification for scuttling it than one that seemingly acknowledged the legitimacy of the federal government’s power.) Opposing counsel William Hunt denounced the butchers for reneging on their agreement, and argued that the Civil Rights Act and the Fourteenth Amendment had never been intended for the purposes Campbell claimed. Moreover, he asked, where had anyone lost his rights? There was no monopoly, since all butchers could ply their trade. The state had done no more than legitimately enact a health measure requiring a centralized slaughterhouse.
Campbell had not tried to hide what he thought of the Reconstruction legislature and the foisting of an interracial legislature on Louisiana, and he knew that Bradley, a New Jersey lawyer who had only been on the Court six months, believed that the South should be left alone to deal with internal matters. Campbell’s ploy worked. Bradley ruled that the 1866 Civil Rights Act had no bearing on the case, since it had been enacted to secure to citizens of every race and color the same civil rights, and not to enlarge or modify the rights of white citizens. The Fourteenth Amendment, however, did bear on the matter, and the privileges and immunities clause served as an absolute barrier to the states’ infringing on those rights. “There is no more sacred right of citizenship,” Bradley held, “than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.” As such, he found the 1869 statute unconstitutional.
Although Bradley accepted practically all of Campbell’s arguments and held the law unconstitutional, a technical matter prevented him from giving the butchers the relief they sought. A 1793 act of Congress forbade federal courts from granting an injunction to stay proceedings in state court. As such, he could not overturn the Louisiana court’s judgment, and the parties would have to appeal to the U.S. Supreme Court for relief. With this decision, Bradley made it not only possible but inevitable that the issue would go to the high court.
The justices heard arguments in the case in January 1872, with the ailing Samuel Nelson absent. Apparently the remaining justices split 4–4, and rescheduled arguments the following term. On February 3, 1873, lawyers for both sides began three days of argument before a full Court, with Ward Hunt replacing Nelson, who had retired.
The Court that John Campbell faced in 1873 was far different from that on which he had sat in the 1850s. Only one man, Nathan Clifford, remained from the bench from which Campbell had resigned. That Court had consisted entirely of appointees named by Democratic presidents, and their jurisprudence had been proslavery, pro–states’ rights, and in opposition to a strong national government. In 1873 all but Clifford had been named by Republican presidents, and they looked at the world and at the Constitution differently. A bloody war had been fought to eliminate slavery, and states’ rights—at least as far as the Southern states were concerned—did not rank high in their consideration. The expansion of power by the federal government to meet the emergency of rebellion did not mean that the role of the states had been abolished, but a new balance was being created in the federal system, one that was more sympathetic to national power. And, of course, the Civil War amendments meant something, but exactly what they meant remained to be determined. The Slaughterhouse Cases would be the first opportunity for the Court to weigh in on this question.
Campbell had a dual agenda. On the one hand, like any lawyer, he wanted to win the case for his clients. But he had a subtler goal—namely, to use the Reconstruction amendment to put an end to Reconstruction. Campbell hated the occupation of the South by Union troops, and the role of the former slaves that, as he saw it, had been forced onto the new state government. He wrote to his daughter, “We have the African in place all about us. . . . Corruption is the rule.” As far as he was concerned, the 1869 statute had no merit at all because it had been enacted by the hated mixed-race assembly and signed into law by the carpetbag governor. If he could convince the Court that the Fourteenth Amendment protected white people against what he saw as arbitrary and corrupt government, then much of Reconstruction would be voided as unconstitutional.
He first argued that the Slaughterhouse Act had been enacted by “legislative caprice, partiality, ignorance or corruption,” and here as in the lower courts Campbell appealed to what he saw as the righteousness of the old ways. It may have been an emotionally powerful plea, but it had little jurisprudential force. In 1810 the Court had heard a case involving thirty-five million acres of the Yazoo land grants in what is now Alabama and Mississippi that had been procured through bribery and corruption of the Georgia legislature. In Fletcher v. Peck Chief Justice John Marshall said that the Court would not look into charges of chicanery in a state legislature; such problems had to be corrected by the people themselves through the political process. Chief Justice Roger Taney also refused to look into problems with state assemblies. When rebellion broke out in Rhode Island because of the virtual disenfranchisement of more than half the citizenry, Taney declared that such matters were “political questions” that the judiciary could not resolve, but had to be left to the people (Luther v. Borden [1849]). Campbell hoped, however, that by painting as unpalatable a picture of the Louisiana assembly as possible, he might gain sympathy for his second, and critical, argument.
The “first great principles of the social contract,” he claimed, were that legislatures could not act outside their legitimate spheres of power. This had always been implicit in American law, and the new constitutional amendments now made that explicit. It did not matter that the amendments may have been originally proposed as a protection for the former slaves: “We have never supposed that these Constitutional Amendments had any particular or limited reference to Negro slavery,” he said. The wording of the documents—involuntary servitude, equal protection, due process of law, privileges and immunities—applied to all men, white as well as black. This assertion, of course, flew in the face of history and the fact that nearly all Americans, North and South, understood that they had in fact been drafted to deal with slavery and the freedmen.
