THE FIRST TEST OF FOURTEENTH AMENDMENT GUARANTEES was brought to the Supreme Court not on behalf of black Americans, but rather against black Americans. The plaintiffs were a group of white New Orleans butchers who regularly dumped foul, untreated animal waste into the almost impossibly polluted Mississippi River, just upriver from the pipes that supplied the city’s drinking water. The defendants were, in effect, the men of color who were members of the Louisiana state legislature and New Orleans city government.
Even at a time when public sanitation in the United States could be slapdash, post–Civil War New Orleans might well have been the filthiest and most disease-ridden city in the nation. It had been so for decades. The problem was largely man-made, and butchers, almost all of whom came from Gascony, in southwest France, were among the most prominent culprits. Ignoring public outcry, they persisted in sweeping the bones, organs, body parts, dung, and urine of cows, sheep, and pigs into the river, such that occasionally bits of these products would flow out of water taps. Periodic epidemics of cholera and yellow fever were the result. In 1859, a city physician spoke of “gutters sweltered with the blood and drainings of slaughter-pens,” and that “every highway that chanced to be unpaved was broadcast with the rakings of gutters and the refuse filth of private yards and stables.”1 When Union forces took the city in 1862, General Benjamin Butler complained that “the streets were reeking with putrefying filth.”2
In addition to being agents of misery, the Gascon butchers—notoriously independent, clannish, and hard-edged—had also conspired to keep the price of meat high. For as far back as anyone could remember, New Orleans residents had pleaded with the governor and state and city legislators to do something.
Finally, in 1869, they did. Louisiana passed a law that required all butchers to slaughter, gut, and carve up animals in a single facility—downriver from the water mains—and under the supervision of trained inspectors. This central slaughterhouse would be run by a private corporation licensed by the state. Butchers would pay a small fee for every animal they acquired, but would no longer be required to either purchase or lease facilities of their own. Other cities, such as Boston and New York, had enacted similar laws and watched the rate of disease fall.
Although the butchers complained loudly that they were being denied the right to practice their trade as they wished, this law ordinarily would have evoked cheering from city residents. But it did not. That was, at least in part, because the legislature that passed the bill and the governor who signed it were Republicans, and, even worse, a goodly number of those legislators were not white. Of the sixty-five Republicans in the 101-member Louisiana House of Representatives, thirty-five were black. In the state senate, seven African Americans, again all Republican, took their seats with twenty-nine whites.
Democratic newspapers assailed the new law, accusing Republicans of setting up the central slaughterhouse not to protect the health of the citizenry, but to make money through corruption and graft.3 They also complained that the new facility would be available to anyone—which meant black butchers could use it as well.
With the encouragement of the same white supremacists who had been complaining about them for decades, the butchers sued. If they got nowhere in state court, they would appeal in federal court. There, however, they would need to find some way in which the new law violated their constitutional rights, and so they would claim that forcing them into a different place of business amounted to “involuntary servitude” in violation of the Thirteenth Amendment, and that the Fourteenth Amendment protected their “privileges and immunities” of citizenship, in this case the right to conduct business how and where they wished.
Although the butchers’ appeal would seem to rest only on how the language in the two amendments was interpreted, this case would actually become a chess match between two masterful adversaries, with language only the game pieces. Each knew his opponent well, and each loathed the other. One was an unapologetic white supremacist who had resigned a seat on the Supreme Court to become one of the leaders of the Confederacy; the other was a sitting justice who had been so opposed to slavery that he had left his native Kentucky in 1850 to move to free Iowa.
Appearing for the butchers was John Archibald Campbell, who had joined the Supreme Court in 1853, after Chief Justice Roger B. Taney—author of the Dred Scott decision—and the other justices requested President Franklin Pierce appoint him. Campbell had been a legal prodigy, admitted to the bar in his native Georgia at age eighteen, so young that a special act of the state legislature had been required to allow him to practice. He left the Court in 1861, after his then home state of Alabama rejected the Union, and was appointed assistant secretary of war by Confederate president Jefferson Davis. After Lincoln’s assassination, Campbell had been arrested and held in jail for six months as a potential conspirator.
