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tv   U.S. Supreme Court 1873 Slaughterhouse Cases  CSPAN  August 3, 2017 9:34pm-10:30pm EDT

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washington journal friday morning. join the discussion. you're watching american history tv. 48 hours of programming on american history every weekend on c-span 3. follow us on twitter @cspan history for latest on our schedule to keep up with history news. next on american history tv author and legal professor talks about the supreme court clother house cases. the supreme court up held a monopoly of slaughterhouses in new orleans in order to protect health. they were the first cases in which they commented on the meaning of the 14th amendment. the supreme court historical society hosted this hourlong
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program. >> good evening, everyone. my name is jim o'hara, and i'm chairman of the supreme court historical society's library committee and a member of the society's board of trusties. it is my pleasant task to welcome all of you here this evening. this is the fourth and final lecture of the society's 2015 lecture series. professor randy barnett will lecture this evening on the three narratives of slaughterhouse. before i proceed i'm asked to request of you you turn off all cellphones and all other electrical or electronic equipment because even in silent modes, they cause considerable interference with the sound system in the courtroom. and you can do that now.
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thank you. i would like to express the society's sincere gratitude to our hosts this evening, justice clarence thomas. justice thomas has been very generous and giving of his time to the society whenever we have called upon him. and i want to thank him for taking the time this evening to be with us. i remember a couple of years ago i heard a scholar describe the work of a supreme court justice as reading and reading and reading and then writing and then reading some more and then writing and then editing a little bit and then writing some more and then reading some more. and all of that takes time. when the society calls upon a justice to do something for us, we are very conscious of the
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fact that we are intruding on the justice's time. so we are grateful to justice thomas and to all of the members of the court for hosting this series this year. because many of you in the audience have heard the story of his career, perhaps by reading his wonderful memory "my grandfather's son," i will be briefer in my introduction than would ordinarily. justice was born in savannah, georgia on june 23, 1948. he graduated in 1971 and from yale law school in 1974. after working in missouri as an assistant attorney general of that state and then later on the staff of senator john danforth,
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justice thomas was appointed assistant secretary for civil rights in the united states department of education in 1981. and one year later he was named chairman of the united states equal employment opportunity commission, and he served in that capacity until 1990. president george bush appointed chairman thomas to the united states court of appeals for the district of columbia circuit in 1990 and one year later nominated judge thomas to the supreme court of the united states. he was confirmed by the u.s. senate on october 15, 1991. i would simply add to this brief comment by noting he has always been a loyal friend of the
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historical society. he's introduced many of our lectures, hosted our state chairs dinner, and even on one occasion given the society's annual lecture in 1997. so it is my distinct honor to present to this audience justice clarence thomas. [ applause ] >> thank you all. thank you, jim. judge leon. i see so many of my colleagues here. thank you all for being here. and good evening and welcome to the supreme court. i'm delighted that so many of you could join us this evening for the final lectures, jim said in the society's 2015 leon silverman lecture series. tonight's talk will focus on the
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slaughterhouse cases. these are of particular interest to me. it is sure to be an excellent lecture. before i introduce professor barnett, i wanted to take a moment to reflect on the society and its contributions to this court. one example is the leadership of the late leon silverman for whom this lecture series is named. he was a tunane s advocate for advancing understanding of the supreme court and its history and i might add a tutain s advocate for making sure we all were involved. a few of his initiatives from his tenure as chairman and president of the society include this lecture series, the expansion of the journal of the supreme court history to three issues a year, and expanded acquisitions program to find historical items to display
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throughout the court and educational out reach efforts that include teacher training programs here in washington and around the country. we lost leon earlier this year after a long illness. he is sorely missed, but i am pleased to see his work continue within the society through the leadership of people like the society's president greg joseph. our speaker this evening, professor randy barnett is a professor at university georgetown center. there he directs the center for constitution and teaches there. he earned his ba degree from northwestern university and his jb degree from harvard law school. he's author of "restoring the
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law's constitution, the presumption of liberty" published in 2014 by princeton university press and several other books. he's written more than 100 articles and reviews on constitutional law, contract law and other subjects. in addition to teaching at georgetown, he has taught at boston university school of law, harvard law school, the universe of pennsylvania law school and other universities. his latest work, "our republican constitution, securing sovereignty of the people" will be published in 2016 by harvard columns. in 2009 professor barnett was awarded by the foundation, a fellowship sponsored by the
