The Slaughterhouse Cases

Index to posts in this series

Chapter 4 of The Second Founding by Eric Foner lays out the campaign of the Supreme Court to strangle (my word) the Reconstruction Amendments. The last chapter is the requisite effort to show how things can get better.

I think there’s more to be gained by reading the main decisions on the Reconstruction Amendments, so I’m going to depart from Foner’s text at this point. I think we will see that SCOTUS today uses the same tactics to strike down laws and ignore precedent. I’ll start with The Slaughterhouse Cases, 83 US 36 (1873). The syllabus takes up the first 20 pages; the opinion begins at 57.

Facts. The butchers of New Orleans were scattered across the city. They brought animals for slaughter from the river and train stations to their shops, and threw the offal and scraps into the Mississippi. This was a public nuisance and a health issue.

Louisiana passed a law creating a special corporation charged with building landings and railroad connections to a new set of slaughterhouses in a single location outside the city. The law gave the corporation an exclusive license, required the corporation to lease space to all comers (including Black butchers) for slaughtering operations, set price limits, and required space for a medical officer to check animals and meat for disease, among other things.

Holding. The Supreme Court upheld the statute in a 5-4 decision. The principle ground of the majority opinion is that the law was within the police power of the State. The police power is a legal term describing the power of the state to secure the “the health, good order, morals, peace, and safety of society”, as the dissent puts it. P. 87.

This case could have been decided solely on traditional police power lines, even if the Louisiana law was too broad. But the Court felt it should write about the Reconstruction Amendments, which were a significant part of appellate argument. So the Court ignored the principle of Constitutional Avoidance, the idea that a case should not be decided on constitutional grounds if some other ground is dispositive.

The discussion of the Reconstruction Amendments begins on P. 66. Samuel J. Miller, a Lincoln appointee, gives a brief history of the Civil War and the Reconstruction Amendments. He writes that the purpose of these amendments was to secure

… the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. P. 71.

The Court goes on to say that the amendments apply to everyone, but to construe them fairly the Court has to consider their “pervading spirit” and the evils to be remedied, and their purpose. This is what Justice Ketanji Brown Jackson is talking about in Allen v. Milligan, the Voting Rights Act case from this last term, and in SFFA v. Harvard, the affirmative action case.

Miller then discusses the 13th Amendment at length. Then he turns to the 14th Amendment.

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.

Miller explains that this clause was intended to overrule Dred Scott. Then he says:

… the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.


It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. P. 73-4.

The second sentence of §1 says:

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.

This means, Miller says, that the US can make laws affecting the privileges or immunities a person holds as a citizen of the US, and can protect those rights from state interference. But the 14th Amendment doesn’t give the Federal government the power to control or create the rights granted a state gives to its citizens.

There are very few privileges or immunities of citizens of the US. They are in the text of the Constitution, or the Bill of Rights if the Supreme Courts finds they are. They include protection against ex post facto laws and bills of attainder, and protection on the high seas, and not much else.

What are the privileges or immunities of citizens of states? Miller says they encompass “… nearly every civil right for the establishment and protection of which organized government is instituted.” P. 76. The sole point of the 14th Amendment is to guarantee that all such rights granted to citizens of the state are granted to all citizens within its jurisdiction equally.

Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. P. 77.

Miller claims that other construction would enable the federal government to control the exercise of the power of the state to make laws they think best, and set the Supreme Court up as the ultimate arbiter of the powers of states to pass laws. That would change the entire theory of government in this country. It that was the goal, the drafters of the 14th Amendment would have to use “… language which expresses such a purpose too clearly to admit of doubt.” P. 78.

Miller says that the states can enact any law they like, so long as the laws don’t discriminate against Black people as a class. P. 81. He doubts that the 14th Amendment could ever apply to anyone besides Black people.

The opinion concludes with a reminder that the Founders were worried about federal encroachment on state power, and claims that the Supreme Court “…has always held with a steady and an even hand the balance between State and Federal power….”. P. 82.


1. This case shows the disaster that can arise when SCOTUS gives advisory opinions. There is a huge middle ground between Miller’s cramped reading of the 14th Amendment and the Appellant’s broad view. The opinion establishes a powerful limiting principle: that the purpose of the Reconstruction Amendments is to secure and protect the Freedmen and Black people. It would meant that the federal government can intervene to prohibit actual discrimination against Black people, and generally everybody, but it can’t intervene just because it doesn’t agree with the state’s decisions about privileges and immunities equally applicable to all citizens. That was a perfectly likely outcome in a proper case, a case where a state, for example, barred Black people from testifying against White people.

