The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (review)

The Supreme Court's decision regarding the Slaughterhouse Cases in 1873 has been controversial ever since. Later cases relied on Slaughterhouse's constricted reading of the Fourteenth Amendment's Privileges or Immunities Clause was to cripple the plan of the Amendment's leading framers—to require states to obey the Bill of Rights.¹ Most of the rights that the Slaughterhouse Court said were guaranteed to American citizens by the Privileges or Immunities Clause are bizarre—the right of citizens to protection on the high seas and in foreign lands, for example.

Blacks and Republicans were facing serious problems from 1866 to 1868, but not on the high seas or in foreign lands. Because Slaughterhouse helped to make the anti-Klan civil rights acts of the 1870s a dead letter, progressive scholars often see the Slaughterhouse Cases as a serious setback for civil and constitutional rights. Since the case approved a legislatively created monopoly slaughterhouse, conservative scholars fault the decision for its failure to protect economic rights.

This fine book by Labbe and Lurie reminds us about the other faces of the Slaughterhouse Cases. As Labbe and Lurie show in admirable detail, New Orleans slaughterhouses had been a public health and environmental disaster. Their book collects and analyzes contemporary medical thinking about the dangers of slaughterhouses in general and those in New Orleans in particular. It also demonstrates that efforts at more narrowly tailored health regulations had been a failure—in part because of the considerable political clout of New Orleans butchers.

Labbe and Lurie carefully trace the legislative struggle to provide for a single privately operated slaughterhouse, the nineteenth-century legal environment that often (but not always) supported such an approach, the confusing welter of lawsuits attacking the "monopoly," the court decisions, and finally the arguments and the decision in the Slaughterhouse Cases themselves. The book is a masterful examination of the intersection of law, politics, public health, and medical knowledge at the time.

The authors note the claim that in some respects the legislatively created monopoly slaughterhouse increased competition. The new slaughterhouse provided a venue where the less affluent butchers (black as well as white) could ply their trade without a large capital investment.²

Like all historical explorations, this book presents only a part of a multifaceted reality. The authors portray Samuel Miller, who wrote the Slaughterhouse opinion, as influenced by his medical background and as committed to preserving state power over ordinary economic questions. In contrast, Richard Aynes argues that Miller was fundamentally unenthusiastic about the constitutional changes—such as requiring states to obey the Bill of Rights—that many supporters of the Fourteenth Amendment envisioned.³

Labbie and Lurie see the Slaughterhouse opinion as consistent with footnote 4 of the Carolene Products case—leaving ordinary commercial matters to the political process.⁴ To them, Slaughterhouse supported broad governmental authority to regulate economic activity in order to protect public health, and so it did.

In stark contrast to Slaughterhouse's constricted reading of the privileges or immunities clause, footnote 4 also suggested heightened scrutiny for those guarantees of the Bill of Rights that the Court had finally applied to the states under the Fourteenth Amendment's due process clause. But in the years following Slaughterhouse, the Court again and again held that Bill of Rights guarantees did not apply to the states, citing Slaughterhouse as authority.⁵ That doctrine, combined with the Court's subsequent embrace of the idea that rights secured by the Fourteenth Amendment limited only the states and not private actors (such as Ku Klux Klan members), robbed the federal government of power to protect the most basic constitutional rights of blacks in the South.⁶ Unhappily, this sort of "healthy respect for federalism," which the authors see in Slaughterhouse (16), was not consistent with vigorous protection of basic rights for black citizens in the South.⁷ As the authors sometimes suggest, the problem with the...