His opponent, Samuel Freeman Miller, was a no-nonsense, plain-speaking champion of equal rights. He had been born into a slave-holding family in Kentucky in 1816, but grew to detest slavery and those who practiced it. When he fled the South, he settled in Keokuk, a Mississippi River port and a major shipping location for the same cattle, sheep, and hogs that in the 1860s would end up in New Orleans slaughterhouses.
Miller was more familiar with cholera than anyone on the federal bench—before entering the law, he had been a doctor who had specialized in its treatment. That most physicians treated the disease as if it were still the Middle Ages, employing bleedings and purgatives, had infuriated him. Miller was convinced that cholera was transmitted from unclean water, instead of “indigestible vegetables” or “filthy and intemperate habits of the urban poor,” but few would listen to him.4 He finally abandoned medicine because he could no longer bear to watch so much needless suffering and death.
Almost immediately after entering the law, Miller had gained a reputation for brilliance. He supported Abraham Lincoln in the 1860 presidential election, and the new president rewarded him in 1862 with a nomination to the Supreme Court. Miller was committed to racial equality and the goals of Reconstruction, and he harbored a particular dislike for a man he believed had dishonored the very court of which he was now a member. He wrote to a friend that he “had never seen nor heard of any action of Judge Campbell’s since the rebellion that was aimed at healing the breach he had contributed so much to make,” and that Campbell was then merely “a discontented and embittered old man.”5 Campbell himself bore that out. “We have Africans in place all about us,” he wrote to a friend. “As jurors, post office clerks, custom house officers, and day by day they barter away their obligations and privileges . . . corruption is the rule.”6
Miller, therefore, would hear the arguments in the Slaughter-House Cases with a personal and scientific interest in proper sanitation, a desire to support the biracial government of Louisiana, and a deep distaste for John Campbell. While none of these were supposed to affect Miller’s judgment, Campbell knew he had to find a way to turn those prejudices to his advantage.
In fact, John Campbell was a more complex figure than Miller gave him credit for. In his early career, and during his eight years on the Court, Campbell had been known as a master of compromise. Although he was in favor of slavery and believed in the superiority of the white race, he had advocated eventual emancipation and had even freed his own slaves before taking his seat on the Court. After the election of Abraham Lincoln, Campbell had tried to persuade the new president to negotiate on Southern secession. Lincoln refused, insisting that secession was against the law and no accommodation was possible. It was only then that Campbell returned home to take a position in the Confederate government. Even his imprisonment had been as a result of an effort to persuade Lincoln to soften his stance toward the defeated South.
But either his months in an army prison or what he saw as the injustice of Reconstruction had hardened him, and as the elevation of African Americans spread through Southern society, Campbell’s every energy had come to be devoted to the return of white government.
Before he could face off against his former colleagues on the Supreme Court, however, Campbell needed to lose in the state court to establish grounds for appeal. He did not expect that to be difficult, since most of the judges were Republican and they drank New Orleans water. He asserted that the Slaughter-House law had been passed as a result of bribery and vote-buying in the state legislature, which fit neatly into his theory that newly seated black legislators were either too naïve or too craven to govern honestly. As such, the law could be voided on account of fraud. He also insisted it had not been signed within the legal time limit. Finally, and most importantly, Campbell declared that the law established an illegal monopoly, which subjected those forced to do business with it—white butchers—to unfair and unconstitutional restrictions on their business.
The first two grounds, largely smoke screens, were easily swept aside by lawyers for the state. While bribery and vote-buying had more than likely been involved, Campbell had been unable to provide specifics, and no judge was going to overturn such an important law because of a couple of days’ delay in its being signed. As to the charge of illegal monopoly, the Louisiana Supreme Court ruled the law fell within the state’s police power and should thus be allowed to stand.
The loss gave Campbell the opportunity to end up precisely where he wanted to. At the Supreme Court, he would plead to his former colleagues that the Slaughter-House law should be overturned on Thirteenth and Fourteenth Amendment grounds. He was sufficiently savvy to recognize that with public health as a key feature of the case, he would almost certainly be up against Samuel Miller.