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society's vice president darthy tapper goldman, a dear friend of ours. i could continue with professor barnett's many accomplishments, but it would leave you little time to hear his insights into the slaughterhouse cases. i hope you will join me in welcoming professor randy barnett. [ applause ] >> well, thank you justice thomas for that most grajs s introduction and for hosting tonight's lecture. no sitting justice appreciates the significance of our topic tonight more than you. and i appreciate all you've done to get the court to take seriously the original meaning of the privileges and immunities clause. i also want to think jim o'hara and the society for inviting me to participate in this important
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series, and especially jennifer lowe, who basically runs this whole thing. now, the previous lectures in this series by michael ross, paul -- i'm going to do my best to clear it. i have to say as intimidating to give a lecture in this place in front of an audience like this, i think i'd rather be facing in this direction. now, the slaughterhouse cases decided in 1873 involved a state statute preempting a franchise to a private owned slaughterhouse, for the entire city of new orleans and voupding parishes. in those days cases were given preemptative names. the slaughterhouse cases is
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plural because it consolidated many challenges that had been brought by associations of butchers and livestock dealers. because these challenges allege that the monopoly violated the 14th amelt, this then became the first supreme court case to pass upon the meaning of the 14th amendment since it had been ratified five years earlier. the case become enormously influential not for everything that it held, most of which has been super seeded by other decisions, but for what it said about the scope of privileges and immunities clause of the 14th amelt which reads no state shall make or enforce any law that shall encroach about the privileges of the citizens of the united states. if you came down and you were studying the constitution and i read you that, you might think that was pretty important. no state shall make or enforce any law which shall abridge the privileges or immunities of the
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citizens of the united states. that sounds like a big deal. yet it's so exaggeration to say that because of the decision in the slaughterhouse cases and the united states versus cruikshank the privileges and immunities clause ceased to play any role in protecting rights. until justice thomas' current opinion in which he was the fifth vote, this privileges and immunities clause had made just one appearance in the supreme court decision since slaughterhouse. it has been all but redacted from the text of the constitution, redacted is a lawyer's term meaning excised or eliminated. for this reason perhaps it's no surprise that the court's decision has been widely
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criticized by constitutional scholars. virtually no serious modern scholar thinks that slaughterhouse is a plausible reading of the 14th amendment, not the that the modern consensus is unanimous. in a recent book a law professor has taken up the mantal of defending. many of these books are available i should add at the supreme court historical society bookstore down stair. i know they always like you to say things like that. in my lecture tonight i'm not going to litigate my own dispute. it's a matter of public record. in fact, i think in the interest of full disclosure i should
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mention that law professors richard a.m.s, jack bowl kn, michael lawrence, adam winkler and i filed an amicus brief containing the slaughterhouse should be reserved. but to support that conclusion here it would be extremely tedious. so instead i wish to review the case through the lens of three competing narratives. the first is the narrative of public health that is offered to support the majority's decision to up hold the slaughterhouse nunauply. the the second is the narrative gnat undercuts their decision. finally in recent years a third narrative has been offered to defend the slaughterhouse clause
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and that's the narrative of race. i'm going to explain why it might be simply better to follow the original meaning of the text. but first let me tell the stories beginning with the meaning of public health. as they chronicle in grisly detail, the health conditions in new orleans in the years leading up to and following the civil war were atrocious. buckle your seatbelts. in 1820s, they note a visiting french reported that the condition of the yards is such that you would think that savages live there. in 1854 wrote, quote, new orleans is one of the dirtiest and consequently sickest cities in the union. another summarized the condition of the city as quote, one long disgusting story of foul, sewage
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and filth, endless filth everywhere. between 1796 and 1869 new orleansfever. the 1853 attack kill the one-tenth of the population in a single summer. followed by epidemics nearly as severe in 1854 and '55. 11 epidemics of coller ral descended on the crescent city between 1832 and 1869. new orleans was only spared these epidemics during its occupation by union forces after its surrender in 1862. the controversial union general ben butler who took charge of the city later wrote that its streets were "reeking with pugh electrifying filth." on a carriage ride with his wife to inspect the town, as they approached the basin near lake pontchartrain, the air he said was "filled with the most
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knoxious and offensive stenches possible so knoxious as to almost take away the power of breathing." the whole surface of the canal and the pond was covered with a thick growth of green vegetable scum. variegateded with dead cats and dogs or the remains of dead mules on the banking. butler ordered a complete clean-up of the city including hiring a force of some 2,000 men to clean the streets, squares and unoccupied areas. he established a quarantine station 70 miles below the city to inspect every ship before it could come into port. according to his biographer "he tore away shanties fill the up the holes purged the canals cleaned the streets, repaired the levy and kept the city in such perfect cleanliness that even the occupied citizenry that despised him had to admit that "the federal coz clean the streets if they couldn't do anything else." as a result of all this effort,
