[Constitution FeedBack&Research] Slaughter-House: THE FOURTEENTH AMENDMENT

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FREEDOM: CONSTITUTIONAL LAW: CONSTRICTING THE LAW OF FREEDOM: JUSTICE MILLER, THE FOURTEENTH AMENDMENT, AND THE SLAUGHTER-HOUSE CASES

1994

Author: Richard L. Aynes *

* John F. Seiberling Professor of Constitutional Law, The University of Akron School of Law.

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"One of the canons of construction never to be lost sight of is to give effect, if possible, to every word of the written law."

Fourteenth Amendment author John A. Bingham  1 

"Criticism of [the Slaughter-House Cases] has never entirely ceased, nor has it ever received universal assent by members of this Court."

Justice William Moody  2

INTRODUCTION

The Slaughter-House Cases  3 are simultaneously unremarkable and extraordinary. They are unremarkable because the matter at issue - whether butchers can be required to ply their trade at a central, state-franchised facility - has long since ceased to be a matter of concern. They are extraordinary because in spite of the fact that three of the Court's significant legal conclusions have been rejected and "everyone" agrees the Court incorrectly interpreted the Privileges or Immunities Clause,  4 the conclusion that the Privileges or Immunities Clause of the Fourteenth Amendment  5 had no meaningful place in our constitutional scheme continues to live on.

Even those who have a narrow view of the Fourteenth Amendment conclude that beyond due process and equal protection, the Fourteenth Amendment was "meant to establish some substantial rights" and that "these were the "privileges and immunities of citizens of the United States.'"  6 Yet almost all sources agree that Justice Miller's majority opinion in the Slaughter-House Cases, or at least its dicta, "virtually scratched [the Privileges or Immunities Clause] from the constitution."  7

This Article argues that Justice Miller's majority opinion was indeed based on an incorrect reading of the Fourteenth Amendment, and then explores why Justice Miller, as well as the other Justices in the majority and the dissents, reached the conclusions they did.

Part I sketches the basis for the view that the Privileges or Immunities Clause of the Fourteenth Amendment was designed to protect substantive rights, primarily the Bill of Rights, from state abridgement.  

Part II examines the Slaughter-House decision, summarizing the arguments presented by counsel and analyzing the opinions written by Justices Miller, Field, Bradley, and Swayne.

Part III critiques Justice Miller's opinion.

Part IV seeks to explain the positions of the Justices by examining the political background of each of the Justices and, where available, their personal reactions to the adoption of the Amendment.

Part V tests this analysis of the opinions and background of the Justices against the popular and professional commentary on the Slaughter-House opinion from 1873 to 1949.

I. ANTISLAVERY VIEWS LEADING TO THE FOURTEENTH AMENDMENT

The adoption of the Fourteenth Amendment was a thoughtful and deliberative process. The first version of Section 1 of the Fourteenth Amendment was introduced on February 13, 1866,  8 some ten months after the end of the Civil War. The various proposals for an amendment were discussed intermittently, often in the midst of other legislation such as the Civil Rights Bill of 1866, until the final debate on the Fourteenth Amendment itself took place in the House on May 10, 1866, and in the Senate on June 8, 1866.  9 The ratification process continued for over two years until Congress declared the Amendment ratified on July 21, 1868.  10

The Fourteenth Amendment was, for all practical purposes, also "ratified" by a large popular vote. It had been proposed by overwhelming majorities in both the House and the Senate.  11 The Amendment was a "central issue" in the 1866 Congressional elections,  12 when in spite of small mid-term losses, the Republicans retained a commanding control of Congress, holding 143 of 192 seats in the House and 42 of 53 seats in the Senate.  13 Indeed, William Nelson recounts the wide public discussion of the Amendment and the fact that at least some state legislators felt they had a "duty" to ratify the Amendment based upon the results of the Congressional elections.  14 In the words of New York Governor Reuben E. Fenton: "Never before in the history of the Government, upon any great question affecting our national interests has there been such unanimity in the expression‎ of the popular will."  15 This "consensus" followed decades of debate over slavery, the enforcement of the fugitive slave clause, and the rights of citizens to oppose slavery and its extension.

