Ronald M. Labbé and Jonathan Lurie.
The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth
Lawrence: University Press of Kansas, 2003. xiv + 295 pp. Illustrations,
appendix, bibliography, index. $34.95 (cloth), ISBN 0-7006-1290-4 .
Michael A. Ross.
Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court
during the Civil War Era.
Conflicting Worlds Series. Baton Rouge: Louisiana State University Press,
2003. xxii + 323 pp. Illustrations, notes, selected bibliography, index.
$69.95 (cloth), ISBN 0-8071-2868-6 $24.95 (paper), ISBN 0-8071-2924-0 .
Pamela Brandwein, University of Texas at Dallas.
Slaughter-House Cases Be Saved from Its Critics?
Dispute has been no stranger to the Slaughter-House
Cases, the Supreme Court's first major interpretation of the
Fourteenth Amendment. In rejecting a claim by white butchers that a
Louisiana law deprived them of their right to pursue a trade, the majority
opinion of Justice Samuel F. Miller restricted the scope of the newly
enacted Amendment, narrowly defining the rights of national citizenship.
Since the Second Reconstruction, Miller's opinion has spawned an enormous
literature and inspired the derision of critics. A glance at the legal
historiography of Reconstruction confirms the multiple charges against
Miller's majority opinion: it upheld a monopoly established by a corrupt
legislature, it defied Republican intent to secure national protection for
citizenship rights, it embodied negligence if not malevolence toward the
freedmen, and it began the judicial retreat from Reconstruction.
In two new books, appearing coincidentally at the same
time, Ronald Labbé and Jonathan Lurie, and Michael Ross, reevaluate this
familiar, negative view of the Slaughter-House Cases. They situate
the case within its social, political, and economic contexts, aiming to
build a new angle of vision on Miller's infamous opinion.
The results, in many ways, are stunning. Those who have
long viewed the decision as retrograde are in for a few surprises. The
Court's approval of an exclusive franchise that required butchers to do
their slaughtering at a central facility looks reasonable in light of
awful health conditions, prior regulation in other cities, mid-century
police power doctrine, and the state's dire financial circumstances.
Justice Miller, furthermore, looks to be a racial moderate in light of his
contempt for recalcitrant white Southerners, his condemnation of
unpunished violence against blacks in the South, and his support for
blacks' civil and political rights. What, then, was Miller doing when he
constricted the meaning of the privileges or immunities clause?
The Slaughter-House Cases is more complex than
scholars have imagined. While these books will not settle debate over this
pivotal case, they shift the parameters of that debate. They leave us with
new questions and new puzzles. Given the institutionally routine
condemnation of Slaughter-House among liberal scholars, that is
quite an achievement.
The job of rehabilitating the Slaughter-House Cases
can be broken down into two distinct tasks. The first task is defending
the Court's reading of the privileges or immunities clause, i.e., its
notorious distinction between state and national citizenship, which was
not necessary to the holding. The second task is defending the
reasonableness of the slaughterhouse law at issue in the decision.
With regard to the first (and much harder) task, Ross is
far more successful than Labbé and Lurie, though there are some sticking
points in his intriguing and provocative argument about what Miller was up
to when he narrowly defined the rights of national citizenship. Before
getting, however, to the combustible issues involved in each book's
reinterpretation of Miller's narrow definition of national citizenship,
the success of both books in arguing for the reasonableness of the
law deserves some comment.
The slaughterhouse law, as many readers will already know,
granted an exclusive franchise to a slaughtering company and required
butchers to do their slaughtering at this central location, paying a fee
set by the legislature. Scholars have frequently taken a cynical stance
toward the public health rationale for this law, viewing it as a disguise
for monopoly established by a corrupt legislature.
Labbé and Lurie and Ross have a common antidote for
scholarly cynicism about the public health rationale for the law:
descriptions of the abysmal sanitary conditions of New Orleans.
Slaughterhouses, we learn, were located in the city's most populous areas,
operating alongside crowded tenements, businesses, hospitals, and schools.