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new orleans was spared from epidemics throughout the federal occupation. after the city was returned to civilian control, however, sanitary conditions reverted to their previous slow venally state. with the city now filthy in the extreme in words of one observer, it was struck twice with cholera epidemics in 1866 a year later yellow fever again hit the city. although public health advocates had advocated and even enacted health measures as early as the 1 20z, political resistance angkoruption prevented their effective implementation. among those unenforced regulation brz restrictions on the dispose of the waste that accompanied the slaughtering of animals that took place throughout the city limits. la bay and lurie tell us "in new orleans, animals were routinely herded through the streets, slaughtering sometimes took place in the open within sight of the public including children. when oh full was disposed of
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correctly, it was loaded into open carts and were driven leaking and reeking through the streets to news san wharfs where it was supposed to be dumped into the river but much of it was simply discarded into the streets or gutters and left to rot and fester in butchers' back yards." in 1359 report of the board of health described the gutters as squelterred with the blood and draining of slaughter pens. an 18168 estimate placed the total number of slaughter houses in new orleans at 150. the great majority of these were located in well populated areas of the city about only about 1 1/2 miles upstream from the two large pipes for the city's water intake. one health officer testified that "the amount of fit t grown into the river above the source from which the city is flied in water and coming from the houses is incredible. barrels filled are entrails, blood, urine and duncan other stages of decomposition are
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constantly being thrown in the river. poisoning the air with offensive smells and necessarily contaminating the water near the banks for miles." now i could go on like this in this vain but i'm going to stop and spend the rest of my lecture on other topics so that we're going to have time to recover our appetites before we handy the lovery reception that the society has planned for us. after i'm done here. enough. now, the slaughter haas act enacted by the louisiana legislature addressed these public health issues in three ways. first, it stipulated there would be just one slaughter house to service the city of new orleans and the surrounding parishes. second, it issued a franchise to build and operate this facility to a specially chartered corporation made up of private invest shz. third it located the slaughter house across the river and down stream from the city. now, two years earlier, the
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legislature had formed a special committee to address the slaughter house issue. it was comprised of ten representatives from each of the four new orleans municipal districts as well as neighboring jefferson and st. bernard parishes. the committee took evidence from nine physicians including all four of the city's health officers, the superintendent of the water works, a representative of the board of health, several wharf managers and a number of individuals with knowledge of or special from in operations or the conditions of the river. la bay and lurie found that the evidence massed by the committee "constituted a well thought out comprehensive and fact-based justification for slaughter house reform. they concluded that "almost two years before the enactment of the famous or infamous slaughter house statute, the louisiana legislature had for its consideration all available evidence, options, alternatives, proposals, justifications and rebuttals concerning the relocation of slaughter houses. so according to the narrative of
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public health, the decision in slaughter haas was correct because there was a strong police power rationale for the measure. removing the numerous slaughter houses scattered throughout new orleans abated the nuisance they had caused and confining all slaughtering to below the city protected the water supply. and creating a single monopoly slaughter house across the river from the city's served two purposes. first, potential the potential profits from the franchise would induce private investors to spend the money to build a state-of-the-art abbab twar during the i'm in which the ability of local government to either raisetachs or float bonds to pay for such a facility was very weak. as michael ross observed and michael ross is here today, as michael ross observed "because of the lack of capital in louisiana after the war and the dire financial circumstances of reconstruction government, legislators had little choice but to turn to creative methods for sfundsing their wiggish
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development program. second, confining slaughtering to a single facility would enable a more effective regime of meat inspection to be implemented than was possible with small establishments scattered throughout the city. as for the butchers' claim that the monopoly infranged on the right to pursue their occupation, the right to be among those protected by the privilege or immunity of kritzs, the monopoly was by law had to use any butcher to use the facility at the regulated rate. no one's ability to be a butcher was confined to slaughtering by this facility. the capital rirms for entering the butchering business had been reduced. the law was a win for the franchise holders a win for the butchers and for the health of the general public. according to this narrative then, the supreme court was right. to uphold the slaughter house law. but there's another narrative that was advanced by the law's
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political opponents. opponents including democratic newspapers and it was this. the slaughter haas act was a product of a corrupt state legislature. back then, government at all levels of louisiana was notoriously corrupt. okay. strike the back then. government make it government in louisiana has always been notoriously corrupt. in the wake of the civil war, men saw opportunities for personal profit with from public improvements particularly if they could be undertaken in partnership with the state in terms of either authority or funding. as a result, la bay and lurie note that "a great many zinni cures and exclusive franchises for such things as a state allotry, state print, hay inspection and state aid for the construction of navigation to a private company -- were adopted.