A key element in that debate was the interpretation of Article IV of the United States Constitution. Those who struggled legally and politically against slavery and "Slave Power" saw Article IV, Section 2 of the Constitution 16 as protecting the substantive rights of United States citizens.  17 Among the most important rights thought to be binding upon the states through Article IV, Section 2 were the Bill of Rights.  18 By 1866 there was a split among antislavery leaders in Congress over the ability of Congress to provide for the enforcement of the Bill of Rights against the states.

The majority's view, represented by Iowa Representative and House Judiciary Committee Chairman James Wilson, was that the precedents finding constitutional power to enforce the fugitive slave laws would also support the enforcement of the Bill of Rights through Article IV against the states.  19 This led to the conclusion that while there had been no enforcement of the Bill of Rights against the states, Congress could provide for such by statute. As Robert Kaczorowki has emphasized, one of the purposes of the Civil Rights Act of 1866 was to provide such enforcement.  20 A minority Republican view, represented by Fourteenth Amendment author John A. Bingham, adhered to the traditional antislavery "non enforcement" doctrine and saw the Fourteenth Amendment as the way to cure this "defect" in the Constitution.  21

Bingham indicated in at least three Fourteenth Amendment-related speeches that it was his intent that the Bill of Rights be enforced against the states.  22 The spokesman for the Amendment in the Senate, Jacob Howard, indicated that among the privileges and immunities of citizens were the Bill and Rights, and he read most of Amendments I through VII on the Senate floor.  23 Neither of these spokesmen was contradicted by any other Representative or Senator.  24

As far as it can be determined, there were only three constitutional law treatises published after the Fourteenth Amendment was proposed but before it was adopted, which also spoke to the question of the meaning of the Amendment.  25 All three of these treatises indicated the Amendment would enforce the Bill of Rights against the states.

It was with the background of this public debate that the court heard the Slaughter-House Cases.

II. OVERVIEW OF THE SLAUGHTER-HOUSE CASES

In 1869, Louisiana gave a private corporation of seventeen individuals an exclusive right to maintain a central slaughter-house south of New Orleans, but all butchers were allowed to use that facility for a fee.  26 The butchers who were not part of the corporation challenged the state's action in federal court. The cases were heard by Justice Bradley and Judge Woods on the Circuit in 1870.  27 Bradley issued two opinions, giving judgment for the butchers challenging the statute.  28

The corporation brought the case to the Supreme Court, where it was first argued on January 11, 1872. Because Justice Nelson did not hear the case, reargument was ordered and the matter was heard again on February 3, 4, and 5, 1873.  29 The corporation was represented by Republican Senator Matthew Carpenter;  30 Jeremiah S. Black, a former Pennsylvania Supreme Court Chief Justice, U.S. Supreme Court Reporter, and Democratic U.S. Attorney General;  31 and Louisiana radical Republican politician Thomas Jefferson Durant.  32 Former U.S. Supreme Court Justice and Confederate Assistant Secretary of War John A. Campbell and Louisiana lawyer J.Q.A. Fellows represented the independent butchers.  33

Campbell's argument before the Court presented arguments based on the common law, and the Thirteenth and Fourteenth Amendments. He extensively traced the history of monopolies in French and English law, often using antislavery rhetoric to argue that monopolies were against English common law and American "genius" and that this monopoly made it "unlawful for men to use their own land for their own purposes."  34 Campbell argued that if the monopoly was not "void at common law, it would be so under both the thirteenth and the fourteenth amendments."  35

Campbell argued that the monopoly created a "servitude" in the feudal sense, which the Thirteenth Amendment prohibited.  36 Campbell felt that "the act is even more plainly in the face of the fourteenth amendment" and that the Fourteenth Amendment was "a more comprehensive exposition of the principles" of the Thirteenth.  37 Campbell maintained that the Amendment "forever destroyed" the states rights doctrine of John Calhoun and worked an "indefinite enlargement" of national authority.  38 Campbell indicated that "State laws must be so framed as to secure life, liberty, property from arbitrary violation and secure protection of law to all" and that this was an effort to guard "the great personal rights of each and every person."  39

Campbell argued that the privileges and immunities of the Fourteenth Amendment were "the personal and civil rights which usage, tradition, the habits of society, written law, and the common sentiments of people have recognized as forming the basis of the institutions of the country."  40 Freedom from monopoly, or the right to pursue a profession, was a privilege or immunity which Campbell sought to bring within the protection of the Amendment.