Campbell then proceeded to argue that the 1869 law subjected his clients to a form of involuntary servitude, in that the butchers were forced to ply their trade at the central abattoir. This also violated their privileges and immunities, since “no kind of occupation, employment or trade can be imposed upon him, or prohibited to him, as to avoid all choice or election on his part.” He totally ignored the fact that the people had been seeking this type of health regulation for decades, or that the state had police powers to protect its citizens. Campbell took a law that did not prohibit his clients from practicing their vocation and made it sound as if they had to butcher animals while chained to a post and under the lash. Finally, the law had what he believed to be a fatal constitutional flaw in that it created a monopoly, a device hated in both English and American law since Elizabethan times, and he contended that every holding in the great English Case of Monopolies (Darcy v. Allein) of 1588 applied here as well.
Campbell did more than merely distort the Slaughterhouse Act and try to portray it as an affront to traditional tenets of Anglo-American law; he out-and-out lied. He falsely asserted that no question of health had ever been raised before the Louisiana Supreme Court, or that the pollution of the Mississippi had ever been mentioned in connection with the city’s water. This travesty of a law, he claimed, and the great harm it inflicted on his clients all resulted from the further travesty of Reconstruction, which had not only upended the traditional “social order and conditions,” but had deprived its citizens of their rights.
In rebuttal, Thomas Durant, counsel for the company, argued that the law was nothing more or less than a valid exercise of the state’s police powers to protect the health and welfare of its citizens. From a precedential point of view, Durant easily had the stronger position. The Supreme Court had on several occasions upheld state acts as legitimate expressions of this power, including the right to incorporate a private entity for the attainment of such goals. Time and again Durant emphasized that the law was a health measure, and that no sane person could interpret it any other way. The butchers had not been made slaves, they had not been deprived of their livelihood; they merely had to practice their craft with due regard to the health of their fellow citizens. As for the Fourteenth Amendment, Durant thought it clear to everyone that Congress in proposing it, and the states in ratifying it, had the protection of the former slaves in mind.
On April 14, 1873, the Supreme Court handed down its decision in the Slaughterhouse Cases. Justice Samuel F. Miller spoke for the 5–4 majority, and his background made him very familiar with public health issues. Prior to his appointment to the Court he had lived in Keokuk, Iowa, a town on the Mississippi that had once been the sixth-busiest pork-packing center in the country. Miller, who had been a doctor before taking up the law, well knew the nature of the slaughtering business, and had seen how Keokuk had successfully regulated the abattoirs there.
Miller summarized Campbell’s extensive charges about the creation of a monopoly and the deprivation of the rights of the butchers, and then dismissed them. “A critical examination of the act hardly justifies these assertions,” he said. The law, as Durant had emphasized, determined the place where livestock could be landed and butchered, but did not prevent anyone from plying their trade. With this point made, of course, the rest of Campbell’s argument fell by the wayside. The state had acted not only reasonably, but within its authority—that, of course, being the police power. That power had been exercised in the past, and no doubt would be in the future, through the creation of private corporations to carry out a legitimate goal of government.
Miller could have, and perhaps should have, stopped here without going into a full-scale repudiation of Campbell’s constitutional arguments. If there had been no deprivation of vocation, then there had been no “involuntary servitude,” no violation of privileges and immunities, no creation of a monopoly. But he knew that four members of the Court had accepted those arguments, so he felt constrained to answer them, and he did so by going into the history of the Civil War amendments and declaring that they had been enacted for the sole purpose of freeing the slaves and then protecting their legal rights. Clearly the wording was expansive, and Miller did not deny that the rights could be invoked by others who had not been slaves, but the Framers of the amendments had not been concerned with butchers having to work in a central slaughterhouse but with the rights of millions of ex-slaves.
In his exegesis of the privileges and immunities clause, the first time the Court had addressed the issue, Miller declared that if one adopted Campbell’s arguments, the Court would become a perpetual censor of all state legislation, and that was clearly neither desirable nor the intent of the amendment. The limit imposed upon the states did not mean that all protections for civil rights and liberties were now transferred to the national government; rather, it imposed just one more limitation upon the states, similar to others. States would remain the primary defenders of the rights of their citizens; the Fourteenth Amendment was intended to clarify those duties, and not diminish the role of the states in the federal system.
Scholars parsing Miller’s opinion find a tentativeness in it, a reluctance to follow through on some of his assertions, perhaps because if he had done so, he might not have reached the conclusions he did. While he had no problem with asserting the power of the states to enact measures under the police powers, and to see the Louisiana law as a health measure, his sections on who would protect the rights of citizens, whether the Fourteenth Amendment expanded upon the rights of national citizenship as opposed to those of state citizenship, and whether there had been an alteration in the dynamics of the federal system are far less assertive.
