Author: Timothy Sandefur
You’ll be hearing a lot in coming months about the Slaughterhouse Cases, given that the Supreme Court is poised to reconsider that decision in McDonald v. Chicago. Slaughterhouse, you’ll recall, is the 1872 decision in which the Supreme Court essentially erased the Fourteenth Amendment’s privileges or immunities clause—the provision that the its authors intended to be the primary protection for individual rights under the Amendment.
Although legal scholars now generally agree that Slaughterhouse was wrongly decided, and although many historians have regarded it as the first of the disastrous series of cases in which the Supreme Court backed away from Reconstruction efforts to protect the rights of former slaves in the post-Civil War south, there’s been surprisingly little serious attention devoted to Slaughterhouse by historians. In fact, there’s only one book on the case—Jonathan Lurie and Ronald Labbé’s 2003 book The Slaughterhouse Cases, which I reviewed (very negatively) for the Claremont Review of Books.
Among other things, Labbé and Laure argue that John Campbell, the attorney representing the butchers in the Slaughterhouse Cases, saw the case as an opportunity to attack Reconstruction by publicizing the corruption of the integrated Louisiana legislature. His defense of the butchers was really a sophisticated plan to destroy reconstruction. “His short-range target was, of course, a specific statute. But his long-range objectives, again, were the conditions and circumstances that enabled a Louisiana legislature to convene and enact such offensive legislation in the first place.” It’s certainly plausible that Campbell took the case for this reason, and used it as an vehicle for attacking what he (with much plausibility) saw as a corrupt state legislature.
But on the other hand, Campbell was arguing in favor of enforcing the strong limits on state autonomy created by the Fourteenth Amendment’s privileges or immunities clause: he was arguing in favor of strong federal power to protect civil rights and limit state autocracy! It was the other side—the state of Louisiana—that successfully argued against federal power to protect individual rights in the Reconstruction south. And to make that argument, the state of Louisiana relied on the talents of one of America’s most outspoken enemies of reconstruction: Jeremiah Sullivan Black.
Jeremiah Black was a leader of the American bar. He had served as Chief Justice of Pennsylvania in the 1850s, before being appointed Attorney General of the United States by his fellow Pennsylvania doughface, James Buchanan. In the waning days of the Buchanan administration, the president made him Secretary of State, and then tried to appoint him to the U.S. Supreme Court—only to have the appointment blocked by the newly Republican Senate. After the war, Black served as an advisor to Andrew Johnson, stridently opposing Reconstruction—which he likened to the Russian occupation of Poland. He drafted Johnson’s veto of the Reconstruction Act of 1867, and then devoted his legal energies to defeating Reconstruction and federal civil rights laws in the courts, in Ex Parte McCardle, Ex Parte Milligan, and Bylew v. United States. Then he turned to the Slaughterhouse Cases.
A strident believer in states’ rights constitutionalism, Black believed that the federal Constitution imposed only the flimsiest of limits on state autonomy. The basis for this belief was his theory that when the United States declared independence from Great Britain in 1776, the sovereignty formerly enjoyed by Parliament was transferred not to the nation as a whole (as nationalists like Abraham Lincoln, Charles Sumner, or John Quincy Adams believed) but to each individual state separately. Because Parliament’s sovereignty was, in Blackstone’s words, “supreme, irresistible, absolute, uncontrolled” power—power to “do every thing that is not naturally impossible”—that meant that states enjoyed complete power to do whatever they wanted, with only those exceptions specified in the federal Constitution. There were no moral or natural law limits on state authority.
We know all this because of Black’s most famous decision as Chief Justice of Pennsylvania: Sharpless v. Mayor of Philadelphia, one of the most important—and sadly, now forgotten—cases in American constitutional history. In Sharpless, Black explained his view of state authority:
In the beginning the people held in their own hands all the power of an absolute government. The transcendant powers of Parliament devolved on them by the revolution. Antecedent to the adoption of the federal constitution, the power of the states was supreme and unlimited. If the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat…. The powers not given to the government of the Union were bestowed on the government of the state, with certain limitations and exceptions, expressly set down in the state constitution…. [T]he state may do whatever is not prohibited….
[I]f there had been nothing elsewhere to qualify [the legislative authority described in the state Constitution, it] would have given to the Assembly an unlimited power to make all such laws as they might think proper. They would have had the whole omnipotence of the British parliament…. [B]eyond [the specified limits in the state bill of rights] there lies a vast field of power… Of this field the General Assembly is entitled to the full and uncontrolled possession. Their use of it can be limited only by their own discretion.
This was precisely the opposite of the view of state authority held by the leaders of the Republican Party—men like Charles Sumner, Frederick Douglass, Abraham Lincoln, and of course John Bingham, who wrote the privileges or immunities clause. They believed, by contrast, that the “self evident truths” specified in the Declaration of Independence meant that no state could enjoy such “transcendant” powers: government authority was limited by certain principles of justice even where not specified in the Constitution. These principles of justice included certain natural rights which no state could rightly abridge. And it was to protect those rights against state authority—to constitutionalize their belief that states did not enjoy a “full and uncontrolled” legislative power—that they wrote the Fourteenth Amendment.
Black believed the notion that the federal government could protect individual rights against state interference was nonsense “inserted in the creed of the abolitionists because they supposed it would give a sort of plausibility to their violent intervention with the internal affairs of the states.”
It was Black, not Campbell, who succeeded in fatally weakening Reconstruction in the Slaughterhouse Cases. Black argued that states enjoyed an unlimited field of power, and that the Fourteenth Amendment didn’t really mean what it said, because if it did, it “would break down the whole system of confederated State government.” As Black’s fawning biographer, William Norwood Brigance wrote,
Undeniably…the first section of the Fourteenth Amendment had been written with the deliberate intent to nationalize all civil rights, to make Federal power supreme over the States…. The Southern States had been forced to ratify the Amendment as a condition of escape from military rule. But suppose the Supreme Court should rule that the slaughterhouse dealers of Louisiana could secure no redress under this Amendment? The effect of such a decision would be a lasting thing, cutting out bodily this part of the Amendment. It would smash the intent of the Radicals. It would restore civil rights to the States [sic!]. In the end, it would leave Louisiana free to deal with Carpetbaggers in her own way as soon as military force should be removed. To a trenchant defender of States Rights…as was Black, there could be but one side to such a controversy.
Thanks to Black’s success in Slaughterhouse, Brigance wrote, the privileges or immunities clause “was severed from the Constitution…. It is not an overstatement to say that by it, State sovereignty was saved from annihilation.” In other words, Black succeeded in demolishing the most important element of Republican antislavery ideology—the principle that all Americans enjoyed certain natural and common law rights, and that the federal government would protect those rights against state interference. that was the concept that culminated in the ratification of the privileges or immunities clause, and that was undone by the Court’s decision. Black’s daughter Mary could justifiably say that “the modification and at length the practical abandonment of that policy [i.e., Reconstruction] was in no small measure due to the merciless assaults of Judge Black.”
In attacking the corrupt legislature of Louisiana, John Campbell may have done some damage to the policy of Reconstruction. But by essentially erasing the most important clause of the Fourteenth Amendment, it was Jeremiah Black who dealt it the far more serious blow—a blow from which American law has still not recovered, a century and a quarter later.