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and also navigation and drainage canals were all the adopted. for example, the franchise granted to a private company to establish a monopoly louisiana state lottery around the staple time as the slaughter house wakt was passed well well-known to have been a product of bribes paid to legislators. when you think about it, louisiana politics led to some of our most famous and infamous cases. slaughter house, cruikshank, hahns versus louisiana, and plessy versus ferg soon are all involved louisiana. but let's not to be hard on poor louisiana. in fairness, corruption of state legislate steuers and in congress associated with economic development schemes was commonplace in the 19th and 20th centuries. as eric phoner observed "bribery, fraud, and influence pedalling it have been endemic to american politics and nor did the governments in the reconstruction north the era of tweed and whiskey rings offer a
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model of probity. indeed speaking as someone who grew up in illinois and was a cook county state's attorney before going into teaching, i would say the corruption is pretty common within economic development schemes even today. now, be this as it may, in louisiana, schemes such as the state lottery and the slaughter house law engendered intense resentment because of the widespread belief they had been obtained dishonestly. far from being a public health measure, the slaughter house law was characterized but its opponent as "a private measure aimed at the unjest enrichment of a few at the expense of stock dealers and butchers who it would displace and the general public. this resentment was enhanced as northerners headed to 0 orleans to find their fortunes giving rise to the term carpet baggers. now we have very good reason to believe that the slaughter haas act was indeed the product of
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corruption. in one of the literally dozens of lawsuits that surrounded the statute, state court judge william cooley ruled that stock in the corporation had been issued "in order to bribe the members of the general assembly and the other men who stood in their way in order to obtain final passage of the bill and its signature by the governor." he found "that members of the house of representatives had been bribed for their votes and members of the senate were also bribed for their votes. the evidence further showed he ruled "that other parties occupying official positions in the city of orleans were also bribes and that the governor's signature was corruptly obtained." in 1875, the louisiana supreme court concurred ruling "on the merits we are satisfied from an examination of the testimony that the ground from which this action springs was a fund created for the purpose of corrupting and improperly influencing members of the legislature." so rather than viewing the
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slaughter house cases favorably, for upholding a much needed public health measure, we can view it unfavorably as upholding a grant of monopoly privilege to a favored few at the expense of the small independent butchers just trying to pursue an honest living. now, on the other hand, these twos narratives are not mutually exclusive. perhaps no genuine public health measure would be have been passed would have passed the legislature without corruption. put another way, legislatures holding the power to dispense wealth in the form of monopoly privileges and franchises simply won't act till they're paid off with bribes. so as the old song said about love and marriage, perhaps you just can't have one without the other. now, before commenting, on how the decision in slaughter house should properly be assessed of these twos flairtives let me turn to the narrative of race. in which turns out to be more complicated than some scholars
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may think. indeed to the extent that one can ever make headlines about 19th century history, perhaps tonight, i can break a little scholarly news. on c-span maybe. now, historian michael ross who i already told you was sitting here in the second row deserves much of the credit for uncovering the role that race played in the cases. in his biography of justice miller and his previous writings he made a powerful case that the constitutional challenge to the slaughter house act was racially motivated. the louisiana legislature that passed the law was a reconstructed by racial legislature dominated by republicans. the house was comprised of 65 republicans, 35 of which were black,ing to 36 democrats. the senate held 23 republicans, seven of which were black. and 13 democrats. this legislature was a product of a new state constitution that desegregated education, prohibited racial discrimination