The same could not be said of Justice Stephen J. Field’s dissent, joined by Chief Justice Chase and Justices Swayne and Bradley. The latter two also entered separate and bitter dissents, but the key opinion is that of Field, because it would, in the end, be triumphant and dramatically affect the future course of American jurisprudence. They did not fear that the federal courts would become the censors of state action; in fact, they welcomed such a development. Field argued that the Fourteenth Amendment protected the basic rights of all Americans, not just the ex-slaves, and this meant that the New Orleans butchers could not be denied their economic rights without due process of law. As Field noted, the issue was “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.” The Fourteenth Amendment, in this view, provided that protection.
The privileges and immunities designated in the amendment “are those which of right belong to the citizens of all free governments,” and among these was the right “first to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.” The amendment required that all state legislation protect liberty and equal rights for all citizens, and that all laws had to be “just, equal, and impartial.” Under the supremacy clause of the Constitution, the Court had the power through the new amendments to strike down offending state legislation that did not comply with this standard.
In essence, Field argued that the Fourteenth Amendment had now created a new standard of rights, those enjoyed by citizens of the United States, and that these rights not only had to be respected by the states, but they could be enforced by federal courts. Most commentators now agree that the Fourteenth Amendment was, in fact, designed to apply the Bill of Rights to the states, and this created a common standard of rights throughout the nation.
This idea took a while to catch on, but eventually, through the process of incorporation of the Fourteenth Amendment’s due process clause, the Court did apply most of the provisions in the Bill of Rights to the states. More important, Field’s exegesis of what due process of law meant, and that it included substantive economic rights, also won over the Court. By 1897 the notion of substantive due process, incorporating economic liberty and standing as a bar against regulation of property or the labor force, had become enshrined in the law, and would remain there until the great constitutional crisis of the 1930s. It should be noted, however, that Field as much as Miller recognized the need for state police powers, but Field seemed willing to allow the states wider latitude in striking a balance between individual freedom and the need to preserve social order and promote the general welfare. That part of Field’s opinion got lost as later conservative justices emphasized property rights and denied government its traditional powers to protect the citizens.
By the time the Court decided the Slaughterhouse Cases, Reconstruction was beginning to run down, as Southern opposition and growing Northern indifference to the fate of the freedmen fused into a political bargain in 1876 that gave the presidency to the Republicans and removed all Northern troops from the South. The freedmen soon found themselves tied up in a system of apartheid that, if not outright slavery, nevertheless kept them in legally enforced inferiority until the 1950s.
Once freed from federal control, Louisiana adopted a new constitution in 1879 that attempted, as much as it could, to reestablish the old order. Blacks did not fare well, there were no protections for civil rights, the power of the government was limited, and the only legitimate role of government was “to protect the citizen in the enjoyment of life, liberty, and property.” The state government was prohibited from creating corporations, or granting to any corporation already in existence any special or exclusive rights. The regulation of slaughtering was given to parish and city governments, but they could not do so by means of monopoly or exclusive privileges, and any designation of specific places for abattoirs had to be approved by the board of health.
Over the next decade the Crescent City Company fought to keep its privileges, and even took a case up to the Supreme Court on the basis of the contract clause, which forbids states from retroactively changing the terms of a contract, claiming that what the legislature had once created it could not now take away. Other abattoirs were created, and came and went with monotonous regularity. Periodically, New Orleans newspapers would complain about the stench and ill effects of local slaughterhouses. The Crescent City Company, in one corporate form or another, stayed in business until the 1920s. The last slaughterhouse in New Orleans closed in 1963.
Calder v. Bull, 3 Dall. 386 (1798)
Commonwealth v. Alger, 61 Mass. 53 (1851)
Darcy v. Allein (Case of Monopolies), 9 Coke’s Reports 84 (1588)
Dred Scott v. Sandford, 19 How. 393 (1857)
Ex Parte Shrader, 33 Cal. 279 (1867)
Fletcher v. Peck, 6 Cranch 87 (1810)
Luther v. Borden, 7 How. 1 (1849)
McCulloch v. Maryland, 4 Wheat. 316 (1819)
Slaughterhouse Cases (The Butchers’ Benevolent Association of New Orleans v. Crescent City Live-Stock Landing and Slaughter-House Company), 16 Wall. 36 (1873)
Wynehamer v. People, 13 N.Y. 378 (1856)
The most comprehensive look at these cases and the issues they raised is Ronald M. Labbé and Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (2003). The best survey of constitutional development in this period remains Harold M. Hyman and William Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (1982). The spread of due process jurisprudence and its influence for the next sixty years is explored in William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998). The expansion of police powers is detailed in William Novak, The People’s Welfare: Law and Regulation in Nineteenth Century America (1996). For the butchers’ leading lawyer, see R. J. Saunders, John Archibald Campbell: Southern Moderate, 1811–1899 (1997). For Stephen J. Field, see Paul Kens, Justice Stephen J. Field: Shaping Liberty from the Gold Rush to the Gilded Age (1997).