The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873

Few constitutional provisions have died as young as this one. Ratified in July 1868, the Privileges or Immunities Clause of the Fourteenth Amendment was meant to be the centerpiece of the nation's new birth of freedom. By April 1873 the Supreme Court had read it so narrowly that it protected almost nothing a state would ever think to violate. The cause of death was a case about cows.

That is not a joke at the case's expense, or not only one. The Slaughter-House Cases began as a fight over a butchering monopoly in New Orleans, and they ended by shaping the entire course of American constitutional law for the next century and a half. When you hear judges talk about "substantive due process" or "incorporation," you are hearing the echo of a door the Court closed in 1873. Here is the case, start to finish, and why a growing number of conservatives think the door should be reopened.

The clause

Section 1 of the Fourteenth Amendment reads, after its citizenship sentence:

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.

Three clauses, three different protections. Notice the difference in their subjects. Due process and equal protection protect any person. The first clause protects citizens, and it speaks in a different register: not procedure, not equality, but the privileges or immunities that belong to American citizenship. The phrase had a history, which matters a great deal for what follows.

The facts: a monopoly on the Mississippi

In 1869, the Louisiana legislature passed a law creating the Crescent City Live-Stock Landing and Slaughter-House Company and giving it, for twenty-five years, the exclusive right to land and slaughter livestock in New Orleans and the surrounding parishes. Independent butchers were not banned from working, but they had to do their slaughtering at the company's facility and pay the company fees set by the statute.

The state's defense was public health. New Orleans butchers had long dumped waste into the Mississippi upstream of the city's water supply, and centralizing slaughter below the city was a defensible sanitary measure. The butchers' answer was that the law did far more than regulate. It handed a private company a monopoly over their trade, passed amid charges of legislative corruption, and turned hundreds of independent tradesmen into tenants of a favored corporation.

The butchers, organized as the Butchers' Benevolent Association, sued. Their lawyer was John A. Campbell, a former Justice of the Supreme Court who had resigned in 1861 to join the Confederacy. There is irony in that: the former secessionist argued that the new amendment had made the federal government the guardian of the citizen's fundamental rights against his own state.

The question

Did Louisiana's monopoly violate the Fourteenth Amendment, and in particular did it abridge the privileges or immunities of citizens of the United States, by taking away the butchers' right to pursue a lawful calling?

The holding

On April 14, 1873, the Court answered no, by 5 to 4. Justice Samuel Miller wrote for the majority. Four Justices dissented: Stephen Field, joined by Chief Justice Salmon Chase and Justices Noah Swayne and Joseph Bradley, with Bradley and Swayne also writing separately.

Miller's reasoning, fairly stated

Miller's opinion is often caricatured. It deserves a fair summary, because its concerns were serious.

First, purpose. Miller began with history. The three post-war amendments, he wrote, shared "one pervading purpose": the freedom of the formerly enslaved, the security of that freedom, and the protection of the freedmen from those who had held dominion over them. A white butchers' trade dispute was far from that purpose.

Second, two citizenships. The first sentence of Section 1 makes persons born or naturalized in the United States citizens of the United States and of the state where they reside. Miller drew a sharp line between the two. The rights of state citizenship, the ordinary civil rights of daily life, such as the right to work in a trade, own property and make contracts, remained under the states' protection. The Privileges or Immunities Clause protected only the rights of national citizenship, which Miller defined as rights owing their existence to the federal government.

Third, the short list. What were those national rights? Miller listed examples: to come to the seat of government to assert claims against it; free access to its seaports, sub-treasuries, land offices and courts; protection on the high seas and abroad; to assemble peaceably and petition for redress of grievances; the privilege of habeas corpus; to use the navigable waters of the United States; rights secured by treaties; and to become a citizen of any state by residing there. None of these was at stake in New Orleans.