As New Orleans had no public sewer system, butchers emptied the waste of
butchered animals into the streets and the
River, which supplied the city's water. The authors' descriptions of
rotting entrails and animal feces overflowing the city's gutters and
accumulating on the riverbanks leave a lasting impression, as do their
references to the continual outbreaks of cholera and yellow fever.
Clearly, there was a health problem.
But why did the legislature address this problem by
granting an exclusive franchise to the Crescent City Live-Stock Landing
and Slaughtering Company? This looks suspicious. Ross provides one answer,
pointing to the post-war state of Louisiana's economy. "With the economy
prostrate and many whites simply refusing to pay taxes to the
Reconstruction government, tax revenues slowed to a trickle" (p.194).
Further, as Louisiana's credit rating plummeted, the option of financing a
slaughterhouse through state bonds evaporated. The exclusive private
charter, which relieved the State of the burden of funding the
slaughterhouse, was its response to this lack of capital.
This argument is augmented by Labbé and Lurie, who show
that the idea of centralizing slaughtering was not new to
They devote a chapter to charting the struggle to rein in slaughtering
that accompanied urban expansion in cities such as New York and Chicago.
By 1869, when the Louisiana legislature enacted its centralizing law, "the
problem of slaughterhouse reform had been discussed, debated, and
evaluated from virtually every angle for more than a generation" (p. 65).
The legislature's appeal to the police power, furthermore, was
conventional. In mid-nineteenth-century American law, the dominant view
was that the police power applied to the regulation of slaughterhouses.
In countering the charge that the exclusive franchise was a
monopoly, both books also note the restrictions imposed on the company. It
was subject to fines if it did not provide adequate facilities for all who
desired them and it had to submit to sanitary inspections. And the
butchers, it turns out, had resisted health regulations and operated an
informal monopoly for years, conspiring to inflate meat prices. The
tightly knit community of butchers had also driven off black competitors.
Indeed, the legislative franchise undermined the butchers' control of the
trade and lowered the capital requirements to enter the trade, thus
opening the trade to blacks.
Ross's discussion of the popularity of the
monopoly/corruption charge is also especially noteworthy. While no hard
evidence of corruption has ever surfaced, even if bribery had occurred, he
notes, legislative corruption was common in Louisiana and usually provoked
little public outrage. The butchers' vigorous resistance to the law and
their embrace of the monopoly charge made sense because they had grown
accustomed to a completely unregulated business environment. But why, asks
Ross, did white New Orleans enthusiastically accept the corruption charge
and rally around the butchers, who were "unsympathetic protagonists at
best" (p.197)? The reason, he argues, was a deep hatred of the biracial
legislature that was rooted in white supremacist beliefs. Indeed, as
Ross explains, "Louisiana newspapers issued a racial call to arms, urging
citizens to fight any and all acts passed by the legislature" (p.196).
residents owed better health to the Yankees, they were not about to
In locating the origins of the widely popular corruption
charge in political and racial resistance to the Reconstruction government
of Louisiana, Ross lays out a perspective that may startle contemporary
readers: the holding in the Slaughter-House Cases supported
Reconstruction and the biracial legislature. Had the Court ruled against
the slaughterhouse law, Ross comments, "it would have supported the
Reconstruction legislature's critics who alleged that blacks and Yankees
were either too ignorant or too corrupt to adopt legislation that could
pass constitutional muster."
These books make a compelling case that the public health
rationale was genuine and that the charges of corruption and monopoly were
misplaced and misleading. Indeed, these books provide a much-needed
reminder that Reconstruction was not only about black rights but also
about modernization and northern-style public improvement projects. As
these authors emphasize, the Court's support for Louisiana's effort to
modernize sanitation was support for Reconstruction.
One wonders, then, how legal scholars came to accept the
charges of corruption and monopoly if they were unwarranted. Labbé and
Lurie offer the insight that when the slaughterhouse law is viewed in the
context of Reconstruction history "that emphasizes the negative aspects of
that era, it becomes easy to dismiss the statute ... as a product of a
corrupt, reconstructed Louisiana legiislature" (p. 3). This suggests that
there are surviving vestiges of old Reconstruction history, dating to the
Progressive era, that are influencing contemporary perspectives on
Indeed, the exclusive franchise may look suspicious today
for reasons that are quite different from the reasons it was suspect to
Democrats who first promoted the corruption charges, such as John A.
