I had a pleasant conversation with a new acquaintance at the AHA that turned, at one point, to the merits of the 1873 Slaughterhouse decision.1 Most historians know the case because in it the Supreme Court offers a highly constrained reading of the Fourteenth Amendment‘s critical first section:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Slaughterhouse, the Court says that this passage clearly grants two forms of citizenship, citizenship of the United States and of the state of residence; moreover, the clause protecting citizens from abridgment of their “privileges and immunities” clearly only covers those privileges and immunities people enjoy by virtue of their citizenship in the United States. It does not cover such privileges and immunities as people may enjoy by virtue of citizenship in a state.

And, in case you were wondering, almost all the good privileges and immunities you might want protected, especially if you were a freedman in the South? Those come under your state citizenship. Under US citizenship, the Court had to scramble to find stuff, coming up at last with the right to petition the US government for redress of grievances, to demand its protection on the high seas, and to access its navigable waters.

Indeed, the opinion says, it could not possibly be otherwise. If one accepted the argument for allowing the Fourteenth Amendment to protect people from abridgment of all their rights, it

radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people[.]

Now, you might think that was one of the main goals of winning the Civil War—to radically change the relations of the State and Federal governments to each other, and of both those governments to the people—but never mind.

Anyway, it’s for this part of the decision that most people know Slaughterhouse, and it’s this part of the decision that crops up in later cases when the Court wishes, Pilate-like, to wash its hands of the crimes committed by states against their black citizens.

But there’s a whole other part of the Slaughterhouse case that’s actually about slaughterhouses. The case originated because the state of Louisiana granted a monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company to serve as the abattoir for New Orleans. If you wanted to keep or kill “any cattle, beeves, calves, sheep, swine, or other animals,” you had to do it under the auspices of the CCL-SL & S-H Co. or pay a fine of two hundred fifty dollars. Naturally the city’s butchers sued to protect their right to throw beef kidneys in the public streets.

From the point of view of many legal scholars, this is what Slaughterhouse is really about: the state’s right to regulate the wanton flinging of offal, confetti-like, onto the parade of its citizenry and to prevent the piling of evisceration’s by-products in yards within the city limits to endure the New Orleans weather. In other words, Slaughterhouse protects what’s known as the police power of states—i.e., their power to police activity—and is in fact a decision that buttresses the states’ right to regulate commerce.

So on this view, Slaughterhouse is not so bad, and in fact might seem quite reasonable. You can find this view expressed here.2

But I think it’s a good idea that someone, probably my new acquaintance, write an essay on the case explaining that it can be both bad for civil rights and good for commercial regulation.

1Yes, some people give you gossip, I give you reports of intense chats about SCotUS history. Also, I know the link says this is an 1872 case. I’ve generally seen it cited as an 1873 case. It was, according to Lexis, reported April 14, 1873 and decided December, 1872.

2You can find my view, as of 2007, of this view here, and I excerpt part of it below.

When Congress began drafting the Fourteenth Amendment in 1866, it was already fighting a rearguard action for its version of Reconstruction. The amendment came before Congress along with civil rights legislation, which in turn came before Congress because southern whites were busily terrorizing southern blacks, encouraged by a less-than-vigorous presidential Reconstruction policy. The framers of the Fourteenth Amendment sought to reverse this course, changing the Constitution to say that the United States after the Civil War was going to be a different country than it had been before the Civil War, and that specifically, the country’s approach to protecting the rights of its citizens would rest on the ultimate authority of the federal government to intervene as and when the states had failed to protect those rights.

By the time the Supreme Court gave its attention to a reading of the Fourteenth Amendment in 1873, civil war had nearly resumed in some parts of the South and the federal government had passed a set of laws to frustrate the Ku Klux Klan and similar conspiracies to deprive citizens of their rights. In the elections of 1872, a noticeable minority of Republicans gave notice they wanted no part of such efforts. It scarcely seems possible that a Court asked under such circumstances to construe the Fourteenth Amendment should omit to consider how its reading might affect Reconstruction, but that is the essential contention of Ronald M. Labbé and Jonathan Lurie, authors of the “Landmark Law Cases” volume, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment. They reach this conclusion by focusing on the actual matter under dispute in the case, the laws regarding New Orleans’s butchering industry.