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in public places and denied former confederates the right to vote. it also included a bill of rights the first in louisiana history that voided the black codes, outlawed slavery and guaranteed trial by jury. the right to assembly peaceably and the freedom of religion and the press. to all this most white louisianians reacted with hostility. and louisiana newspapers issued a racial call to arms. adding fuel to the fire, the new legislature passed a statute enforcing open accommodations in public places including hotels railroad cars and barrooms. another ordinance integrated public schools. in every public school in the state. in between, these twos racially charged laws, came the slaughter house bill which got tarred by the same brush. white new orleans closed ranks behind the all white butchers to oppose the bill even though it finally ameliorated the terrible
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conditions in and around the slaughter houses and even though the butchers themselves had previously been rather unpopular since they were accused of conspireing to raise the price of dressed meat. moreover, the lawyer who represented the white butchers from the initial lawsuit to the oral argument in the supreme court was none other than former supreme court justice john camp bell. campbell an alabama democrat, nominated to the court by democrat james buchanan, resigned as a justice to return to the confederacy. there he was named assistant secretary of war by confederate president jefferson davis, a position he held till the end of hostilities. campbell viewed the legal challenge to the slaughter house bill as part of a campaign to destroy reconstruction. indeed, at the very moment campbell was conting in the louisiana court that the 14th amendment had the broadest possible meaning he had also filed suit claiming that the newly enacted louisiana public accommodations law violated the
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privileges or immunities of new orleans opera house who's wished to segregate black tronz. it was catch bell's litigation objective to turn the republican's 14 amendment bense against their program of reconstruction. now in sharp contrast with catch bell stood justice samuel free man miller. miller was a former whig republican who was appointed to the court by president lincoln. in light of the racial context of louisiana politics, miller's biographer mike ross, characterizes his majority opinion in slaughter house as now i'm quoting from michael a vote of confidence for a by racial reconstruction government then struggling to overcome the forces of reaction. studying moreover, miller was a physician by training. and hop had spent years studying the causes and treatment of cholera. miller's long residence in kia cook, iowa had given him
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firsthand knowledge of pigs and slaughtering and he was ahead of his time in recognizing the connection between cholera and fouled water. so his support for the slaughter house law also reflected his deep interest in the sanitation movement. when miller's public health background and his whigish? i for public works programs are gipd with his public trt in reconstruction, his opinion can be viewed favorably within the narrative of race. he maintains that "had the court ruled against the slaughter house raw law, it would have supported the reconstruction legislature's critic who's alleged blacks and yankees were too ignorant or corrupt to adopt legislation that could pass constitutional muster. so like the narrative of public health, the narrative of race can be said to cut in favor of the majority's decision in slaughter house. however, near as i can tell, ross, as well as la bay and
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lurie seemed to have overlooked a political dimension that turns the narrative of race in the opposite direction. for while they properly emphasized the role and motivation of jaup campbell for challenging the slaughter house act, they uncharacteristicisticly neglect the role and motivation of one of the slaughter house laws greatest defenders, an attorney named jeremiah black. who was jeremiah black? jeremiah or jerry black was one of the preeminent lawyers of his time. after rising to be chief justice of the pennsylvania supreme court, he was named attorney general of the united states by president buchanan. buchanan intended to nominate black to replace wronger twaney as chief justice who was expected to resign due to his feeble health. as twaney chose to hang on, 9 lame duck buchanan nominated black to succeed daniel as an associate justice.