Campbell. (Campbell, a former Supreme Court member who resigned his seat
to join the Confederacy, argued the butchers' case before the Court). The
reasons the slaughterhouse law looks suspect to contemporary scholars may
have something to do with institutional dynamics of the mid-twentieth
century, as the New Deal context for interpreting Slaughter-House
(in which Miller's opinion looked good) gave way to the context of the
Second Reconstruction (in which Miller's opinion looked bad). As Miller's
opinion became viewed mainly through the lens of Reconstruction and
condemned for its impact on black rights, the charges of corruption and
monopoly, developed and used by arch-racists to oppose the biracial
legislature, were resuscitated by liberal scholars. In reinvigorating
these charges, of course for different purposes, liberal scholars helped
keep the political context of the slaughterhouse law buried.
By situating the slaughterhouse law within its social and
political context, these books are successful in casting new light on this
long disparaged statute. In defending the Court's use of the police power
to uphold the law, they complicate scholarly understandings of the Court's
relationship to Reconstruction.
Contextualization of the slaughterhouse law, however,
cannot do the work of justifying Miller's exegesis on state and national
citizenship, which was unnecessary to the holding. These authors, then,
need additional arguments to defend Miller from charges that he
artificially narrowed the scope of the Fourteenth Amendment in "an obvious
attempt to destroy, as far as possible, any affirmative reading" of the
Labbé and Lurie's defense of Miller's narrow conception of
national citizenship is unpersuasive. They run into trouble with the claim
that "when the Court interpreted the new amendment, Miller could have
reasonably concluded that the congressional debates furnished no clear
guidance as to intent in general..." (pp. 5-6). For anyone who has read
the Reconstruction debates, suspicion of Miller's narrow definition of
national citizenship comes easily. Indeed, since the Second
Reconstruction, a mountain of evidence has been accumulated showing that
Republicans sought to invigorate the notion of national citizenship. This
intent was clear in general even if the precise definition was murky.
Labbé and Lurie could have argued, fairly, that this intent was in tension
with Moderate Republican attachment to notions of limited federal
power. Instead, they suggest that the Reconstruction debates paint no
clear picture of Republican intent to secure national protection for
rights deemed fundamental. This suggestion cannot withstand scrutiny in
light of the evidence gathered in recent decades.
Labbé and Lurie also dismiss the incorporation thesis in
summary fashion, though evidence in favor of original incorporation is
far stronger than they suggest. Given that debate over original
incorporation has been a central feature in the literature on the
Slaughter-House Cases, it is surprising to find the debate so readily
dismissed in a book that presents itself as a complete analysis of the
Labbé and Lurie's weak defense of Miller's opinion is the
last chapter of an otherwise useful and insightful book about the
background of the case. While they successfully argue the slaughterhouse
law was reasonable and the police powers doctrine of Slaughter-House
deserves greater attention, their unconvincing defense of Miller's narrow
definition of national citizenship damages their broader claim that "it is
far from clear that in 1873 Miller's opinion was 'scandalously
wrong.'" At the end of their book, critics of the decision will have
to reassess their view of the law and they may even entertain a new
contradiction between Miller's support for Louisiana's biracial
Reconstruction government and Miller's constriction of the privileges or
immunities clause. But the critics' arguments indicting Miller's narrow
definition of national citizenship will continue to weigh heavily.
Michael Ross is more successful than Labbé and Lurie in
casting Miller's narrow definition of national citizenship in a more
positive light, though there are ambiguities and sticking points in his
intriguing analysis of Miller's purpose in constricting the privileges or
According to Ross, in order to understand the
Slaughter-House Cases, we need to understand Miller as a
representative of 1850s western, river-town Republicanism. Miller ardently
subscribed to the 1850s free labor, producerist vision. After the Panic of
1857, he witnessed first hand the economic collapse of the Mississippi
river-town Keokuk, as it defaulted on bond payments and sought to
renegotiate its debt. For Miller, the needs of indebted western
communities took precedence over bondholder interests. Though he had
himself invested in a railroad, he became a passionate critic of those he
called "money men"ú-eastern financiers, bondholders, and railroad
magnates--whom he reegarded as a threat to free labor. Miller was
sensitive to the growing problems of industrialization, urbanization, and,
especially, the concentration of capital, and he supported state
regulations of business.