2. The Appellants were trying to stop state regulation of their businesses. They claim they have an
unfettered right to do business wherever and however they see fit, and that the 14th Amendment protects their exercise of that right. They didn’t win this case, but the idea persisted, and a form of it eventually was adopted by the Supreme Court, as seen in cases like Lochner v. New York.

3. There’s a tendency today to say that SCOTUS, a once-respected institution, has suddenly collapsed in a mixture of partisanship and hubris. Maybe we should ask when that wasn’t the case.

19 replies
  1. jdalessandro says:

    It was ever thus, starting with Marbury v. Madison, no? Arrogating power to themselves, beyond the scope of the controversy presented to them, frequently for self-serving reasons. As has been pointed out numerous times, other advanced countries do just fine without a Supreme Court, but that scares most Americans. Term limits is doable, though. Just not right now.

    • earlofhuntingdon says:

      Horse pucky. A few minutes on the Internet would demonstrate that virtually every country, whether it uses the civil code, common law, communist, or Islamic legal system – the four principal global legal systems – has a judiciary and supreme court.

      • jdalessandro says:

        That’s not what I said. Obviously even Hitler and Stalin had judiciaries. The question is whether the Supreme Court as it has evolved in the US – an institution which provides so many opportunities for abusive power-grabbing — is the only alternative in a constitutional system. Check out Finland, for example.
        I really regret opening my mouth because its off topic and derivative. Mr. Walker’s series is excellent, and I look forward to the remainder of it.

        • bmaz says:

          When you are invoking Hitler and Stalin, you ought stop in your tracks. If you do not, you will be stopped.

        • earlofhuntingdon says:

          You said this, which is what I was responding to:

          “As has been pointed out numerous times, other advanced countries do just fine without a Supreme Court….”

          Now you say this is what you meant:

          “The question is whether the Supreme Court as it has evolved in the US…is the only alternative in a constitutional system.”

          That’s entirely different. Commenters rely on what you write, not what you intend. Also, the First Rule of Holes.

  2. jdalessandro says:

    My mundane comments about Marbury being viewed by many [starting with TJ] as a grab by Marshall for unchecked power to declare unconstitutional the acts of Congress or the president, [which was beyond what was necessary to resolve the controversy before the court], is sufficient to get the gas station dog sicced on me? I am clearly not worthy. A million thank yous. I hope someone more worthy of your steel checks in soon.
    Imagine if I had made fun of Jagger’s dancing like a chicken.

    • earlofhuntingdon says:

      You’re not a victim. Each comment pretty much stands on its own, but patterns emerge that can effect your credibility. Your first comment incorporated a common opinion about M v. M, but tied it to easily debunked bad facts. You can do better.

    • wasD4v1d says:

      While it is true the Constitution made no explicit provision for determining the constitutional conformance of legislation, I’m not sure that the Court’s assuming that role was arrogating. The Court was the most logical – even obvious – candidate to fill this need, and it has been accepted as such ever since (except when your position is losing).

  3. rattlemullet says:

    Thank you for this discussion. I think your point 3 is correct the SC has always been partisan to some degree by virtue of the president that nominates them. Washington appointed 14 justices this being unique for obviously reasons. Jackson, Tyler, Grant, and Roosevelt each appointed 8 surely they used the opportunity to shape the court in accordance with their political leanings as Im sure most presidents did. I do think however the SC has become more partisan with the rise of the shadow docket being used more since the middle 80’s when the SC ceased to formally adjourn during the summer. Examples would include of late the Roman Catholic Dioceses of Brooklyn v Cuomo, John H. Merrill, Alabama Secretary of State. Evan Milligan, and Louisiana V. American River to name a few. These were I believe highly partisan decisions. Many shadow docket cases are issued with out explanation or an openness at all.

      • David F. Snyder says:

        Excellent book: well-written, objective, and sobering. Thanks for recommending it here in this blog earlier this year.

      • rattlemullet says:

        I will, I did get the opportunity to listen to his interview on NPR, remarkable in my opinion.

  4. Attygmgm says:

    Ed’s series is very much appreciated, as is Eric Foner’s book.

    Every appellate court has a certain latitude to simply invent the facts and the concepts they desire to use. Such as the “major question doctrine” the USSC recently came up with to limit agency powers. Such as “qualified immunity” in civil rights challenges to how the state exercises police power. Sometimes from the advocate’s inside knowledge of a case those appellate leaps away from the actual record to what the court wants the record to be are breathtaking. And extremely annoying.

