The Slaughterhouse Cases follow, in our casebook, the case of Barron v. The Mayor and Council of the City of Baltimore, for a reason.
In each, we learn that the Constitution does not confer the liberty to the individual that at first glance, and maybe even second glance, it seemed to promise.
Thus, when the City of Baltimore began re-grading streets, and allowed the muddy runoff to flow into the Chesapeake Bay alongside Mr. Barron's wharf, the resulting accumulation of silt filled in the Bay, making it too shallow next to the pier for ships to approach to unload and load.
Barron's wharf had thus been put out of business by the city, so he sued the City in the local or State of Maryland Court, where he was awarded close to $45,000 in damages, only to have the judgment overturned by the highest Maryland court.
He then sued in the U.S. Supreme Court, alleging an uncompensated taking by government (the city) in violation of the Fifth Amendment, which guarantees that "no person" shall be deprived of... property without due process of law; nor shall private property be taken for public use, without just compensation."
It seems pretty clear that Barron suffered an injustice, an uncompensated taking for public use and should thus win, right?
In plain English, the Clause guarantees just compensation for what was a clear taking for public use worth $45,000.
But Mr. Barron, alas, lost.
That's not fair, you say. He was deprived of the use of the property to the tune of $45,000 by the City for public use (street installation and repair) and not paid.
Con-law, as we have pointed out is not about 'fair' in an immediate sense; it's about power, in the legitimacy sense.
Just as we don't think it legitimate for one government branch or court tribunal to exercise the powers assigned by our constitution or other law to another, we don't think it legitimate to apply constitutional guarantees to situations to which they were not intended by their framers. We will see some exceptions to this idea, controversial exceptions (everything in Con-Law is controversial; the Court, per the Constitution may take up only cases or controversies, but the exceptions start with the Slaughterhouse cases, primarily the fertile dissents.
But before we get to that, we must first obtain a law lesson from the Great Chief Justice, John Marshall, who, in 1833, wrote the decision in Barron v. Baltimore.
Chief Justice Marshall pointed out that the Fifth Amendment is part of the Bill of Rights. The Bill of Rights was made part of our 1787 Constitution as part of a deal. There was considerable opposition to adoption of the new constitution because, unlike the state charters, it provided few guarantees against government oppression of the individual.
So the anti-Federalists, as opponents were called, who included patriots such as Patrick "Give me liberty, or give me death" Henry and George Mason of Virginia, insisted on a Bill of Rights in return for ratifying, and their support was essential, otherwise the country would have had a big hole in the middle: no Virginia.
The deal was that the pro-Federalists (Madison, Hamilton, and others) agreed to add a Bill of Rights as soon as possible if the Anti-s would agree to ratify the main Constitution. This is what occurred.
The task was then assigned to James Madison, the Father of the Constitution, to survey all of the state charters to see which rights should be included in the national constitution, or added to it, to be more precise.
Madison found over a hundred examples in the state charters of guarantees of individual liberty, many of them appearing to cover the same interests in varying language. He boiled them down to twelve amendments containing multiples of rights in each amendment, except for a few single-issue amendments.
Congress adopted ten of Madison's proposed twelve amendments and that became our Bill of Rights, in 1791, four years later.
Chief Justice Marshall pointed out that the Bill of Rights was thus intended to act as a limit on the Federal government only, not the states, that is the United States of America, not the State of Maryland or its political subdivision, the City of Baltimore.
This is why Mr. Barron had to lose.
Why, I craftily asked the student who so nicely presented Barron last evening in class, didn't Mr. Barron's lawyer simply argue the 14th Amendment, which provides that "No state shall...deprive any person of...property without due process of law?"
Was there something the matter with Mr. Barron's lawyer?
The student was stuck.
Let's look at the date the Barron case was decided, I suggested: 1833.
When was the 14th Amendment ratified? After the Civil War, in 1868. We all got a laugh; almost all, at any rate; I'm not sure the student smiled. Mr. Barron was 35 years ahead of his time, unfortunately.
Mr. Barron was left to sue his State for the wrong he suffered. But as we have seen, Maryland had already turned him down. So he had no recourse but to bear his loss himself.
Too bad, but that's the way it goes when you get mixed up with Con-law. Sometimes you find out you've been wronged but have no recourse if the power does not exist to rescue you. It's about power, not fairness. It's a tough world, as we see.
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That brings us to the Slaughterhouse cases.
Suppose a few corrupt state legislators got together and decided that your soon-to-be-acquired law license will be no good for appearing in the Superior Court of California. You could appear only in the old Municipal Court, now called, since consolidation, the Superior Court (Limited Jurisdiction). Small claims court, essentially.
Instead, only lawyers working for a new government monopoly corporation will be allowed to appear in Big-Boys Court, the Superior Court having unlimited jurisdiction.