Ross positions Slaughter-House as an early battle
over economic regulation, arguing that Miller's constriction of the
privileges or immunities clause had an economically progressive purpose.
Watching his colleague Stephen J. Field, Miller had grown alarmed that
economic conservatives were beginning to assert control over the meaning
of the language of free labor and national citizenship. Miller constricted
the meaning of the clause, Ross argues, in order to block Field and the
economic conservatives from turning the Fourteenth Amendment into a weapon
with which they could strike down state regulatory laws. Incorporation of
the Bill of Rights and a broad definition of national citizenship would
have given the economic conservatives the weapon they sought. Had
Field won the day in 1873, "[e]very piece of state regulatory legislation
would be scrutinized" (p. 206). The Court would become, in Miller's words,
a "perpetual censor upon all legislation of the states." By placing
this famous language (for which Miller has been maligned) in the context
of the judicial struggle over economic regulation, Ross gives it a
progressive reinterpretation. His emphasis on Miller's 1850s
Republican ideology, furthermore, doubles as a warning against
anachronistic thinking about the 1870s. Scholars tend to think about 1873
in terms of the Gilded Age, and Ross's account offers a corrective to
these distorting effects.
A certain ambiguity, however, winds its way through Ross's
analysis. It is unclear if Ross thinks (a) that Miller ignored Republican
intent in order to thwart the economic conservatives, or (b) that Miller's
narrow definition of national citizenship was a justifiable reading of
Republican intent. His comments on the incorporation debate contribute to
this ambiguity. Perhaps this ambiguity reflects Ross's sense that the
categories for debating original intent are inadequate for reaching a
proper understanding of Miller's opinion.
Ross does not say this, but his analysis suggests that the
categories of debate over original intent (fidelity and betrayal) actually
impede understanding of Miller's opinion. For scholars who are convinced,
for example, that Republicans intended to incorporate the Bill of Rights,
it is intriguing to consider that Miller would have been foolish to be
"true" to this Republican intent because economic conservatives were
threatening to co-opt a ruling acknowledging incorporation. The categories
of fidelity and betrayal cannot capture this predicament. In fact, they
obscure it. Ross's defense of Miller's narrow definition of national
citizenship may possibly be the only line of argument that can "save"
Miller's constriction of the privileges or immunities clause from the
criticism of scholars.
But what about the impact of Miller's opinion on blacks?
Isn't Miller still vulnerable to the charge that he negligently left
blacks to the mercy of their former masters? Ross makes the pertinent
observation that "[i]n early 1873, it was still not clear that
congressional Reconstruction would fail or that the old economic and
racial order of the South would return" (p. 207). Congress, after all, had
just passed the Enforcement Acts of 1870 and 1871. Ross suggests that
Miller's reliance on state governments to protect blacks was not
unreasonable in this context.
But while it is important to note that Miller could not
have known Redemption was coming, Ross's suggestion that Miller reasonably
relied on state governments to protect blacks conflicts with Ross's
evidence that Miller did not trust Southern governments to protect blacks'
civil and political rights. Indeed, Ross adds that Miller did more
than rely on state governments to protect blacks. Miller relied on the
equal protection clause, which protected blacks from the infamous Black
Codes. If "[s]tates do not conform their laws to its requirements," Miller
stated, Congress could act to bring states into line.
It is here that Ross's argument falters, for Ross provides
evidence that Miller knew that Southern laws were not the major problem
after 1867 when the Reconstruction governments repealed the Black Codes.