Fourth, federalism. Miller's strongest point was structural. If the clause protected all the fundamental civil rights of citizens against their states, he warned, the Court would become a perpetual censor upon all legislation of the states, and Congress could assume power over the entire domain of civil rights historically left to them. He did not believe the people had intended so radical a change in the relation between the states and the nation.

Fifth, the other clauses. Miller dismissed the due process argument, noting that no reading of the clause he knew of would treat this kind of trade regulation as a deprivation of property. And he doubted that equal protection would ever be applied to anything but discrimination against the freedmen as a class.

That is the steelman. A conservative who prizes federalism and fears judicial power will find much in it to admire. Miller was trying to keep the Court out of the business of second-guessing every state law. That instinct is not foolish. The question is whether it was faithful to the text the people had just ratified.

The dissents

Justice Field argued that the clause meant what it said. The privileges and immunities of citizens, he wrote, were the natural and inalienable rights that belong to free men, including the right to pursue a lawful employment in a lawful manner, which the monopoly destroyed. If the clause protected only the narrow list Miller described, rights the states had never threatened and could not have threatened, Field said it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people when it passed. The point was devastating: Miller's reading made the clause redundant on the day it was ratified.

Justice Bradley joined Field and added his own argument, which would prove more consequential than either of them knew. He contended that a person's right to choose his calling is itself a form of property and liberty, and that a law depriving whole classes of people of it was a deprivation without due process of law. This was the seed of what later generations would call substantive due process: the idea that the due process clause protects certain rights against state laws, not just against unfair procedures.

Justice Swayne argued that the amendment's language was broad on purpose and that the Court had no authority to narrow it by guessing at a single pervading purpose.

What the framers of 1866 said

Now the decisive historical evidence. On May 23, 1866, Senator Jacob Howard of Michigan introduced the Fourteenth Amendment on the Senate floor on behalf of the Joint Committee on Reconstruction. He explained what the Privileges or Immunities Clause would protect.

He said it would secure, first, the privileges and immunities of citizens guaranteed by Article IV, Section 2 of the Constitution, which reads:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

To explain what those were, Howard cited Corfield v. Coryell, an 1823 circuit opinion by Justice Bushrod Washington. Washington had described the privileges and immunities of citizens as those which are, in their nature, fundamental, belonging to the citizens of all free governments: protection by the government, the enjoyment of life and liberty, the right to acquire and possess property of every kind, to pursue happiness and safety, to pass through or reside in other states for trade or a profession, to claim habeas corpus, to bring suits, and more. Article IV's protections against discrimination by one state against another state's citizens are explained in Article IV Stops States From Punishing Americans for Being From Somewhere Else.

Second, Howard said, the clause would secure the personal rights guaranteed by the first eight amendments to the Constitution: freedom of speech and press, the right to keep and bear arms, freedom from unreasonable searches, the rights of the accused and the rest.

Read Miller's opinion against Howard's speech and the gap is stunning. The sponsor told the Senate that the clause protected fundamental civil rights and the Bill of Rights against the states. The Court, five years later, said it protected access to seaports and sub-treasuries. Miller did not discuss Howard's speech.

What followed: the long detour

The consequences arrived fast and lasted long.

The next day. On April 15, 1873, the Court decided Bradwell v. Illinois, rejecting a woman's claim that the clause protected her right to practice law, relying on Slaughter-House.

The freedmen left exposed. The irony is that Miller's "pervading purpose," protecting the freedmen, was among the first casualties of his narrow reading. In United States v. Cruikshank (1876), arising from the Colfax massacre in Louisiana, the Court held that the rights to assemble and to bear arms were not rights the federal government could protect against private violence under the amendments as the Court read them. The story is told in Cruikshank, Colfax and how the Court left freedmen disarmed in 1876, and the Black Codes the clause was written against are in Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms.

Due process fills the gap. With privileges or immunities closed off, lawyers and judges took Bradley's path. The due process clause became the vehicle. It was used, notoriously, in Lochner v. New York (1905), striking down a limit on bakers' hours as a violation of liberty of contract, a case on which conservatives are themselves divided, as we explain in Lochner v. New York Divides Conservatives More Than Progressives Admit. It was also used, over the twentieth century, to apply most of the Bill of Rights to the states one provision at a time, the process told in How the Bill of Rights Came to Bind the States, One Right at a Time.