No clients will come to you. You will not be able to make a living.
This new lawyers corporation is given a franchise, a legislative monopoly. And only the favorites of this cabal of legislators are allowed in. For the good of the public, this is done, to protect the health, safety and morals of the population against allegedly unscrupulous lawyers...you.
Got the picture?
Okay, now, back to New Orleans, Louisiana. The time is 1869. The Civil War is over. There's a Reconstruction Government running Louisiana. Games are afoot. New Orleans is hot. Slaughterhouses attract flies. There are a lot of white run butcher shops in New Orleans. There is no refrigeration. No air condition in the days before electricity.
Smells, rats, and flies abound through neighborhoods near the slaughterhouses and butcheries. Disease follows. Something has to be done. Public health and safety is at issue, the legislature says. Maybe. Maybe not. Maybe the legislature is dealing under the table, too. Maybe some of both. Remember, crooked legislatures are a Con-Law red herring.
Justice Marshall in Fletcher v. Peck (the Yazoo land scam case with the bought and paid for Georgia legislature) held that if you don't like crooked legislatures you have something called the political process: don't bother the Court, vote the rascals out. Don't be misled by red-herrings in the form of crooked Solons.
The legislature decides to put out of business all of the butchers who slaughter their own meat throughout the city. A new slaughterhouse will be set up by a new corporation operating under a franchise of the state legislature, a monopoly. Only certain butchers need apply.
Since this is just after the slaves were freed, there are few if any blacks operating butcher or slaughterhouse operations as owners, one may surmise. The butchers put out of business are white, which becomes significant to the decision in the case they now bring.
The butchers hire a talented lawyer who knows something about Constitutional Law named Campbell. Before the Civil War he had been a justice of the United States Supreme Court. He quit to join the South upon secession.
Campbell advised the butchers to bring their case based on the new 14th Amendment, ratified in 1868 after the Civil War. The reason was that the 14th amendment was a cornucopia of new constitutional guarantees prohibiting state, not federal, tyranny, including: privileges and immunities, equal protection, and due process of law against uncompensated takings (the butchers argued that the state imposed monopoly was a taking because it put them out of business for a governmental purpose).
Clear case for the butchers. They win, right?
Wrong, again! Just as in Barron. Man! This Con-law is tricky. Every time I think I'm right, I'm wrong. I don't know whom to trust any more.
The white butchers lose just as Mr. Barron did and for a similar Con-law reason.
The Supreme Court, with Justice Miller writing the opinion, said that, hey, we've just been through the Civil War seven years ago (he was writing in 1872; the war ended in 1865) that reunited the nation and freed the slaves.
The 13th Amendment (ratified 1865, & prohibiting slavery), the 14th Amendment (1868, as stated above), and the 15th Amendment (ratified 1870, promising the freed slaves the right to vote) were all intended to protect the rights of the newly freed blacks, not any white butchers.
White butchers need not apply, because these Civil War amendments are a package deal designed to consolidate the gains of the North which won the war, essentially. They don't apply to whites. The butchers must seek their recourse under state law, not the federal constitution.
Like Mr. Barron, the butchers had already been turned down by the courts of Louisiana, so this was like telling them to go fly a kite.
Mr. Campbell saw matters differently. He thought that the practice of butchery was a lawful calling from time immemorial, just as farming and any other honest calling, such as lawyering, for example.
No legislature could, in his opinion deprive a person of the right to pursue his happiness by serving as a butcher, farmer, lawyer, etc.
Regulating the qualifications might be one thing, for the public welfare, but there should be no wholesale, blanket restrictions banning the many in favor of the coddled few.
This was a matter of equal protection, privileges and immunities guaranteed by national citizenship as well as state, as well as due process liberty, the freedom to pursue a lawful calling.
In denying Mr. Campbell, the court aborted these pregnant arguments. The P&I clause was gutted to this day. Equal protection, claimed Campbell, does not apply only to blacks but to whites as well; you don't see a restriction of rights to blacks only.
Sorry, said the Court, we don't see it that way. How about due process? Same story. Those amendments protect blacks only.
We've come a long way, obviously. The 14th Amendment protects all persons today, even non-citizens in many, but not all situations.
It took years for the dissents to Slaughterhouse to grow into law. They provided the basis for what we call "substantive due process" today, and for "liberty of contract" to open a business and trade (make purchase and sales contracts, hire and sell labor) that became hugely influential.
"Liberty of Contract," seen as handmaiden to unregulated free enterprise, aka laissez-faire economics, became the dominant economic philosophy of the ruling elite in this country from the Civil War until the Depression brought it to a screeching halt in 1937
The Civil War, recall, was a period of huge economic expansion, fueled by the war and the gold and silver discovered in California and Nevada in 1849 and following. Northern armies needed arms made of steel delivered on railroads.