The problem was the unequal application of neutral laws and it was a
problem Miller identified and condemned. Challenging William Pitt
Ballinger, his brother-in-law and frequent correspondent, to produce
evidence that southerners opposed and prosecuted violence against blacks,
Miller wrote: "Show me a single white man that has been punished in a
State court for murdering a negro or a Union man. Show me that any public
meeting has been had to express indignation at such conduct. Show me that
you or any of the best men of the South have gone ten steps to prevent the
recurrence of such things. Show me the first public address or meeting of
Southern men in which the massacres of New Orleans or Memphis have been
condemned" (p. 147). Given Miller's image in legal history, as one who
purposely or negligently left blacks at the mercy of their former masters,
this language is utterly unexpected. Indeed, readers will be struck by
Miller's contempt for intransigent Southern whites. Indeed, violent,
intransigent Southern whites were one of Miller's two villains, along with
Ross's argument that Miller relied on the equal protection
clause to protect blacks falters because a "state action" interpretation
of the equal protection clause left this unpunished violence outside the
scope of the remedial powers of Congress. (A "state action" reading of
Miller's opinion is conventional and it is the reading to which Ross
subscribes.) Given Miller's condemnation of systematic Southern failure to
prosecute violence against blacks, it is hard to believe that Miller would
be satisfied with an equal protection doctrine that failed to protect
blacks against these state derelictions of duty.
Ironically, then, Ross's evidence that Miller was sensitive
to black vulnerability highlights his apparent negligence of the
freedmen. His evidence raises the perplexing question: If Miller condemned
the problem of systematic state failure to punish violence against blacks,
especially when they voted, why would he endorse an equal protection
jurisprudence that barred Congress from providing a remedy? Instead of
securing Miller's reputation regarding race, Ross creates a new puzzle.
In fact, it can be argued that Miller got his guarantee of
a constitutional remedy for systemic state failure to prosecute violence
against blacks, but that we have misunderstood the means by which the
Court secured this result. This is not the place to develop this argument,
but the impact of Slaughter-House on blacks has been overdrawn
because a modern conception of equal protection has been attributed to the
case. Today, we regard the equal protection clause as a basic right of
national citizenship. However, it is also possible to view the equal
protection clause as a national guarantee that the rights of state
citizenship will not be denied on account of race. The text of the clause
allows for this reading. Indeed, this latter conception aligns with the
dominant antebellum tradition of viewing state citizenship as the source
of basic rights.
The critical accomplishment of these books is to suggest
that the Court's settlement of Reconstruction has not yet been understood.
The judicial retreat from Reconstruction did not happen as early as it has
been conventionally thought. Interestingly, the book that is more
successful in shaking loose the conventional negative view of the
Slaughter-House Cases is not the one devoted to the case but the one
that provides an intellectual biography of its author. Indeed, the
portrait of Miller's views on race, politics, and capitalism that emerges
in Justice of Shattered Dreams is fascinating and deeply disruptive
of conventional suspicions about Miller. There are many smart people
who write on the history of the Fourteenth Amendment and Justice of
Shattered Dreams will hopefully be read by every one of them. We need
a collective evaluation of Ross's arguments about Miller's opinion, for
they are important arguments indeed.
. 83 U.S. (16 Wall.) 36 (1873).
. The character of the law matters from both a
historical and a constitutional perspective. First, both books seek a
renewed appreciation for the police power doctrine elaborated in the
Slaughter-House Cases, and showing that the slaughterhouse law was
reasonable is necessary toward this end. Second, while neither book states
this explicitly, the conventional assumption that the law was a disguise
for a monopoly has helped frame the way the opinion is read. This
assumption has helped shape the conclusion that Republican justices in
1873 were turning away from Reconstruction and turning toward supporting
large-scale corporate interests.
. See, e.g., Harold M. Hyman's entry on the
Slaughter-House Cases in Leonard W. Levy and Kenneth L. Karst, eds.,
Encyclopedia of the American Constitution (New York: Macmillan,
2000), p. 2423. "In 1869, Louisiana, ostensibly as a public health
measure, incorporated the Crescent City Stock Landing and Slaughterhouse
Company and granted it a monopoly of licensed butchering in New Orleans."
Kermit L. Hall, William M. Wiecek, and Paul Finkelman also call the
exclusive franchise a "monopoly," noting that "[t]he state and city
claimed this was a legitimate health regulation under the state's police
powers." See Hall, Wiecek, and Finkelman, American Legal History: Cases
and Materials (New York: Oxford University Press, 1996), pp. 236-237.