Campbell's equal protection argument was simply that the seventeen members of the new corporation received benefits that were being denied to the 1,000 other butchers.  41 

His due process argument was that the right to labor was property and the butchers were being deprived of that right without due process of law.  42 Campbell argued that the "police power" could not overcome this constitutional right.  43

A. Justice Miller's Majority Opinion

Justice Miller delivered the opinion of the Court on April 14, 1873, rejecting all of the petitioner's arguments.  44 Initially, Miller pointed to the right of the butchers to continue to work at their trade in the central slaughter-house and concluded that there was no denial of a right to pursue a trade.  45 Quoting Kent's Commentaries for the proposition that slaughter-houses were among "unwholesome trades" which the state could regulate, Miller found the regulations appropriate.  46 

Miller then turned to the Thirteenth Amendment "servitude" argument. Looking to the institution of American slavery and using Chief Justice Chase's Circuit Court opinion in In re Turner  47 concerning apprenticeship as an example of the purpose of the Thirteenth Amendment, he concluded that the servitude spoken of in the Thirteenth Amendment was not of the nature complained of in the case before the Court.  48

Miller next traced the history of the Thirteenth, Fourteenth and Fifteenth Amendments. While admitting that only the Fifteenth Amendment made any reference to race, Miller nevertheless concluded that his "recapitulation of events, almost too recent to be called history" showed that "the one pervading purpose" of these amendments was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizens."  49 Nevertheless, Miller begrudgingly acknowledged that the protection of the Amendments was not limited to African Americans.  50 In discussing the citizenship clause of the Fourteenth Amendment, Miller indicated it was designed to define citizenship for the first time and to overrule Scott v. Sandford.  51 

Miller indicated that "great weight" must be placed upon the distinction between U.S. and state citizenship in Section 1.  52 Miller relied upon Corfield v. Coryell  53 as "the first and the leading case" on the meaning of Article IV, Section 2 and quoted from it extensively.  54 But while Corfield had up to that time been generally understood to protect the rights of national citizens, Miller made it appear that it had protected the rights of state citizens by misquoting both Article IV and Corfield.  55 In this way, Miller concluded that most of the rights of citizens protected under Article IV, Section 2 were state rights, and left very little to be federal rights under Section 1 of the Fourteenth Amendment.  56

Miller suggested a limited number of rights to be protected by Section 1 of the Fourteenth Amendment, each of which was already protected by the federal government and enforced against the states by the Supremacy Clause.  57 Miller held that the rights claimed by the butchers were rights protected by the states and that for them to be privileges and immunities under Section 1 would "radically" change the whole nature of the government.  58 Such a reading would "degrade the State governments by subjecting them to the control of Congress" and make the Court a "perpetual censor" of the states.  59 Because Miller could see no such purpose in the Amendment, he denied the butchers' privileges and immunities claims.

Turning to the due process claim, Miller thought this was the same as that of the Fifth Amendment and in "nearly all" of the state constitutions; the only difference was the federal government was now given the authority to enforce it.  60 In his second paragraph concerning this argument, Miller concluded that "under no construction of that provision that we have ever seen, or any that we deem admissible", could the "restraint" Louisiana placed on the trade of the butchers be a deprivation of property.  61

Finally, Miller turned to the Equal Protection Clause. But here, unlike his treatment of the Reconstruction amendments as a whole and his slavery example, Miller suggested an extreme racial limitation:

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. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.  62

Miller found "no such case" before him.  63

In concluding, Miller noted that the "line" between state and national powers had "never been very well defined in public opinion" and that there were still conflicting views in 1873.  64 In spite of the "pressure of all the excited feeling growing out of the war," Miller concluded that "our statesmen have still believed [in] the existence of the States" and did not mean "to destroy the main features of the general system."  65 Ignoring the "fluctuations" of "public opinion," on this subject the Court had "always held with a steady and an even hand the balance between State and Federal power" and Miller expressed an intent to continue to do so.  66

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III. ANALYSIS OF JUSTICE MILLER'S OPINION

