A review of The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment , by Ronald M. Labbé and Jonathan Lurie

In 1873, a dispute over state regulation of the Louisiana beef industry gave the United States Supreme Court its first opportunity to interpret the newly ratified 14th Amendment. The Slaughterhouse Cases, as the decision came to be known, has been a source of controversy ever since. It remains standing law today, affecting the lives of all Americans, although, as Justice Clarence Thomas recently put it, legal scholars agree only on one thing: Slaughterhouse was wrongly decided. Yet despite its importance, and the controversy surrounding it, the decision has never been the subject of a book-length treatment until now. 

Unfortunately, while Ronald Labbé and Jonathan Lurie show considerable skill at unraveling the complicated web of legislative history, lawsuits, and countersuits, they miss many important details of constitutional history, and ignore the most fundamental issues involved in Slaughterhouse. They focus their attention on the importance of sanitary reform in the 19th-century slaughtering industry. But while this is certainly relevant, it does little to enlighten readers on the decision's importance or validity. In fact, Labbé and Lurie's description of Justice Samuel Miller, who wrote the decision, unwittingly points to the flaw in their own work: "Possibly because he lacked judicial experience," they write approvingly, his "opinions reflected a pragmatic approach to problems rather than a strictly logical application of legal doctrine." The same can be said of their book. 

Ratified in 1869, the 14th Amendment prohibits states from abridging the "privileges or immunities" of citizens, or depriving them of the "equal protection of the laws," or "due process of law." The Amendment's sponsors—particularly Representative John Bingham and Senator John Sherman—intended the "privileges or immunities" clause to protect the natural rights and common-law rights of all Americans. Among these, Bingham said, was "the liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." 

Then came the Slaughterhouse Act of 1869. Responding to pressure to clean up the city, the Louisiana legislature limited all butchering operations to a central abattoir, owned by a private corporation called the Crescent City Company. Hundreds of butchers immediately filed lawsuits, arguing that the Act created a monopoly and violated their right to earn a living. Public health was merely a pretext, they claimed; if that were really the motive, the law would have limited the places where slaughtering could be done, or placed the abattoir under government control, rather than giving the entire slaughtering trade to a single, for-profit company. 

The Supreme Court was not persuaded. The 5-4 decision held that the privileges or immunities clause protected very few rights, and the right to earn a living was not among them. The clause was not intended, Justice Miller wrote, "to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government." Miller provided no evidence for these claims. Instead, he distinguished between the rights appertaining to federal citizenship and those derived from citizenship in a state. "It is only the former which are placed by this clause under the protection of the Federal Constitution." Since for Miller the right to earn a living was attached to state, not federal, citizenship, the clause did not protect it. It only protected rights enunciated in the federal Constitution, such as traveling to Washington, D.C., and petitioning Congress. 

In dissent, Justice Stephen Field reviewed the history of the right to earn a living, connected it explicitly with the Declaration of Independence, and noted that the Court's opinion rendered the clause redundant: the Supremacy Clause already protected federally-created rights, so "no new constitutional provision was required to inhibit such interference…. But if the amendment refers to the natural and inalienable rights which belong to all citizens, [it] has a profound significance and consequence." Miller's opinion, he predicted, would render the clause "a vain and idle enactment." He was correct. What was intended as the primary protection of liberty under the 14th Amendment was totally deflated—between 1873 and 1999, the Supreme Court never relied on it. Instead the Court began protecting unenumerated rights under the "due process" clause, to restore some ambiguous balance.

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Slaughterhouse remains important to Americans today because it's the dog that didn't bark. States now routinely establish monopolies on the flimsiest of pretexts. Without the protection of the privileges or immunities clause, entrepreneurs are constantly exploited by the state for the benefit of a favored few. Labbé and Lurie mention few of these considerations. Although they carefully describe the background and passage of the Slaughterhouse Act, they do not describe the background or passage of the 14th Amendment. There is no mention of the myriad cases which, before 1873, upheld the common-law right to earn a living. Instead, they suggest the dissenters simply invented this right to serve their political agenda, and even hypothesize—with little evidence—that John Campbell, the butchers' attorney, concocted his argument as a ruse to destroy Reconstruction itself. Yet while Slaughterhouse did indeed curtail federal power to protect the freed slaves—by rejecting Campbell's argument—the authors describe the ruling as having actually "endorsed" Reconstruction! This statement is almost as absurd as their claim that the Slaughterhouse Act was "consistent with the early-nineteenth-century ideological penchant for limited government." 

Scattered among the pages are other indications of a refusal to take the legal issues seriously. Without substantiation, they characterize the butchers' arguments as "clever and cynical"; they claim that "congressional debates concerning the new amendment's scope provided little vindication" for the butchers' arguments—but quote these debates only in a single paragraph (which actually supports the butchers' arguments). They assert that Chicago v. Rumpff, a case on which the butchers strongly relied, was "a decision based on notably bogus reasoning," but provide no real argument for this; they claim that the 14th Amendment was "adopted with altogether different purposes in mind" than protecting the butchers—even though in their single paragraph on the intent of the Amendment's drafters, they quote Lyman Trumbull, John Bingham, and Charles Sumner, who all said the Amendment was meant to be read expansively. They never mention John Sherman at all, or the anti-monopoly tradition which only twenty years later would climax in the passage of his Antitrust Act. 