. See, e.g., Labbé and Lurie's discussion (pp.48-50) of
Metropolitan Board of Health v. Heister, 37 N.Y. 661 (1868). The
Board of Health barred the business of slaughtering cattle south of a
designated line. They also barred cattle driving from certain streets
except at certain times of day. The majority opinion, written by Chief
Justice Ward Hunt, turned away a claim by Heister that these regulations
deprived him of his property. (Hunt was later appointed to the Supreme
Court by President Grant and joined the majority opinion in the
. The New Orleans Times, the only New Orleans
newspaper that supported the slaughterhouse law, argued that it would lead
to cheaper meat prices. It charged that butchers' interest in keeping the
price of meat artificially high explained their "garlic-scented" cries of
"monopoly" (Times, June 22, 1869, p. 2, quoted in Labbé and Lurie,
p.105). Even newspapers supporting the butchers conceded that the
"butchers may have practiced a monopoly" (New
June 22, 1869, quoted in Ross, p. 198).
. Some three hundred suits were brought against the
Crescent City company and the legal controversy over the slaughterhouse
law lasted over three years (in the Louisiana district courts, the
Louisiana Supreme Court, and the federal courts). Labbé and Lurie chart
the progression of these suits, laying out the patterns in argumentation
that quickly took shape on both sides.
. In a point of disagreement between the books, Labbé
and Lurie argue that "race is one of the less important factors in the
Slaughterhouse story. To argue that the Slaughterhouse Cases
must be seen primarily in the context of racial Reconstruction is to miss
the point that had there been no blacks in the legislature, opposition to
the statute still would have been profound" (p. 9). As evidence, they cite
the fact that the slaughterhouse law "posed a direct threat to the
interests of a large and coherent group of tradesmen who knew how to
complain" (p. 73). They are surely right that the butchers would have
heartily complained even if there had been no blacks in the legislature.
But Ross's concern is the popularity of the butchers' cause. He attributes
the popular embrace of the butchers cause to political resistance to the
biracial legislature. Indeed, the butchers' cause attracted high-profile
ex-Confederate legal talent because the butchers' resistance to the law
intertwined with popular racial/political resistance to the legislature.
"In different times," Ross notes persuasively, "the community would not
have rallied around the butchers" (p. 197).
. So strong was hatred for Union General Benjamin F.
Butler, who commanded the Union occupation of New Orleans between 1862 and
1864, that breaks in cholera and yellow fever epidemics--the result of
Butler's wartime sanitation effort to protect the health of his
troops--were explained as coincidental (Ross, p.193).
. Ross, p. 208. Labbé and Lurie agree, stating that
Miller "upheld as legitimate the action of a biracial reconstructed
legislature committed to a program of change, reform and modernization....
Far from gutting Reconstruction legislation, his opinion endorsed it" (p.
. Charles Fairman's seminal 1939 biography of Miller
viewed Slaughter-House through the lens of the New Deal, approving
Miller's support for business regulation and treating the slaughterhouse
law as reasonable regulation. See Charles Fairman, Mr. Justice Miller
and the Supreme Court, 1862-1890 (Cambridge: Harvard University Press,
. Ross's recovery of the political context of the law,
i.e., his account of the popularity of these charges, opens crucial
questions (though he does not explore them) about the history of the
corruption charges, e.g., how and why liberal scholars came to accept
them. This history must be reconstructed if we are to have a more complete
accounting of the dominant negative reputation of Slaughter-House
that these books seek to displace.
. Loren P. Beth, "Slaughter-House Cases Re-visited,"
Lousiana Law Review 23 (1963): pp. 487-505.
. In the secondary literature, see Michael Les
Benedict, "The Slaughterhouse Cases," in Kermit L. Hall, ed. The Oxford
Companion to the Supreme Court (New York: Oxford University Press,
1992), p. 789 ("the rhetoric of the debates suggested a vague but general
belief that all Americans, white and black, had certain fundamental rights
that had been violated in the interest of slavery and that should
henceforth be secured against infringement"). See also Eric Foner,
Reconstruction: America's Unfinished Revolution, (New York: Harper &
Row, 1988), p. 258 ("In establishing the primacy of a national citizenship
whose common rights the states could not abridge, Republicans carried
forward the state-building process born of the Civil War."). In the
primary literature, see, e.g., Congressional Globe, 39th Cong. 1st
Sess., p. 2542 ("There was a want hitherto, and there remains a want now,
in the Constitution of our country, which the proposed [fourteenth]
amendment will supply. What is that? It is the power ... to protect by
national law the privileges and immunities of all the citizens of the
Republic and the inborn rights of every person within its jurisdiction"
[Bingham].). See also the primary sources gathered by Foner,
Reconstruction, pp. 228-280.