A. Criticisms

Though Miller regarded Slaughter-House as "the ablest opinion he ever prepared,"  123 his craftsmanship has not received high eval‎uations from scholars. Louis Lusky complained about "the shabbiness of the Court's reasoning"  124 and Sanford Levinson has called it "shoddily justified."  125 Walter Murphy contrasted the fact that Miller was "among the most able of judges" with the fact that his opinion was an "intellectual shambles." 126

There are four important difficulties with the Fourteenth Amendment aspect of Miller's opinion:

(1) Miller's claim that the equal protection was directed almost exclusively toward African Americans was historically inaccurate and ignored an obvious reading of the text of the Amendment;

(2) Miller's textual argument, distinguishing between the rights of national citizens and the rights of state citizens, was based upon his deliberate misquotation of Article IV and of the Corfield case;

(3) Miller's discussion of the citizenship clause demonstrated either woeful ignorance or duplicity by failing to discuss the Civil Rights Act of 1866; and

(4) Miller's ultimate justification of his opinion was misplaced.

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V. THE VIEW OF HISTORY: 1873-1949

If, as suggested above, the dissenters were the ones faithful to the intent of the Fourteenth Amendment, one would expect to find evidence of this in the commentary on the cases. The purpose of this section is to examine the work of historians and lawyers from 1873 through 1949  377 concerning the Slaughter-House Cases.

A. General Reaction of the Press and the Congress

The reaction of the press to the decision was mixed. The Nation had reacted to the Circuit Court decision of Bradley and Woods by expressing fear that if it were upheld by the Supreme Court "every moneyed [sic] corporation in the country is in danger of destruction."  378 By the time of the Supreme Court decision many recognized the cases as "among the most important decisions ever rendered by the Supreme Court."  379 After encapsulizing the dissenting opinions, the Chicago Legal News concluded that "the better reason is with the dissenting four of the nine Judges."  380

The Congressional reaction to the Slaughter-House Cases can be seen in the debate over what was to become the 1875 Civil Rights Act. The opponents of the Bill, almost exclusively Democrats, sought to define all the substantive provisions of the Civil Rights Bill as being incidents (privileges or immunities) of state citizenship and therefore outside of the scope of Congress' jurisdiction under the Slaughter-House Cases.  381 Many Republicans conceded the general right of the state to regulate schools, grave-yards, inns, and opera houses, but still insisted upon prohibiting discrimination in that regulation under the Equal Protection Clause. 382 But Senator Frederick Frelinghuysen, a Republican from New Jersey, indicated that he was "aware" of the majority opinion in Slaughter-House, but that the Circuit Court opinion "undoubtedly [gave] the true construction to the amendments as to their application."  383

In the course of Democratic Senator Allen Thurman's argument on the Civil Rights Bill of 1875, Thurman indicated that federal privileges and immunities "must necessarily be derived from the Constitution of the United States," referencing the Bill of Rights.  384 Conservative Wisconsin Republican Senator Timothy O. Howe interrupted Thurman to suggest that Article IV, Section 2 referred to "privileges of citizens of the United States." 385 Similarly, moderate Indiana Republican Senator Oliver Morton insisted that the privileges and immunities of Article IV, Section 2 were identical with those of Section 1 of the Fourteenth Amendment.  386 In the continuing exchange between Thurman and Morton, Thurman admitted that the rights of Article IV, Section 2 were treated as being identical in the Senate, "in this Hall," but argued that they had not been treated as the same by the Court.  387 In response to Thurman's assertion that the Slaughter-House Cases had made "the final determination of what is the law and Constitution of this land" Vermont Republican George F. Edmunds, a member of the Senate when the Amendment was proposed, interrupted from his seat: "I do not admit it."  388

The key framers of the Fourteenth Amendment had left Congress by this time. Death had claimed Thaddeus Stevens and Jacob Howard. John Bingham was denied renomination for Congress and was about to embark upon an ambassadorship. But the "destruction" of the purpose of the amendment was lamented by framers such as Senator George F. Edmunds,  389 Senator Timothy Howe,  390 Senator Oliver Morton,  391 and Senator James Blaine.  392 Former Attorney General Benjamin Bristow thought the Fourteenth Amendment, once the Constitution's "crowning glory" was being "frittered away by judicial construction."  393