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opposed by the new york tribune because of his politics, black's nomination came one vote sheaf confirmation in a senate now dominated by newly elected republicans. now, although black was a democrat unionist who the alienated his fellow democrats by opposing secession, he became an implaquable foe of everything the reconstruction republicans all of whom he called radicals were attempting. as his bee graefr observed from the beginning of reconstruction to the end, black played a singular and dynamic role. as a litigator he successfully challenged the use of military tribunals. after a week of argument, the supreme court led by chief justice chase upheld his challenge. then in 1867, congress passed two reconstruction bills that abolished all southern tate governments and replaced them with military districts that
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authorized martial law and military commissions throughout the south. a fellow democrat called upon black to draft his veto message on the grounds that both those unconstitutionally interfered with what the veto message described as the unspeakable blessing of local self-government. but as expected, johnson's veto was overridden by the republicans in congress. then having ended military rule in the north in the supreme court, in ex parte versus mccardell, jerry black saw the a writ of habeas corpus to end it in the south. the republicans had enacted the habeas corpus act of 167 to allow the freedman and southern unionists to bypass unsomething lower courts and seek their writs directly in the supreme court. now, black turned the tables on the republicans by using their new law to bring his habeas challenge to northern military rule of the south again directly to the chase court where he had
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prevailed once before in milligan. after four days of oral argument, the court delayed and delayed and delayed handing down its decision. long enough to allow the republicans in congress to repeal the habeas corpus act and deny the supreme court jurisdiction in all pending cases most especially the challenge brought by jeremiah black. when andrew johnson was impeached by the house of representatives, he retained jerry black as one of his team of defense lawyers for the senate trial. although he was advised that soard enta democrat could hurt his chances before a republican senate, he doggedly insisted on keeping black on the team. only a conflict of interest caused him to eventually resign before the trial commenced. now i tell you this story because one of jeremiah black's proudest accomplishments was his successful defense of the slaughter house act in the supreme court of the united
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states. indeed, after failing to become the chief justice, after johnson's veto was overridden by congress and after jurisdiction to decide his challenge to military reconstruction had been withdrawn by congress, ex parte milligan and the slaughter house cases were his two greatest victories over the republicans. which with the latter, the slaughter house case certainly the most moment to us and long lasting. now, why so avid a defender of states rights is jeremiah black would go are risenton oppose his fellow democrat yawn campbell's challenge to the slaughter house law is obvious. to gut the despised 14th amendment of its intended effect. as black's fawning biographer writing in the dunning school of pro southern revisionist history tells it, this is his words, not mine, in vain did the minority of the supreme court including chief justice chase point out that justice miller's interpretation practically made a newity of the privileges or
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immunities clause. this rider of the amendment forced upon the south at the point of a bayonet and foisted upon the north by its attachment to punitive measures against the south was severed from the constitution. here indeed was one of the epic making decisions of the supreme court. black, he said "had aided in cutting off bodily from the 14th amendment that portion of it which took civil rights from the states and gave it to the national government." so we can now see that the narrative of race cuts in opposite directions. on one hand, democrat and former confederate john catch bell attempted to turn the 14th amendment against a by racial republican state legislature. on the other, radical democrat jeremiah black attempted to gut the republicans' amendment itself. in the next and final part of my speech, i'm going to contend that black's was the more impactful of the competing litigation strategies. for it was black's victory that
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led almost directly to plessy versus ferguson. little wonder that even old john camp bell, old john camp bell, the defeated counsel in slaughter house admitted in his later years that "it was probably best for the country that the case so turned out." so having heard all these wonderful stories, let's consider the wisdom of using narratives such as these to assess supreme court decisions like the slaughter house cases. according to the three narratives, the narrative of public health supports upholding the slaughter house act. public core rings supports invalidating the statute and the mayortive of race cuts in both directions. perhaps this is illustrates why constitutional cases should not be decided to serve even a salutory political narrative. perhaps they should be decided instead according to the original meaning of the text and then let the narrative chips fall where they may.