. Moderate Republicans held commitments to both
national protection for basic rights and limited federal power. For an
argument that these twin commitments have been insufficiently understood
in the legal literature and that vagueness in the term "traditional
federal system" has run understandings of Republican intent aground, see
Brandwein, Reconstructing Reconstruction: The Supreme Court and the
Production of Historical Truth (Durham: Duke University Press, 1999),
. "Contrary to the positions taken by Michael Curtis
and Akhil Reed Amar, it can be argued that in the absence of more specific
wording in the amendment, a measure of diffidence is in order when drawing
conclusions concerning its scope" (Labbé and Lurie, p. 5).
. It is also surprising to find that scholars such as
Richard L. Aynes have been ignored. Aynes has made compelling arguments
that Miller made false statements and misrepresentations. See Aynes,
"Constricting the Law of Freedom: Justice Miller, the Fourteenth
Amendment, and the Slaughter-House Cases," Chicago-Kent Law Review
70 (1994); and Aynes, "On Misreading John Bingham and the Fourteenth
Amendment," Yale Law Journal 103 (1993): p. 57. Labbé and Lurie do
not acknowledge these arguments. For example, they simply note as "not
accurate" (p. 215 n. 24), without further comment, Miller's false
statement that the Fourteenth Amendment was the first time a definition of
national citizenship had been offered by Congress.
. Labbé and Lurie, p. 4 (quoting Lawrence Tribe on
. Other scholars have suggested that the
Slaughter-House Cases "may be seen as an articulation of judicial
restraint in economic cases." See Michael Les Benedict, n. 13 above, p.
. Ross's argument explains the irony that Democrats,
who violently opposed Reconstruction, were arguing for a broad definition
of national power in the Slaughter-House Cases, something seemingly
"Republican" in nature.
. Slaughter-House Cases, 83 U.S. at 78.
. See also Ross's discussion of Davidson v.
96 U.S. 97 (1878). In his majority opinion, Miller "feigned puzzlement
about why the dockets of state and federal courts had filled with cases
brought by aggrieved property owners who invoked the Fourteenth
Amendment's due process clause" (p. 232). Miller knew, argues Ross, "that
railroad, industrial, and financial interests were looking for new legal
means to fight regulations then being passed by state legislatures" (p.
233). After Slaughter-House had rendered the privileges or
immunities clause useless for that purpose, "the attorneys for vested
interests set their sights on the due process clause" (ibid). It is
important to remember, of course, that Miller's economic views continued
to "win" in the 1870s. See, e.g., Munn v. Illinois, 94 U.S. 113
(1877). His river-town view of capitalism did not completely lose out
until the 1890s.
. Ross accepts some of the evidence gathered in favor
of original incorporation. "Although the evidence of the framers' intent
[to apply the Bill of Rights] is by no means conclusive, it is clear that
at least two of the amendment's proponents (Jacob Howard and John Bingham)
did want the Fourteenth Amendment to incorporate the Bill of Rights, and
that Miller could have found support for that argument had he so desired"
. The number of federal prosecutions under the
Enforcement Acts looks woefully inadequate today, but this number reached
a high water mark in the early 1870s and the federal government had
success in the famous Klan trials. It is also worth noting that Miller
could not have foreseen the election results of 1874. Following the
economic Panic of 1873 that hit Wall Street in September, the election of
1874 gave control of the House to the Democrats. (Slaughter-House
was decided in April.)