B. Legal Commentary

The initial legal commentaries had, of course, indicated that the minority opinion had the better interpretation of the Amendment.  394 Writing in 1878, former Confederate and Democratic lawyer William Royall suggested that Miller's opinion was a result of "alarm at the centralizing tendency of the government" and that while the majority's opinion was "patriotic," it was not "wise" to change the meaning of the Amendment.  395 Instead, Royall argued the Court should have given the Amendment "a literal construction … and leave it to the institutions themselves to cure the evils which flowed from it at the ballot box."  396

Royall thought the need for national enforcement came because states might infringe upon the privileges and immunities of African Americans.  397 Royall thought the minority view presented "with great ability" and the majority interpretation not the Amendment's "primary and most obvious signification."  398

The 1890s was probably the nadir of concern similar to those of the Reconstructionists.  399 Yet during that time John W. Burgess of Columbia would write that the Court in Slaughter-House had thrown away the "great gain in individual liberty" won through the Civil War.  400 Burgess thought the Bill of Rights were the privileges and immunities of natural citizenship and was confident that in the future the Slaughter-House decision would be see as "intensively reactionary" and overturned.  401 Harvard Law Professor James Bradley Thayer thought the Slaughter-House minority "seems to be the sounder."  402 Independent scholars like corporate attorney William D. Guthrie would conclude that the intent of the framers of the Fourteenth Amendment was to incorporate the Bill of Rights.  403

Ohio Congressman Samuel Shellabarger had been a "principal Radical theoretician,"  404 but as early as 1871 he had indicated that he did not "want the full idea of the Fourteenth Amendment interpreted by the old rules of construction."  405 In the memorial services for Chief Justice Waite in 1888, Shellabarger acknowledged that Waite's decision in United v. Cruikshank  406 was contrary to the intent of the framers of the Fourteenth Amendment, but indicated that Waite would still be well thought of by history because "the lapse of years had matured men's views and cooled their feelings regarding the results of the late war."  407 The linkage between an acknowledgment that the Court had refused to enforce "the letter" of the Amendment and a feeling that its action was legitimate because the tumultuous times of Reconstruction called forth no deference is seen in the histories of the Court.

University of Missouri Law Professor Christopher G. Tiedman indicated that if the Court had applied the Amendment's language as written, it would have put an end to "local self-government."  408 The Court avoided that "disastrous result" by its "bold and courageous" decision in Slaughter-House.  409 "The noble fundamental purpose of the Court" resulted in "checking the literal operation of the fourteenth amendment."  410The justification for that action was to keep "the amendment within the limits which [the majority of the Court] felt assured would have been imposed by the people, if their judgment had not been blinded with passion, and which in their cooler moments they would ratify."  411 In explicitly acknowledging that the opinion violated the intent of the people who "ratified" the amendment, and not just the framers, Tiedman wrote:

Feeling assured that the people in their cooler moments would not have sanctioned the far-reaching effects of their action; that they lost sight of the general effect in their eager pursuit of a special end, the court dared to withstand the popular will as expressed in the letter of this amendment …  412

Thus, the Slaughter-House Cases worked "a successful modification of the rule found in the fourteenth amendment."  413

Hampton Carson, writing in 1891, praised the Court as the "great conservative department government" and justified its actions as seen "after the lapse of years, when the temper and spirit in which the text of the Amendments was penned has cooled, and the views of men have matured."  414

The new century brought the work of government reformist Horace Flack concluding that the Amendment applied the Bill of Rights to the states.  415 Even Justice Moody, who refused to follow the intent of the Amendment, admitted that "undoubtedly, [the Slaughter-House Cases] gave much less effect to the Fourteenth Amendment than some of the public men active in framing it intended."  416 

Four years later a source unsympathetic to reconstruction determined that Slaughter-House and Cruikshank "marked the practical overthrow of the Congressional ideal for the Fourteenth Amendment within seven years after its victorious adoption."  417 A year later another commentator wrote that the Supreme Court "began its series of adjudications under the Fourteenth Amendment by substantially repudiating it."  418