Knowing how much Miller wanted to rule against him, Campbell set a trap. When the proposed Fourteenth Amendment was being debated in the House of Representatives, John Bingham had made it clear that “privileges and immunities of citizenship” was meant to apply federal citizenship rights to the states. Bingham, of course, had been referring to the rights of newly freed slaves, who were guaranteed United States and state citizenship in the first sentence of the amendment.
But the “privileges and immunities” clause did not mention race, only “citizens,” and so Campbell insisted that it covered white citizens as well as black. Louisiana therefore had no right to herd butchers into a common facility and force them to pay fees to ply their trade. Unless, of course, state citizenship was different than national citizenship, with different “privileges and immunities.” In that case, state governments could do things the federal government could not. Although Campbell carefully avoided saying so, if there were in fact two classes of citizenship, then states could pass other laws that fit their own definition. That he had drafted an argument exalting the power of the national government at the expense of states’ rights could not have been lost on the man who had resigned his seat on the Court, joined the Confederacy, and gone to prison in defense of states’ rights. But Campbell was not to be deterred by such niceties.
In compromising his principles, Campbell had created an extremely clever argument. The Court could either support him and use the Fourteenth Amendment to protect a group of white, racist butchers who were poisoning New Orleans’s drinking water, or they could rule against him and limit the amendment’s reach by narrowing when its guarantees could be applied, especially for people of color. Although he almost certainly did not inform his clients, his personal agenda of undermining Reconstruction would be much better served if he lost the case.
Which he did.
On April 14, 1873, by a 5–4 vote, the Court ruled that New Orleans had the right to require the butchers to relocate their business to a central location run by a corporation licensed for the task. “It is not true,” Miller wrote for the majority, “that [this arrangement] deprives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit.”7 (Miller also quickly dismissed the notion that requiring the butchers to relocate was “involuntary servitude,” as defined by the Thirteenth Amendment.)
Miller made a point of lecturing Campbell on the meaning of the post–Civil War amendments.
An examination of the history of the causes which led to the adoption of those amendments and of the amendments themselves demonstrates that the main purpose of all . . . was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.
The Fourteenth Amendment, then, had not been enacted to shield white butchers from a state law meant to protect the health of its citizens.
But in his eagerness to destroy Campbell’s argument, Miller fell into his trap. There was a “balance between State and Federal power,” Miller wrote, and those in the federal government “believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property was essential.” So there was indeed a difference between citizenship in the United States and citizenship of a state, which meant that “privileges and immunities” might mean different things to each.
So, in overruling Campbell, Miller prevented the “privileges and immunities” clause of Fourteenth Amendment from being used against state laws, which was exactly what Campbell had hoped he would do. Other rights that might be considered “privileges” of citizenship—like voting—could now be left almost solely to the whim of states. As a result of Miller’s blunder, the man on the Court most determined to protect black Americans turned what should have been the strongest guarantee in the Fourteenth Amendment into the weakest. And he did so using language and reasoning that would be adopted by white supremacists and Redeemers in the coming years.
Three justices wrote dissents—Swayne, Bradley, and Field—the latter of which was joined by the other two as well as Chief Justice Salmon P. Chase. Field’s dissent was consistent with a lifelong commitment to laissez-faire capitalism, and he read the Fourteenth Amendment as protecting businesses, an interpretation that in the coming years would dominate American jurisprudence. To Field and his fellow dissenters, there was only one class of citizen and the butchers had been denied the privileges and immunities of that citizenship, meaning they should have been free to dump anything in the fetid Mississippi that they pleased.
As a result of the Fourteenth Amendment, Field wrote, “A citizen of a State is now only a citizen of the United States residing in that State.” As a result, “the fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State.” Although
the exercise of these rights and privileges . . . are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides . . . in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive their existence from its legislation, and cannot be destroyed by its power.
If [the Fourteenth Amendment restrictions] only refer, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character.
Field, whose racial attitudes could hardly be described as enlightened, was not above a bit of hypocrisy to buttress his argument.
[The Fourteenth] amendment was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes . . . 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.
And so, where Miller had used the language of Redeemers, Field was using the language and reasoning of the Radical Republicans. That reading of the Fourteenth Amendment could be used to secure the voting rights of African Americans—as could the Fifteenth—but only if Field and those who thought like him applied the same principles to equal rights that they were prepared to do for businesses.
Time would prove they were not.8