. Miller expressed frequent support for blacks' civil
and political rights (Ross, pp. 116-118, 165, 210) and it is important to
understand the terms "civil rights" and "political rights" according to
their nineteenth century meaning. At the time, civil rights and political
rights were part of a "hierarchy of rights," and this concept has
disappeared from constitutional thinking. The content of these categories
of rights was disputed but there was consensus on "core" body of basic
civil rights, which included physical security, property rights, and
contract rights. Political rights included voting and holding public
office. Access to public accommodations, racially integrated schools, and
inter-racial marriage were considered by most legal actors at the time to
be "social rights," and non-basic. Ross does not locate Miller's support
for civil and political rights within this rights hierarchy, even though
doing so would buttress his argument that Miller was a racial moderate.
For an introduction to the "hierarchy of rights" concept, see Mark Tushnet,
"The Politics of Equality in Constitutional Law: The Equal Protection
Clause, Dr. Du Bois, and Charles Hamilton Houston," Journal of American
History 74 (1987): pp. 884-890. See also Harold M. Hyman and William
M. Wiecek, Equal Justice under Law (New York: Harper & Row, 1982),
. Slaughter-House Cases, 83 U.S. at 81.
. Justice of Shattered Dreams is the first
comprehensive look at Miller since Charles Fairman's influential 1939
biography. Fairman, like many historians of his era, regarded
Reconstruction as a mistake and he presented Miller as sharing this view.
One of Ross's objectives is to correct Fairman on this score, and his
portrait of Miller's views on race is invaluable.
. According to Miller, these were men "incapable of
forgiving or learning" (p. 136). Miller was one of only a few Republicans,
along with Benjamin Wade, to call for the executions of top Confederate
leaders. He also rejected a speedy Reconstruction, supporting loyalty
oaths and the Military Reconstruction Act of 1867. In 1867, he found
President Johnson "more odious than the democratic party" (p. 146). In
1877, he stated that John A. Campbell "deserves all the punishment he ...
can receive, not so much for joining the rebellioon as for the persistency
with which he continues the fight" (Miller to W.P.B, quoted in Ross, p.
. Elsewhere, I begin to develop the argument that the
lower federal courts developed a doctrine of state neglect between 1867
and 1873 and that the Supreme Court endorsed this doctrine, which remained
consistent with a state-centered federalism. It was this doctrine, I
argue, that protected the basic rights of blacks from the systematic state
neglect that Miller condemned. See Pamela Brandwein, "The Civil Rights
Cases and the Lost Doctrine of State Neglect," in The Supreme Court
and American Political Development, eds. Ronald Kahn and Ken I. Kersh
(forthcoming, University Press of Kansas). I present this argument in
fully elaborated form, and also account for the institutional rise of
state action orthodoxy, in Brandwein, The Supreme Court and the Lost
Doctrine of State Neglect (forthcoming).
. Ross sums up his view of Miller's opinion: "When
viewed within the political, economic, and social context of the early
1870s, the Slaughter-House Cases may be read as a
progressive--though ultimately failed--attempt to affirm the authority of
the biracial government of Louisiana, to grapple with the horrible
sanitary conditions of New Orleans, and to thwart conservatives such as
Justice Field, who hoped to defeat state regulation of private property"
(Ross, p. 201).
Library of Congress
Call Number: KF228.S545 L33 2003
* Slaughtering and slaughter-houses--Law and
* Civil rights--United States--History--19th century.
* Monopolies--United States--History--19th century.
* Slaughterhouse cases (1873)
Citation: Pamela Brandwein. "Review of Ronald M. Labbé and
Jonathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and
the Fourteenth Amendment," H-Law, H-Net Reviews, May, 2004. URL:
“The authors adeptly
explain the historical ramifications and legal implications of the legal
challenge launched by the butchers, focusing on twin aspects central to
the resolution of the dispute: the forceful and activist role of
Associate Justice Samuel F. Miller in reasserting a stronger sense of the
Supreme Court’s pivotal role in the federal government, as well as the new
imperative by 1873 to address controversial issues of constitution law
arising from the recent passage of the so-called Reconstruction
Philip Y. Blue, review of
The Slaughterhouse Cases: Regulation, Reconstruction, and the
Fourteenth Amendment, by Ronald M. Labbe and Jonathan Lurie,
Library Journal 129 (February 15, 2004): 141.