The Slaughterhouse Cases: Does any one
understand the Court'slogic?
Mary L. Dudziak
mdudziak at law.usc.edu
Tue Oct 31 11:02:10 PST 2006
I actually did archival research on this a lifetime ago, for a labor
history grad seminar w/ David Montgomery. I even have a copy of the
architect's plans for the centralized slaughterhouse somewhere in a
long-lost law school basement file cabinet. What the butchers said in
their affidavits (avial in the National Archives files for the case) was
that one of the reasons they objected to the monopoly was that the
Crescent City slaughterhouse set-up was all wrong & didn't allow them to
work in a "butcher-like manner." There was a very legitimate public
health issue involved -- NO had, if I remember correctly -- the nation's
highest death rate, including cholera deaths. Many butchers lived in a
community that was up-river from the waterworks. The city employed
someone just to skim the scum off the top of the reservoir! But it
still took bribery & chicanery to get the Slaughterhouse bill through
the state legislature. But as for the butchers -- the reason many of
them were displaced was that their community was affected b/c of where
they lived & worked. Their slaughterhouses were right there in their
neighborhoods. You know how some folks have a shop in their garage?
They had butcher shops adjacent to their homes. They lost their shops,
lost their manner of working, and, in effect, to remain butchers ended
up in something akin to a factory.
...sorry I never published anything on this...
Mary
Mary L. Dudziak
mdudziak at law.usc.edu
Judge Edward J. and Ruey L. Guirado Professor of Law, History and
Political Science
University of Southern California Law School
Address while on leave (2006-07):
34 High St.
Sharon, MA 02067
Newest Book: Legal Borderlands: Law and the Construction of American
Borders (2006)(with Leti Volpp).
http://www.press.jhu.edu/books/title_pages/9068.html
Review:
http://prelingerlibrary.blogspot.com/2006/05/current-reading-legal-borde
rlands.html
SSRN Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=23850
-----Original Message-----
From: Paul Finkelman [mailto:PFink at albanylaw.edu]
Sent: Tuesday, October 31, 2006 1:48 PM
To: stevenjamar at gmail.com; Mary L. Dudziak; CONLAWPROF at lists.ucla.edu;
RZietlo at utnet.utoledo.edu
Subject: RE: The Slaughterhouse Cases: Does any one understand the
Court'slogic?
I am not sure if Mary's chacterization is wholly right; I am working
from memory here, but didn't the ordinance simply require cental
slaughering, and did not affect butchering and sales; given the state of
public health and the below sea level status of NO it seems to me the
case should have been decided on police powers grounds as and example of
a city that is trying to regulate slaughtering and contain it. The
monopoly was only on where animials were slaughtered, not who did it or
how the meat was the butchered.
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
pfink at albanylaw.edu
>>> "Mary L. Dudziak" <mdudziak at law.usc.edu> 10/31 10:40 AM >>>
Paul, since you brought up the butchers -- their affidavits say nothing
about the Confederacy. What was happening on the Court was rather
disconnected from what was happening in their communities, but the
plaintiffs had been practicing their trade using particular methods that
differed by cultural tradition (the French butchered one way, others did
it other ways), and they were losing their small shops and control over
the way they worked since monopolization also standardized butchering.
As you mention, the politics were extremely complicated, but part of the
story is a labor history story about small business people losing out to
centralization/industrialization. This gets sidelined as the case took
on broader national significance.
Mary
Mary L. Dudziak
mdudziak at law.usc.edu
Judge Edward J. and Ruey L. Guirado Professor of Law, History and
Political Science University of Southern California Law School Address
while on leave (2006-07):
34 High St.
Sharon, MA 02067
Newest Book: Legal Borderlands: Law and the Construction of American
Borders (2006)(with Leti Volpp).
http://www.press.jhu.edu/books/title_pages/9068.html
Review:
http://prelingerlibrary.blogspot.com/2006/05/current-reading-legal-borde
rlands.html
SSRN Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=23850
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Tuesday, October 31, 2006 10:07 AM
To: stevenjamar at gmail.com; CONLAWPROF at lists.ucla.edu;
RZietlo at utnet.utoledo.edu
Subject: RE: The Slaughterhouse Cases: Does any one understand the
Court'slogic?
I want to offer a heretical suggestion.
The butchers were former Confederates, represented by a lawyers who had
resigned from USSC to join the confederacy. The statute at issue was
passsed by a Republican government in La. This was a very politcal
case. Miller, not the sharpest knife in the drawer, did not want give a
thing to these plaintiffs for a number of political reasons. The case
is confused because Miller was confused about how to accomplish what he
wanted to accomplish. On top of that, most of the Court could not
escape its antebellum constitutional theory, despite the new Amendments
and War. The justices just did not see that the law of the nation was
now really different because of the 3 amendments. Trapped by their own
antebellum states rights view -- a view that most antebellum Americans
had, even Republicans before the war. This does not make it any easier
to explain the doctrine, but helps us understand why the doctrine is
pretty much incoherent.
