Vol. 14 No. 1 (January 2004)
THE SLAUGHTERHOUSE CASES: REGULATION, RECONSTRUCTION, AND THE FOURTEENTH AMENDMENT by Ronald M. Labbé and Jonathan Lurie. Lawrence: University Press of Kansas, 2003. 295 pp. Cloth: $34.95. ISBN: 0-7006-1290-4.
Reviewed by Kevin R. C. Gutzman, Department of History and Non-Western Cultures, Western Connecticut State University. Email: firstname.lastname@example.org.
The United States Supreme Court's decision in THE SLAUGHTERHOUSE CASES is one of the great landmarks of American constitutional history. Never before, however, has it been the subject of a scholarly monograph. With the publication of this new study, which meets the University Press of Kansas's usual high standards, the litigation that culminated in the Supreme Court's opinion at last has received the attention it deserves.
Before I read this book, my understanding of the events that led to the case had been that of Justice Field in his SLAUGHTERHOUSE dissent: the Louisiana legislature gave one group of people the exclusive right to practice the trade of butcher in New Orleans, and many innocent people - competing butchers and the public alike - suffered as a result. Fortunately, in the end, Field's view of the breadth and applicability of the Fourteenth Amendment's guarantees of rights came to be that of the Court's majority, and until the demise of LOCHNER, Americans had the right to practice the common trades freely.
Okay, I cannot say that I was given a positive spin on LOCHNER in law school or en route to my Ph.D.; that was owing to my own idiosyncrasies. Still, the idea that Field was right about the facts giving rise to SLAUGHTERHOUSE is pretty widely held-if only because of the form of instruction almost universally employed in American law schools and legal history courses. Among Labbé and Lurie's great contributions here is to lay that idea permanently to rest.
The authors' research can only be described as prodigious. They seemingly have read everything there is to read about New Orleans' civic health problems, besides the European history of abattoirs, and the signal success of this book lies in having made a detailed account of the debate over relocating New Orleans' slaughterhouses interesting even to the most scientifically ignorant (e.g., me).
The authors note early on that 19th-century New Orleans was known to have "a staggering death rate," with yellow fever and cholera epidemics playing their parts frequently (p.6). Chapter 2, "Private Gain, Public Health, and Public Policy in Antebellum New Orleans," chronicles the sorry history of the city fathers' dawning awareness that something was amiss in New Orleans and their initial halting attempts to do something about it.
Early Republican and antebellum New Orleans, it seems, was the sickliest city in the United States, with a mortality rate several times as high as those of Boston and Charleston, New York and Baltimore (p.30). One cause of the periodic epidemics of deadly disease in the Crescent City was the dispersion of slaughterhouses throughout the metropolitan area. Residents of New Orleans contributed to their own misery by promiscuously dumping all types of refuse in the streets, on the levees, and in the river itself (pp.28-9, 34). In the concluding section of this chapter, occupying General Benjamin Butler forces his subjects to clean up their city, and the dozens of pre-Civil War epidemics in New Orleans have no counterparts during the years when the United States Army runs the city. The authors' clear implication is that what New Orleanians most needed was the political will to clean up their city.
Chapter 3's subject is "Regulation Prior to Slaughterhouse." In short, regulation was sparse, and supply followed demand, literally: as population moved upriver, so did the operations of the stock providers. By 1868, a local newspaper calculated that there were 150 slaughterhouses in and around the Crescent City, and the dispersion of the butchers gave them significant power in city government, both in New Orleans and in nearby Jefferson City. This power resulted in lax enforcement of slaughterhouse regulations even when there were any.
What solution could the city adopt? In both ancient and modern times, large cities had adopted measures requiring all slaughtering to be conducted in one public slaughterhouse (pp.41-2). New York City first did so in 1676 (p.45). Still, Labbé and Lurie show, American jurisdictions remained divided on the question whether slaughtering constitutionally could be confined in this way. In fact, an 1867 Illinois Supreme Court decision said that if a city confined the beef business to a particular sector of its territory, it had to continue to allow "all persons" to engage in that business (Ibid.). In general, however, the police power doctrine superordinated governmental concerns about public health to private interests (p.50).
