For today read Robert Bork's analysis of the Slaughterhouse Cases. What points does he make? Where does he fit the case into the broader constitutional law picture?

THE SUPREME COURT AND THE TEMPTATIONS OF POLITICS

Judicial Activism in the Service of Property and Free Enterprise

After the Civil War the nation entered upon a long period of growth and industrialization. The judicial devotion to private property and limited government, which had been evident from the beginning of the Republic, now began to face the challenge of new kinds of legislation, some of it designed to further economic development through public expenditures, some of it designed to curb what were thought to be the abuses of a free enterprise system. The Constitution did not easily lend itself to all that the judges' philosophy of the proper role of government and the limits of democratic choice might suggest.

In a great burst of constitution making prompted by the Civil War, the nation from 1865 to 1870 adopted three major constitutional amendments designed, primarily, to provide the recently freed slaves with the same civil and political rights as all free citizens. The thirteenth amendment prohibited slavery and "involuntary servitude"; the fifteenth guaranteed the right to vote regardless of "race, color, or previous condition of servitude." But the fourteenth amendment, adopted in 1868, became and has remained the great engine of judicial power. The critical language of that amendment, for our purposes, is contained in three clauses: "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."

The privileges and immunities clause, whose intended meaning remains largely unknown, was given a limited construction by the Supreme Court and has since remained dormant. The due process clause, now made applicable to the states, was, of course, copied from the fifth amendment, which applied only against the federal government. Unlike the other two clauses, it quickly displayed the same capacity to accommodate judicial constitution making which Taney had found in the fifth amendment's version. The creative use of the equal protection clause for the same purpose had to await the Warren Court of the mid twentieth century.

In 1869, Louisiana chartered a corporation and gave it a monopoly of slaughterhouses, landings for cattle, and stockyards in a large area that included New Orleans. Butchers precluded from practicing their trade, except on the corporation's land and terms, challenged the law under the thirteenth and fourteenth amendments.

The Supreme Court, splitting five to four, sustained the law in the SlaughterHouse Cases . Justice Samuel Miller's opinion for the Court said that the text and history of the three post Civil War amendments disclosed a unity of purpose, "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." He interpreted privileges and immunities as referring to rights already protected elsewhere in the Constitution and thus, in effect, adding nothing.

Of the due process clause, according to Miller, "it is sufficient to say that under no construction of that provision [as already contained in the fifth amendment] that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."

Moreover, "[w]e doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview" of the equal protection clause.

The fourteenth amendment thus had little reach beyond the protection of those who had been slaves. Though some have complained bitterly about this, Miller was following a sound judicial instinct: to reject a construction of the new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members.

He said of the argument by the complaining butchers, "[S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights. . . ." In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race.

What is striking about the Slaughter House Cases is not the caution displayed by the majority but rather the radical position of the four dissenters. Justice Stephen Field wrote for them all , stating that the first clause designated "those [privileges and immunities] which of right belong to the citizens of all free governments. These were "natural and inalienable rights" and included "the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons."

Field actually supported his constitutional position with a quotation from Adam Smith to the effect that hindering a working man from employing his skills as he thinks proper is "a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him." One may be an unyielding admirer of Adam Smith, and of that moral principle in particular, without supposing that Smith wrote the fourteenth amendment or that judges are entitled to enforce The Wealth of Nations because its principles should have been in the Constitution.

Justice Joseph Bradley, in an additional dissent, agreed that the Louisiana law abridged the privileges of citizens and also deprived the butchers of liberty and property without due process of law. "Their right of choice is a portion of their liberty; their occupation is their property.

Bradley, like the Taney of Dred Scott, thus converted a constitutional requirement of just procedures into a prohibition of legislation whose substance he disliked. The difference is that Bradley's principles are admirable and Taney's despicable, but that is not a constitutional difference where nothing in the document authorizes judges to apply either principle.

Bradley also found the statute in violation of the guarantee of the equal protection of the laws. The presence of three distinct clauses was apparently, in Bradley's view, an embarrassment of riches; any one of them was adequate as a vehicle for his political views. Indeed, he apparently did not even need the fourteenth amendment, for, in a passage reminiscent of Chase in Calder v. Bull, Bradley said, "even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words. . Speaking of the dissents in the Slaughter House Cases, David Currie said, "The fundamental rights notion reflects once again the incessant quest for the judicial holy grail; perhaps at long last we have discovered a clause that lets us strike down any law we do not like."

Bradley also protested the limitation of the amendment almost entirely to blacks. "They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed."" This, too, as we shall see, can be read as an almost illimitable discretionary power in the courts.

The Slaughter House Cases pose the interesting question of the appropriate judicial response to a constitutional provision whose meaning is largely unknown, as was, and is, the meaning of the privileges and immunities clause. It is quite possible that the words meant very little to those who adopted them and that, as Charles Fairman said, the clause came from Representative Bingham of Ohio. "Its euphony and indefiniteness of meaning were a charm to him."'O Whether that is the case or not, that the ratifiers of the amendment presumably meant something is no reason for a judge, who does not have any idea what that something is, to make up and enforce a meaning that is something else.

The Slaughter House Cases were a narrow victory for judicial moderation and, in the event, proved only a temporary one. The idea that there are rights that are not in the Constitution and yet are enforceable by courts had been gaining ground in some state courts.