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as i said at the start, i'm not tonight going to enter into the debate over whether justice miller's opinion in the slaughter house cases was faithful to the original meaning of the 14th amendment. i ask you instead simply to assume that the florida senators in slaughter house were right that the original meaning of privileges or immunities of citizens of the united states included the natural right of a person to pursue a lawful occupation subject to the reasonable regulation thereof. how might that have worked out in the long run? from the perspective of public health, corruption, and race. well, let's begin with the slaughter house case itself. even conceding the existence of a right to pursue a lawful occupation, we can see that there is very strong evidence that the slaughter house act was a reasonable health and safety measure that was very likely enacted by the legislature in good faith. had the state of louisiana been
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called upon to justify that claim, such a case would have been pretty easy. indeed, perhaps this is really why the case was decided the way it was. when we read the decision today, we may mistakenly be reading it through post new deal glasses. since the 1955 case of williamson v lee optical, the courts will make up a rational basis for a law regardless of whether it is inspired by the evidence or whether it was instead a mere pretext for prestricting liberty. prior to that, the factual foundation of even legislation enjoying a presumption of constitutionality could be challenged as unfounded. as the -- you don't have to take my word for it. as the new deal supreme court said in the famous 1938 case of u.s. versus care lee products, a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that the statute depriving a suitor of life,
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liberty or property had a rational basis. and than "such facts may properly be made the subject of judicial inquiry." according to this traditional approach, a court would look to see whether a particular regulation was irrational or arbitrary. irrational or arbitrary. these were terms of art. a measure is a rational if the means adopted poorly fit the ends the supposed end. a measure is arbitrary if the liberties of some are being restricted in ways that the liberties of other similarly situated people or companies are not. the inquiry into rationality and ashby trarryness is to ascertain whether a particular restriction on liberty was enacted in good faith or was instead enacted to be a purpose that is outside the legitimate police power of states. such illicit motives include the desire to benefit some persons or firms at the expense of others or the desire to
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stigmatize the exercise of a liberty of which the legislature disapproves or to make the exercise of that liberty more costly just to deter it from being exercised. in other words, courts should be frying to smoke out pretextule legislation ta only purports to serve a health and safety rationale but is really enacted for improper motives. so we can read justice miller's opinion as accepting the factual record below that justified the law as a public health measure when he wrote the following -- it cannot be denied that the statute under consideration is aptly framed to remove the more densely populated -- to remove from the more densely populated part of the city the noxious slaughter houses and large and offensive collections of animals necessarily incident to the slaughtering business of a large city and to locate them where the convenience, health and comfort of the people require they shall be located. and it must be conceded that the means adopted by the act for this purpose are appropriate or
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stringent and effectule. indeed really the centers in slaughter house don't contest this. their contention was granting the monopoly privilege to a private company was an improper means of executing the police power of the state regardless of how efficacious you would be. they only focus on the mon noly not on the public health part. think about it, once the court decided that the privilege oorz immunities of citizens did not include the right to pursue a lawful occupation, there was nos longer any reason for the court to consider whether the slaughter house law was a rational health and safety regulation or was instead an arbitrary restriction on the butchers liberty. indeed, under the majorities approach, everything in justice miller's statement about the rationality of the act like everything in the narrative so ably presented by la bay and lurie and by michael ross is
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legally irrelevant to the outcome of the case. the statute would be just as constitutional if it had been solely a product of political corruption as it would be if it had been a good faith effort to protect the public health. now, in contrast, if the descenters approach had been adopted it would have been incumbent upon the government to present evidence to support its regulations on slaughtering in new orleans. with this, as its burden, the legislature would need to gary and consider such evidence which they show they already had. then when the butchers challenged the rationality of the law in court a judge would decide which case was stronger, theirs or the legislatures. under the majority's approach, the legislature need not have held a single hearing or sworn a distinctal witness given there was no such enforceable right, they were under no such burden. ed you the majority's reading of the constitution, a legislature was free to restrict the liberty of the butchers solely to --
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with stock in the new company. or simply because they didn't like the butchers. now, if you don't believe me about this, i have a -- have a test case i can prove this. consider the court's decision in the case of brad well versus illinois. the decision that was announced the day after the slaughter house case was announced. in that case, a woman named myra bradwell was denied a license to practice law by the illinois supreme court after she had passed the bar exam. like the butchers in new orleans, she challenged this under the privileges or immunities clause of the 14th amendment as a violation of her right to pursue a lawful occupation. write 0 for the majority, justice miller tersely dismissed her challenge. "the opinion just delivered in the slaughter haas cases he wrote renders elaborate argument in the present case unnecessary