Indeed, in his classic The Supreme Court in United States History, 1836-1919,  419 Charles Warren noted that Miller's opinion was "directly contrary" to the intent of the framers of the Amendment and that in its history the Court had, with "very little variation" acted to "controvert the purpose of the Amendment [and] to belittle its effect."  420 Warren welcomed this action by the Court and quoted a portion of Carson with approval.  421

Until 1949 the leading commentaries all suggested that Amendment had been interpreted by the Court contrary to its intent.  422 Thus, for over seventy-five years the major figures to speak upon the Slaughter-House Cases, whether to praise them or to condemn them, consistently indicated that Justice Miller's opinion was contrary to the intent of the Fourteenth Amendment. This history reinforces the view that Miller's opinion was an illegitimate one.

CONCLUSION

This study has shown that there was a clear consensus that the Privileges or Immunities Clause of the Fourteenth Amendment was to have a substantive role. That role was to enforce national privileges and immunities or rights. Those rights, whether examined from a textual, legislative history or policy viewpoint, were chiefly the Bill of Rights. These views were before the public in the debates of Congress and undoubtedly specifically known to the Justices.

When one examines the opinion articulated by Justice Miller to defend the majority decision, one finds the errors so immense and the gap between the intent of the amendment and Miller's ruling so great, that many are willing, on that basis alone, to believe the Miller deliberately attempted to defeat the force of the amendment. An examination of Miller's background suggests that Miller was hostile to the Fourteenth Amendment and the Congress which proposed it. He had the personality to purposely negate an amendment he felt was unwise.

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It has been suggested that the Supreme Court has "compensated" for the loss of this clause by reading some of its purpose into the Due Process and Equal Protection Clauses.  423 Indeed, while Justice Goldberg suggested that the Slaughter-House Cases should be overruled,  424 Justice Douglas indicated that, at least in the Eighth Amendment context, the "result is the same" whether one used due process or privileges or immunities.  425

While the result may be the same in most instances, the proper interpretation of the Privileges or Immunities Clause would change our jurisprudence with respect to the unincorporated portions of the Bill of Rights, primarily in the application of the Second, Third, Fifth, and Seventh Amendments. Further, it distorts our understanding of the Constitution to reach a "correct" result through a forced reading of the Due Process Clause. It makes the Court engage in a decision-making process it knows is wrong, and, thereby, teaches everyone disrespect for the Court and the rule of law.

Justice Bradley's "great question" was "what is the true construction of the [Fourteenth] amendment?"  426 

The Thirteenth and Fourteenth Amendments were designed to establish "universal civil freedom."  427

Justice Harlan's words in the Civil Rights Cases  428 seem equally applicable to Miller's opinion in the Slaughter-House Cases:

The Supreme Court limited the law of freedom "by a subtle and ingenious verbal criticism" which is inconsistent with the "substance and spirit" of the Amendment.  429

FREEDOM: CONSTITUTIONAL LAW: CONSTRICTING THE LAW OF FREEDOM:JUSTICE MILLER, THE FOURTEENTH AMENDMENT, AND THE SLAUGHTER-HOUSE CASES

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This study shows that P&I of 14th amendment plays substantive role, the role to enforce national rights; The proper interpretation of the P&I incorporates the Bill of Rights, and the Due Process Clause makes the Court to engage in a decision-making process.

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Campbell’s argued that
The 13th and 14th Amendments were designed to establish "universal civil freedom."
Based on the 13th and 14th Amendments, he used anti-slavery rhetoric against to the state police-power.
He maintained that the role of 14th amendment was designed to deters the state from enlarging its national authority indefinitely.
Therefore, Campbell argued that the P&I of the 14th were "the personal and civil rights”

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Justice Miller argued the servitude in the 13th was not of the nature complained before the Court.
And 14th P&I rights were to be limited.

While admitting the only 15th amendment refers to race, his main argument is that the recent events, the Civil War, indicate that the only one purpose of the amendments was the freedom of the slaves.

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Nevertheless, in discussing the citizenship clause, Miller begrudgingly acknowledged the amendments was not limited to African Americans; the clause was designed to define citizenship overruling Scott v. Sandford.
(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.)

Furthermore, In Equal Protection discussion, contrary to his slavery example in the 13th amendment (the peonage or the coolie ), he suggested an extreme racial limitation.