    One of my law professors referred to such distinctions as “slicing the salami thinly.” Which CAN refer to a careful and legitimate consideration of various parts and shades of distinction involved with a comprehensive legal theory. After all, every cherished legal principle was once a mere theory in an advocate’s mind. Such as the Supreme Court allocating to itself in 1803 (in Marbury v. Madison) the role of final arbiter on what is and is not Constitutional. Or the rationale in Gideon v. Wainwright that a criminal defendant should be entitled to counsel even if he or she is unable to afford counsel. A coherent and explainable rationale can be built for a given theory under a system that divides governmental power and grants rights to individuals.

    But what some find persuasive others do not. Over time theories can be abandoned when the distinction are unpersuasive. They seem weakest when they seem to be result driven — such as the critique used in Shelby v. Holder to gut the pre-clearance required in Section 2 of the Voting Rights Act. Or how the right of privacy was removed last year when Roe v. Wade was overturned.

    It is maddening when a court adopts what looks like a thinly veiled rationale to achieve a certain result. At the end of the day, what matters most are elections as the way to direct how the country moves in the long term. The 2016 election has given us a USSC vastly different from how it would otherwise look had three justices been appointed by a Democrat. Respect to Leonard Leo and Mitch McConnell, who in my view are diabolical but who for many are saints for capturing the court in service of a long-held plan of the political right.

    As it must have seemed to many when the Slaughterhouse cases were decided, it seems pretty certain that the rest of my career as a lawyer will face court decisions I will not like. My hope is that the Leo-McConnell era can be overcome as quickly as possible by voters in repeated elections. It will be a long road to a slow turn, if we get there at all. “Progress” is measured in the smallest of increments, and goes forward as well as backwards.

    This website is an incredibly valuable place for both the big picture and the day to day movement on these competing pathways, and for each push and pull over where the next footfall will land us collectively on the path forward. That it exists is deeply appreciated.

      • Artemis Prime says:

        Agree with bmaz that this is an excellent comment. Can I come to one of your lectures? I think your comment might actually be interesting to expand into a guest post on the history of SCOTUS/politicization/legal theories? Bmaz also never gives compliments, so this is a huge honor! He reminds me of one of my toughest professors when I was a grad student, so I always pay extra attention when a compliment comes out of his mouth. Also agree that this is such a valuable, important place. This is going to put me in a good mood for the rest of the day.

    • Ed Walker says:

      This is an able defense of the current system.

      These Reconstruction Amendment cases led directly to Jim Crow laws and left Black people at the mercy of lynching and marauding mobs well into my lifetime (Emmet Till). Was waiting for elections worth it?

      • Attygmgm says:

        I suspect my assessment of the Reconstruction Amendment cases is as dismal as I imagine yours to be, Ed. The court that produced them is hardly to be admired. Especially given what you rightly observe were the long-term consequences. The court’s latitude, which I’d say was abused in those cases, could have been restrained by more action from Congress, but that would have required then, and requires still, a consensus among voters that only elections with sustained results would achieve in who gets sent to Congress and what Congress chooses to address.

        Which didn’t happen then, and more’s the pity for the country that a century of abuse by different mechanisms ensued before even some of it got addressed. A case can be made that we aren’t that far removed from Plessy v. Ferguson, even though we’ve moved a LITTLE.

        Trying to describe how the appellate courts sometimes work, or rather fail to work, is certainly not intended to defend the mechanism of that failing, or the tedium of the fix. Knaves will always be at the ready to twist and blunt every effort at progress. But of course for those knaves who want less, I am the knave for wanting more.

        Legislation, always a function of compromise, is always frustratingly slow and incomplete. Occasionally in a courtroom one gets to really fix a tiny part of a given problem through a jury verdict, no compromise needed. Those instances are rare.

        Overcoming what I would call a recalcitrant or outrageous Supreme Court (and others would call a properly restrained Supreme Court), relies on Article 1 fixes, meaning elections, and the “slow boring of hard wood” rate of getting such things implemented by half loaves.

        Having a court that has available to it inventions of its own design that can require a given fix to be done more than once is as annoying and dispiriting as it can be.

        The breadth this website offers, from Marcy’s incredibly detailed work on nuances that might otherwise go unobserved, to the astute observations of current events from Rayne and Bmaz and other regulars, to the able commentary from so many readers whose thoughts I have learned to look for, to the big picture topics and informed history Ed has addressed in recent months, are what make this site a daily read for me and many others. The humor, the snark, the recipes, the doggerel — all bonus flavorings to incredibly hearty fare served day after day, week after week.

        Getting to a more perfect union ain’t easy. Having a place like this to go to draw upon makes it easier. I have no higher compliment to give. The work product displayed on this site is excellent.

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