With the departure of the Union Army, New Orleans returned to its old, unsanitary ways. A year later, yellow fever was back (p.53). In general, the political system of New Orleans, and Louisiana, could not deal with so large and powerful an interest as the metropolis's butchers - until the meeting of the legislature in 1869. Finally, the state's politicians became concerned over the fact that, as one New Orleans health official testified, "The amount of filth thrown into the river above the source from which the city is supplied water, and coming from the slaughterhouses, is incredible. Barrels filled with entrails, livers, blood, urine, dung, and other refuse portions in an advanced stage of decomposition, are being constantly thrown into the River, but a short distance from the banks, poisoning the air with offensive smells and necessarily contaminating the water near the banks for miles" (p.61). The city's health officials recommended that Louisiana adopt the expedient implemented by Napoléon I for Paris in 1807: establishment of a single abattoir for the city.
Finally, through a process chronicled in Chapter 4, a centralized abattoir for the city was established in 1869. Opponents of the concept argued from the beginning that legislative corruption was involved; their goals included, in the account given here, both selfish ones and broader dislike of the Reconstruction regime in Louisiana. One must recall that, as most famously displayed in Andrew Jackson's 1832 Bank Bill Veto Message, Jacksonian Democrats loathed the idea of monopoly, and that the idea of "corruption" found application to many 19th-century situations to which we have now become habituated. Still, Labbé and Lurie provide abundant evidence for the suspicious that something was wrong in the state of Louisiana, both in the legislature and in the governor's quarters.
Chapters 5 and 6 chronicle the various litigation challenges to the slaughterhouse act in both the state and lower federal courts. Through it all, the authors track the related jumps and dives of the Crescent City Company's stock and the public's opinion of the matter, as manifested in public demonstrations, newspaper coverage, elections, and various other ways. Again, this study leaves virtually nothing wanting in its thoroughness. As to the course of the lower-court litigation, suffice it to say that everyone who might conceivably have had a claim seems to have raised it, that the judges involved took disparate (seemingly predetermined) positions, and that very able, eminent counsel represented each of the parties. Labbé and Lurie do an exemplary job of describing an extremely intricate course of events, and these two chapters are worth reading for the craft of their construction alone.
Chapter 7 provides brief portraits of the members of the Chase Court. Perhaps the least interesting section of this work, it is an essential one. Succeeding chapters' titles are "The Arguments," "Decision and Dissents," and "Conclusions." One may suppose that Professor Labbé, a political scientist widely published on the history of Louisiana, had rather more to do with writing the first six chapters, while Professor Lurie, a historian and adjunct law professor, first sketched the outline of this section, which follows the standard outline of historians' studies of particular precedents.
What is new in the latter portion of the book? Labbé and Lurie want us to consider the possibility that Justice Miller and his colleagues did not mean for their decision in THE SLAUGHTERHOUSE CASES to be as significant as it turned out to be. Rather, they say that Justice Miller, who had been a physician, predictably and rightly sympathized with the argument that Louisiana needed to deal with the appalling sanitation problems in its largest city, and they applaud him for seeing through former justice John A. Campbell's misstatements concerning the slaughterhouse monopoly's significance for individuals involved in that trade in the New Orleans area. They also ask their readers to consider the difficult task SLAUGHTERHOUSE presented to the Court, which had both to avoid effectively making the Fourteenth Amendment null and to avoid pulling virtually all matters of local cognizance into its own jurisdiction.
In their conclusion, the authors offer up the idea that the Privileges and Immunities Clause of the Fourteenth Amendment can be reinvigorated by the Supreme Court whenever the Court's majority is of a mind to use it. This echo of Justice William Brennan's "Rule of Five" will strike the reader as either hopeful or alarming depending on his own philosophical bent. For my part, I would prefer for the Court's majority to demonstrate more of the devotion to federalism that so shaped the Court's decision in SLAUGHTERHOUSE.
LOCHNER v. NEW YORK, 198 US 45 (1905).
THE SLAUGHTERHOUSE CASES, 83 US 36 (1873).
Copyright 2004 by the author, Kevin R. C. Gutzman.