Paul Finkelman
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
pfink at albanylaw.edu
>>> "Zietlow, Rebecca E." <RZietlo at utnet.utoledo.edu> 10/31/06 9:50 AM
>>>
Without disagreeing with any of the comments of the others, I still
think the Slaughterhouse Cases pose a challenge both from the term of
professors' understanding of it, and how we can explain it to the
students. After much thought and study, I think I figured out a good
way to explain it without being too simplistic. The issue is, what are
"privileges or immunities of citizenship?" There are three possible
theories that could have been accepted by the Court in Slaughterhouse:
1) That the Ps or Is were the protections of the Bill of Rights, that
the Court had interpreted not to apply to the States in Barron v.
Baltimore - in other words, the P or I clause effectively overturns
Barron; 2) that the Ps or Is were a broader category of individual
rights, those fundamental human rights ("natural rights") listed by
Judge Washington in the influential Corfield decision. 3) The Ps or Is
encompassed a smaller category of rights than the bill of rights - also
an indeterminate category of rights, but smaller than say Senator
Trumbull's broad language of natural rights.
In Slaughterhouse, as Bryan Wildenthal has described so well, the
butchers advocated the second, "natural rights" theory, and the Court
rejected it. The Court said that those fundamental natural "Corfield"
rights are the rights of state citizenship, still protected by the
states (not the feds) and explained this decision on the grounds that
Steven and Sandy described (it can't be overturning federalism, which I
agree is crazy given the historical context). However, there are still
some rights that are protected by federal citizenship - those rights
which "owe their existence to the Federal government, its National
character, its Constitution or its laws." The conventional view of the
S-H cases is that this a very small category of rights, but as some
scholars (including William Rich and I) have argued, it could be
interpreted quite broadly.
Finally, as Wildenthal explains, because the butchers did not rely on
the Bill of Rights, the S-H Court really did not take a position on the
question of whether the P or I clause incorporated the Bill of Rights.
In other words, the Court left open the question of whether theory 1or
3
were the correct reading of the P or I clause. The Court's language
about not turning federalism on its head seems to indicate a leaning
towards the more restrictive, third theory. S-H was subsequently
interpreted to stand for this reading, which is perhaps why it is
confusing to understand and teach this case.
I hope this makes sense, and would welcome comments. I am teaching
Slaughter House again next week.
Along with Pamela Brandwein's excellent book, I would also strongly
recommend Bryan Wildenthal's two Ohio State articles about
Slaughterhouse and the incorporation debate (and his book about the
same, when it comes out!)
Rebecca Zietlow
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, October 31, 2006 8:24 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: The Slaughterhouse Cases: Does any one understand the
Court'slogic?
The Civil War Amendments were intended to be transformative in
important
ways, at least by some advocates of them, as were the Civil Rights
Statutes.
However, the Supreme Court was, as it typically is historically,
conservative and was indeed, in my opinion, tied to the old federalism
and very distrustful of the new arrangement. Indeed, I think they
even
went so far as to consider the 13th Amendment as almost illegitimate
and
the 14th as only really addressing the federal government, despite its
text being to the contrary.
My reading of the history and the cases and the motivations is, of
course, a contested one, but, it is how I make sense of them based on
my
limited knowledge of the history of that period and of my personal
understanding of human nature and the institution of the Supreme
Court.
So, I think Bobby's point about the court narrowing the amendments to
as
close to the vanishing point was exactly what they were doing and that
there were two essential motivations to do so: (1) a sense that the
Constitutional balance was violated so seriously that they could not
mean what they said (despite legislation giving effect to the broad
reading and the specific enforcement clauses given to Congress in
them)
and (2) a genuine belief that they were wrong-headed so that even if
they were as broadly intended as they seemed, they should not be so
applied and so the court used its power to redirect the law.
Of course this was nothing new then and is certainly old hat by now --
the switch in time that saved nine and the related legitimating of the
fourth branch of government (independent administrative agencies)
certainly qualify.
As to a finer-grained response -- I agree with Sandy and would add
that
state P&I as distinct from federal P&I was the norm and still is --
one
can have P&I and rights vis-a-vis the states that are different from
those vis-a-vis the federal government. Having a proportionally
representative government being one, and a right to an education being
another in some states. From this perspective the decision seems just
wrong, but jurisprudentially incoherent. Indeed, one can read the
decision itself as a window on the historical mindset of at least some
powerful people of the period. That is, the decision itself is
evidence
at least as much as it is law.
Given the speculative and contested nature of nearly all of this, I
stand ready to retract any and all of it after further discussion and
reading and learning and thought.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:stevenjamar at gmail.com
Washington, DC 20008
http://iipsj.com/SDJ/
"I care not what subject is taught if only it be taught well."
Thomas H. Huxley
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