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for unless we are wholly and radically mistaken in the principles on which those cases were decided, the right to control and regulate the granting of licenses to practice law in the courts of the state is one of those powers which are not transferred for its protection to the federal government and its exercise is in no manner gomped or controlled by citizenship of the united states in the party seeking such a license." so notice that justice miller felt no need whatsoever to justify this outcome by reciting any reasonable basis for myra brad well's exclusion. under this approach, such a basis is not constitutionally required. and excluding myra bradwell from the practice of law could have been entirely arbitrary. this suggests that justice miller's observations about the rationality of the slaughter house act were dicta and wholly irrelevant to the outoutcome of the slaughter house cases. the dissenters in slaughter
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house had a different burden. when three of the four dissenters sided with the majority in bradwell, their approach to the privileges or immunities clause required them to explain why such a restriction on bradwell's pursuit of a lawful occupation was not arbitrary. this duty led justice bradley to file his notoriouslymy sojist opinion in which he described at length the wide difference in the respective spheres of destinies of men and women as well as the impact of the laws of so dret tour on the ability of married women to perform the duties of an attorney. we today we ject his analysis as egregiously mistaken and conclude that the prestriction was indeed arbitrary. even back then, according to one contemporary observer, justice bradley's opinion "seemed to cause no little amusement upon the bench and the bar." but at least the approach of the dissenters in the slaughter
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house forced justice bradley to articulate the basis for restricting this right before finding it to be constitutional. and this articulation helped feminists object to and very, very soon thereafter defeat such restrictions. however, while three of the four dissenters in slaughter house joined justice bradley's concurring opinion, one dissenter in slaughter house also voted to invalidate the illinois restriction on the right of women to practice law. that dissenter was chief justice salman chase. by the time of this decision, chase was too incapacitated by a series of strokes to write a dissent. indeed he died a mere three weeks after the decisions in slaughter house and brad well in announced. yet, in his last official act of his long and distinguished career fighting injustice, he instructed the supreme court reporter to note that "the chief justice dissenned from the
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judgment of the court and from all the opinions." and from all the opinions. in other words, chief justice chase not only dissenned from justice miller's majority opinion in brad well, he also dissenned from justice bradley's concurring opinion. one wonders whether had he been healthy, the chief justice might have been able to persuade one of the slaughter house five justice majority to side with the dissenters reading of the privileges or immunities clausz. how different history would have been had he been able to do that. indeed, standing here, i sometimes wonder whether the medical marijuana case of gonzales versus raich which i argued right here in this courtroom, might have been decided differently if chief justice rehnquist who along with justices thomas and o'connor sided with us had not been so gravely ill that year. he couldn't even sit in on the
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argument that year. in bradwell, the three slaughter house dissenters felt obligated to justify the state's restrictions on liberty of women to practice law. but by 1896, thanks to justice miller's approach in slaughter house and bradwell, seven of eight justices felt they were under no obligation to consider whether the law barring homer plessy from writing in a white's only new orleans trolley was irrational or arbitrary. in plessy versus ferguson, the majority could defer to the discretion of state authorities which citing slaughter house is exactly what they did. in plessy, justice brown's entire discussion of account rationality of the law segregating street cars consisted of this sentence -- one sentence. "in determining the question of reasonableness, he wrote, the legislature is at liberty to act
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with reference to the established usages, customs and traditions of the people and with a view to the promotion of their comfort and the preservation of the public peace and good order." in the next sentence, he concluded that if racially segregated schools were reasonable so too were segregated seat cars. two sentences, end of analysis. under justice miller's approach in slaughter house and bradwell, there was simply no reason to ask the state of louisiana to support its claim that racial segregation was required to preserve the public peace and good order. some years ago, while in new orleans for the annual law professors meeting my colleague larry and i visited the spot where homer plessy was arrested for boarding a whites only streetcar. as fate would have it, it was just a few blocks away from the site of the original slaughter house at issue in the slaughter
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house cases. just as the constitutional reasoning of the supreme court in slaughter house was only a few short steps from its decisions in both brad well and plessy. those who would elevate historical narratives above the original meaning of the constitution might stop for a moment and consider this legal narrative about what happens when you redact the privileges or immunities from the 14th amendment as the supreme court did in the slaughter house cases. thank you. [ applause ] >> sunday on in-depth, american educator tea party activist, author and attorney chris anne hall is our guest. >> for different reasons everybody has an idea that the federal government is out of control. and then the most asked question
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i get as we teach, what do you suppose that is? what do we do about it? and if we've been teaching the constitution properly for the last 150 years, we would know what to do. >> she's the author of several books including "essential stories for junior patriots in defense of liberty and sovereign duty," during our live three-hour conversation we'll be taking your phone calls, tweets and facebook questions. watch in-depth with chris anne hall sunday on book tv on c-span2. interested in "american history tv"? visit our website, you can view our tv schedule, preview upcoming programs, and watch college lectures, museum tours, archival films and more. "american history tv," at


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