So the Court ended up doing, through a clause about process, exactly what Miller had feared it would do through a clause about rights: reviewing state laws for their substance. The difference was that the due process route had less textual anchor and therefore less discipline. Miller tried to prevent judicial overreach and helped produce a doctrine that invites it.

Saenz v. Roe and Justice Thomas

The clause has stirred twice in the modern era.

In Saenz v. Roe (1999), California limited welfare benefits for families in their first year of residence to the amount they would have received in the state they came from. The Supreme Court, by 7 to 2 in an opinion by Justice John Paul Stevens, struck the limit down, holding that the right of a newly arrived citizen to be treated like other citizens of the state is protected by the Privileges or Immunities Clause. That was, notably, one of the rights Miller himself had listed: to become a citizen of any state by residing there. Justice Clarence Thomas, dissenting, wrote that the clause's original meaning had been lost and that the Court should be prepared to reconsider it before relying on it in a new way.

In McDonald v. City of Chicago (2010), the Court held that the Second Amendment applies to the states. The plurality opinion by Justice Samuel Alito used the due process clause and declined to revisit Slaughter-House. Justice Thomas concurred in the result but wrote at length that the right to keep and bear arms is a privilege of American citizenship protected by the Privileges or Immunities Clause, and that the Court should apply the Bill of Rights to the states through the provision the framers actually wrote for that purpose. His opinion walks through Howard's speech, Corfield, the Black Codes and the debates of 1866. We profile that originalist voice in Clarence Thomas Went From Pin Point, Georgia, to the Court's Leading Originalist.

The verdict, and an honest caveat

Here is the argument, in four steps.

1. The text protects citizens' privileges or immunities against the states. It does not say "the few rights already secured against the federal government."
2. The public meaning in 1866 was known. "Privileges and immunities" had a settled pedigree in Article IV and Corfield, and the clause's sponsor told the Senate it covered fundamental civil rights and the first eight amendments.
3. Miller's reading made the clause redundant and left both the freedmen and every other citizen with less federal protection than the amendment's framers intended.
4. The substitute was worse. Substantive due process gave judges a broader and less anchored power than an honest reading of privileges or immunities would have.

The honest caveat: originalists do not fully agree on what the clause, properly read, protects. Some read it to guarantee a set of fundamental rights against state abridgement. Others read it chiefly as a guarantee of equal civil rights, forbidding states to give some citizens fewer civil rights than others. And reviving the clause would not mean judges strike down every regulation they dislike; the original understanding of fundamental rights always allowed reasonable regulation for health and safety. Louisiana's sanitary goals might well have survived a properly drawn rule. What would not survive is the pretence that the clause means nothing at all. Some dissents eventually become law, as we chronicle in Five Supreme Court Dissents That Later Became the Law of the Land. Field's has a respectable claim to be next.

The case in brief

1. The Slaughter-House Cases (April 14, 1873) upheld Louisiana's New Orleans slaughtering monopoly by 5 to 4, with Justice Miller reading the Privileges or Immunities Clause to protect only a short list of rights of national citizenship.
2. Justices Field and Bradley dissented, Field calling the majority's version a vain and idle enactment and Bradley planting the seed of substantive due process.
3. Senator Jacob Howard's May 23, 1866 speech shows the clause was meant to protect fundamental civil rights and the first eight amendments against the states, and Miller ignored it.
4. The result was a long detour through due process, from Lochner to incorporation, that Saenz v. Roe (1999) and Justice Thomas's McDonald concurrence (2010) point the way out of.

What you can do: read Section 1 of the Fourteenth Amendment and Article IV, Section 2 together on the Constitution page, and look up how your state's judges are chosen before the next judicial election using our courts page.