The authors also neglect the Slaughterhouse Court's more fundamental mistake: the fact that the Court ignored the way the 14th Amendment changed the federalist structure. The original Constitution never defined citizenship, but the new Amendment explained that "all persons born or naturalized in the United States…are citizens of the United States and of the state wherein they reside." This reversed the old order whereby states determined citizenship, with American citizenship derived from that. Now, national citizenship was clearly primary. This was consistent with the Republican Party's view that American sovereignty, and the rights protected by it, were vested not in individual states, but in the United States as a whole. This was why Lincoln thought the union indissoluble. 

Although this view had been hotly contested—indeed, had resulted in civil war—it was the Republican winners of that war who drafted the 14th Amendment, to confirm the national basis of liberty, and protect it from state interference. Americans' common-law rights, including the right to earn a living, derived from their partnership in the "one people" of the Declaration; thus Senator Sherman explained that courts interpreting the privileges or immunities clause would "look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers to the Declaration of American Independence, to every scrap of American history, to the history of England, to the common law of England…. There they will find the fountain and reservoir of the rights of American as well as English citizens." So while Justice Miller was right to distinguish between federal and state citizenship, his claim that the right to earn a living was among "the class of rights which the State governments were created to establish and secure," ignored the point of the 14th Amendment. He denied out of hand that the Amendment was intended to alter federalism—something that was palpably and obviously true. But Labbé and Lurie do not fill this gap—or even pause to notice it. 

Worst of all, they fail to address something 19th-century judges would have taken very seriously: the purpose and limits of government. In the state of nature, Madison wrote, "the weaker individual is not secured against the violence of the stronger." Government remedies this by subjecting all to law, so that the stronger and weaker must work out their differences peacefully. Nevertheless, strong factions might try to use the government itself to oppress the weak, so "you must first enable the government to control the governed; and in the next place oblige it to control itself." One faction might try to increase its wealth by legally prohibiting competition from others, but this monopoly would harm the consumer—through higher prices—and laborers, who would be put out of work. This unjustifiable use of force would contradict the purpose of government, even in the absence of specific constitutional prohibitions. As the Supreme Court explained only two years after Slaughterhouse, "to lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law." But when Labbé and Lurie quote the butchers' lawyers making this point—"When 'you tell me that I cannot use a portion of my property at my home…that I must for the profit of a company lately incorporated, place it in their possession and under their control, under a tariff of prices fixed, not by me, but by a corporation, I say that it imposes upon me a servitude'"—they reject it without even discussing the matter, as if its wrongheadedness were self-evident. 

Recognizing that government could not legitimately take from some and give to others was fundamental to obliging government to control itself. Yet nineteenth century jurists found some kinds of monopolies unavoidable: so-called natural monopolies, for instance, such as turnpikes and railroads, were generally created by issuing monopoly charters to private developers. To prevent the state from using these charters to grant "naked preferences" to a few on the basis of their raw political power, courts regularly required them to include certain conditions: for instance, that the railroad must not refuse to carry any passenger, or that its rates would be set by government. This ensured that natural monopolies served the public rather than the private welfare, a point Justice Field made in his dissent: "the grant, with exclusive privileges, of a right" to build a railroad or other natural monopoly, "is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life…." The slaughterhouse monopoly was the latter; entirely created by the government, allegedly to protect public health. This rationale was questionable, since it was in no way advanced by giving the ownership of the central slaughterhouse to a private corporation; even Labbé and Lurie confess that "the same goal could have been achieved with less controversy by granting the franchise to a consortium of butchers or to an agency of the state, but the Louisiana legislature of 1869 chose to do otherwise." 

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But this begs the question, since the whole point of the Slaughterhouse Cases was: did the 14th Amendment permit the legislature to "do otherwise"? The common law, the intent of the Amendment's framers, previous interpretations of the phrase "privileges and immunities," and the Anglo-American anti-monopoly legal tradition all suggested that the answer was no. But Labbé and Lurie consider none of these things. Indeed, they overlook the distinction between natural and artificial monopolies entirely, when they dismiss Field's statement that each person has an equal right to earn a living without unreasonable interference. 

It's ironic that Labbé and Lurie start out by urging readers not to see the past through modern eyes. Their repeated defense of the policy behind the Slaughterhouse Act, and their silence on the legal issues, shows that they read Slaughterhouse through the lens of the outcome-based constitutional assumptions prevalent since the 1930s. By not facing the legal arguments, the authors fail to explain the Slaughterhouse Cases at all. Even the few who think the decision was correct will find this book of little help in supporting that argument.