Coal, iron ore, steel mills, railways, Wall Street financing, insurance, shipping, transportation of farm produce, all burgeoned in this age of aggressive steam as ships and trains employed steam and iron to make them run.
Business corporations and alliances grew that dominated the country politically, economically, socially, educationally (WASPish Ivy League universities) unencumbered by income taxation and government regulation in the name of Laissez-faire and Freedom of Contract.
Pushing a good thing too far, the robber barons stepped on labor, men, women and children working in horrible conditions for pittance wages with no labor protection. The lone workman, held the Court, also had the freedom of contract to sell his labor for the best price he could get, pennies, without unions, and unions were the antithesis of freedom of contract. They were criminal conspiracies and subject to court injunction. Freedom of Contract meant that sauce for the goose, the employer, was sauce for the gander, as though the two enjoyed economic parity. The laborer could turn down the pittance and watch his kids starve while the fat capitalist could turn to another unionless worker unwilling to see his kids starve.
When I ran for a public office in 2002 in San Francisco, for superior court judge, I went to a candidates night at the local labor council to speak and seek an endorsement. I was asked only one question. If endorsed would I promise never to issue a labor injunction? The question had very long roots going back to pre-union days when labor had no protection. Labor has not forgotten the bad old days of laissez-faire economics.
Laissez-faire economics and freedom of contract perverted the notion of ordinary economic and social reform needed to alleviate terrible labor conditions resulting from the Industrial Revolution.
In this country, millions of European immigrants arrived in a few decades, dislocated by terrible economic and social conditions in Europe, from potato famine in Ireland, to revolution in Germany, to poverty and lack of opportunity in Italy and in the Slavic countries of the Balkans, and Central and Eastern Europe.
Minimum wage, child-labor, protection of women, workers compensation for job-related injury, worker safety, were major reform effors declared unconstitutional by the Court in the name of Laissez-faire. See Justice Holmes's dissent in Lochner, called the greatest dissent in Supreme Court history by those who don't think Justice Harlan's was in Plessy.
In 1937, the Court, in the face of a revolt by Franklin Delano Roosevelt in the form of his court-packing plan (adding six justices, one for every geezer over 70), flipped (the Switch in Time that Saved Nine) and went out of the Super-legislature business, deciding no longer, in economic and social reform legislation cases, state and federal, to substitute its judgment as to the wisdom of statutes, but to restrict itself to questions of rationality and power.
The three exceptions to this blanket exercise of judicial restraint were set forth in Footnote Four of Carolene, the most famous footnote in Con-Law history, in 1937, as: textual guarantees, trampling on the rights of "discrete and insular minorities" unable to protect themselves through the political process, and in cases skewing the political process itself, such certain types of gerrymandering (adroit racial and political redistricting to reduce the vote of your opponent); see Davis v. Bandemer).
This is why we study Slaughterhouse, not because its majority holding has been so wonderful, but because its holding has proved so limiting to P&I to this day, and for its dissent.
The dissents were fertile, leading to beneficial aspects of substantive due process which we still use today to guaranty liberty: privacy, abortion, sexual freedom, freedom of association, of choice of life partners, exercise of gender status, the right to raise one's children in the religion and using the language of one's choice (there had been laws prohibiting parental choice, substuting the tyranny of the majority, instead; see Pierce v. Society of Sisters and Myers, 1923, 1924; McReynolds, J.), etc.
In brief, Slaughterhouse cut short P&I, EP and DP. But the dissents breathed life into the word 'liberty' of the 14th Amendment. And that breath grew into Griswold, Roe, and Lawrence today, privacy and liberty. It's as good as we've been able to make it against great opposition.
As pointed out in class, the Bill of Rights includes many individual criminal law protections such as against excessive bail, cruel and unusual punishment, double jeopardy, jury trial, right to counsel, involuntary confession (under federal due process), unreasonable search and seizure, etc., and none of these, under Barron, protected individuals from violations committed by state police, prosecutors and judges. See Palko v. Connecticut.
Under constant pressure to protect individuals from unfair, unjust, oppressive state prosecutorial techniques at variance with higher federal standards, the Court devised a technique, on a one-by-one basis called "selective incorporation" (as opposed to wholesale or all-at-once-incorporation) whereby it has managed to incorporate almost all of the criminal law protective rights in the Bill of Rights to protect against unconscionable state prosecutorial action.
Would Mr. Barron likely win his case today not only under the 14th but the 5th Amendment as well?
It's an academic or moot point in light of the 14th Amendment and I'm not willing to spend the time running down a better answer than this: the incorporation doctrine has been applied to criminal protections, not civil, and Barron's case was civil.