Considered from this angle, the Court was working within an established tradition. As Labbé and Lurie note, “[i]n his outstanding study The People’s Welfare, Professor William Novak cites Commonwealth v. Alger (1851) . . . as the prototype for police power decisions. It . . . accurately articulated a vigorous and expansive police power doctrine,” one that permitted states to limit the enjoyment of private property in the community interest. Slaughterhouses most definitely—as Labbé and Lurie establish in vivid detail, explaining enough about offal to engage even the reader generally unmoved by accounts of municipal codes—affected the community interest. Thus the state of Louisiana could certainly regulate the butchers of New Orleans, establishing a single abattoir, without violating the meatcutters’ rights. It was a long-established solution to the public-health problem of slaughtering livestock in urban areas. “In short,” Labbé and Lurie write, “. . . [h]owever heated, the New Orleans drama was a rerun, not a new production.”

The discussion of the police power, urban reform, and the butchers’ trade is convincing enough—but if Slaughterhouse were only about slaughterhouses, it would never qualify as a Landmark Law Case. It is usually understood to be important because in it the Justices gave the Fourteenth Amendment a straitened interpretation that rendered large parts of Reconstruction policy unconstitutional. Justice Samuel Miller’s opinion held that when the Fourteenth Amendment declared that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” it covered only a narrow set of privileges and immunities—the rights, for example, to protection while at sea, or to petition one’s Congressman—but not any of the broader, Bill of Rights-style rights. Were it otherwise, Miller argued—were it the case that the amendment meant “to transfer . . . all the civil rights . . . from the States to the Federal government,” then “it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.” One might reasonably conclude that the winners of the Civil War had meant to do just that, on the understanding that the prior theory had not worked particularly well. Nor would one be exercising some anachronistic, post-Warren Court view. In 1874, John Norton Pomeroy wrote that Miller’s reading of the Fourteenth Amendment “contradicted at once the meaning of language and the facts of history,” and in 1879, “a critic wondered what fiery old Thaddeus Stevens’s reaction would have been if told that all he had intended to secure through that clause were the rights of ex-slaves to protection on the high seas, to travel freely between States, or to petition the government.”

To Labbé and Lurie, it is only “ironically” the case that this interpretation of the Fourteenth Amendment “would later deprive the freedmen of any of its protections,” just as it is “another twist of Slaughterhouse irony” that Miller later concurred in rulings that used the due process clause of the Fourteenth Amendment “against the regulation of business.” Other scholars have been less sure that this dissonance resulted from irony. Richard L. Aynes writes, “there is simply no principled basis for Miller’s opinion,” that it can only be understood with reference to Miller’s politics and those of the other Justices hostile to the project of Reconstruction.

But it is hard to argue that Labbé and Lurie are even wrong about this. They treat Reconstruction as, properly understood, irrelevant to Slaughterhouse, and Slaughterhouse properly understood as irrelevant to the end of Reconstruction. “To argue that that the Slaughterhouse Cases must be seen in the context of racial Reconstruction is to miss the point. . . . Miller’s Court had no inkling at the time that Reconstruction would wither.” They emphasize instead the upholding of the state’s police power—the part of the decision that might qualify as good law—at the expense of examining what makes the case great.

If it is true that the courts’ support for the states’ police power represents an important and unfortunately neglected aspect of judicial and political history, it seems nevertheless that the courts’ support was inadequate. As strong as the police power might have been, there is a prima facie case that it was not strong enough: Americans kept supporting more regulation in the interest of the public welfare than the Courts would allow. As innocent as Slaughterhouse might have seemed of anti-Reconstruction intent, it turned up in decisions, like United States v. Harris, meant to destroy civil rights law and, as the authors of the Brown volume note, the Fourteenth Amendment only partially survived these readings.